Exceptional Circumstances – the Cart Before The Horse

Within the next two months, aspects of the Police and Crime Act 2017 relating to the Mental Health Act will come into force.

These will affect where a police officer can invoke Section 136 (which will increase the places in which it can be used) and it will stipulate that a police officer must, where practicable, consult with a mental health professional before using Section 136.

Both of these amendments are likely to lead to foreseeable issues. It is almost certain that the use of Section 136 will rise given the fact it will be possible to use it in private places other than dwellings. (The removal of the word “finds” is also likely to legalise the “would you mind stepping outside” tactic which has been previously unlawful. I’m not sure this was the Government’s intention but it’s obvious this will happen.)

In order to mitigate against this possible rise comes the stipulation regarding speaking to a mental health professional before using the power. Except there are some problems here as well.

Firstly – there is no power to hold someone for the purposes of this discussion if they do not wish to remain with the officer. There never has been and there isn’t going to be one. Which means the only lawful recourse available to hang on to someone is to detain them. In other words, use Section 136.

Section 136 remains an “immediate” power. I am still unclear on how, if an officer really genuinely believes the person needs “immediate care and control” they will have the time or option to call someone to discuss this.

Key to this are the words “where practicable” and officers need to be told exactly what their powers are; that you cannot detain someone against their will for the purposes of this consultation and that there will be many occasions where it simply is not practicable to have a conversation before detaining someone.

These matters can be addressed with proper training and briefing though I am not sure whether the world is ready for the increase in Section 136 detentions which I believe is inevitable.

There is, however, an area of these changes to the Act which concerns me even more and that is the question of “exceptional circumstances.”

I think we are all agreed that police cells are no place for people in mental health crisis and efforts to reduce this to a minimum are commendable.

The new law specifies that it will never be lawful to place a person under 18 in police cells if they have been detained under the Mental Health Act but this is not the case for adults.

The law will specify that they should only ever be used in exceptional circumstances but we await clarity on what they are.

My concern is that the exceptional circumstances will centre around violence and will specify that they will apply to those people who “cannot be safely managed elsewhere.”

I know I have blogged about this before but the more I read about it the more concerned I become.

The very people who fall into this category are likely to be the most clinically “at risk” cohort of all.

Perhaps people who show signs of bizarre and aggressive behaviour, shouting, paranoia, panic, violence towards others, unexpected physical strength and hyperthermia (very hot).

Someone with this list is most likely to fall into the unmanageable category and end up in police cell?

Sounds like it would meet the criteria – except – that list should have been in inverted commas. It is actually a list of symptoms from a medical paper by Deborah Mash of the Department of Neurology and Molecular and Cellular Pharmacology at the University of Miami.

It was written in 2016 and is called “Excited Delirium and Sudden Death: A Syndromal Disorder at the Extreme End of the Neuropsychiatric Continuum”.

This is not a new discovery. The world has known about the symptoms of excited delirium since Dr Luther Bell first described it in the 1850’s. It became known as “Bell’s Mania” but it was known to be fatal then and Bell’s observations came from psychiatric patients.

The medical world seems to be at odds with itself over the condition. Some clinicians say it doesn’t exist – some lobby groups believe it has been created as an excuse to cover up police brutality but there is a growing body of evidence – medical evidence – which confirms that it is very real, very fatal, not uncommon and that in some cases there is absolutely nothing you can do to reverse it and it will lead to someone’s death even with first class medical intervention.

If you were to put “acute behaviour disturbance” or “excited delirium” into an academic library search engine (as I have done) you would quickly see that almost all of the papers written about it are medical and that most of the recommended interventions are pharmaceutical.

The one thing that all the papers seem agreed on is that physical restraint is a really bad intervention. At least one medical paper suggests that use of taser is actually a safer option but restraint is not recommended and it is largely all the police have.

I am not medically qualified but the main complications appear to involve restriction of oxygen leading to hypoxia, an increasing heart rate and extreme internal body temperature. All of which are potentially life threatening and require immediate medical support.

And yet the main physical manifestation appears to be violence and resistance. Which means they might be “unmanageable” and therefore end up in a police cell – which is the very last place they should be.

The issue is complicated by the fact that even though there is still some dispute over this condition across the world it appears to be particularly bad in the UK. Some clinicians and agencies do not recognise the terminology and others still actually do not believe it exists. This confusion and tension is happening more frequently. Police are being trained in it but clinicians and medics are telling them there is no such thing when they call for assistance.

In the USA, Australia, South Africa and in other parts of the world police officers dealing with someone they believe to be in this state can call paramedics to the scene who will administer strong sedatives and take the person to hospital.

This is not without potential complications. The arrival at hospital needs to be really fast in order to monitor heart function, temperature and airways amongst other things.

In the U.K., paramedics are not allowed to administer this type of medication for this purpose. Only pre-hospital doctors. As far as I am aware it is not an authorised medical intervention in this country – at least not outside of a hospital.

I am happy to be corrected on that issue but either way – the kind of help that actually appears to be required and which is used in other countries and appears to be clinically recommended does not appear to be readily or immediately available in the UK.

I know for a fact that police cells certainly do not have the right staff or equipment on hand but it is my fear that this is exactly where people in this state will end up and the law will almost encourage it because of how it is worded.

At the very least, if this is to happen, we need the right medical assistance to be sent to custody units and for them to arrive at the same time as the officers do.

It is clear from everything I have read on this subject that this is a clinical matter and a very serious one at that.

There appear to be three or four different types of this behaviour depending on whether the cause is alcohol, physical illness, psychosis or drugs or a bad reaction to medication. It would appear, however, that the presentation and symptoms are the same. The end result is often the same. Death.

Over the years we have got used to people being excluded from clinical premises because they were intoxicated, because they were violent or because they appeared to be under the influence of drugs.

This prompts the question of whether we have got into the habit of trying to treat or identify the cause of the crisis and then try to put it somewhere else before dealing with the crisis itself. The cart  before the horse.

What is also clear from the case studies in the papers is that the behaviour being displayed by the individual concerned actually led people to call the police rather than an ambulance. Whether it be aggression or other bizarre behaviour – people’s first response was to call the police.

The police would then turn up and deal with what was completely a medical matter, not recognise it as a medical matter and deal with it using the methods and training they had – restraint, handcuffs, limb restraints, arrest, cells……. death.

At present we have officers now recognising it as a medical matter and the medical world saying it isn’t. We need agreement on this urgently.

But here is the thing – if we know that the use of restraint on someone we suspect to be suffering with excited delirium or acute behaviour disturbance is so dangerous then, by going into restraint, we are applying potentially lethal force.

We know we are – science tells us we are.

We send “potentially lethal force” to firearms incidents but that comes with three levels of command, officers with a rigorous 12 week selection and training course with frequent refreshers and a whole book of Approved Professional Practice and tactics. We need to treat this with the same reverence and respect and we need others to help us.

What we need is to agree the science, agree the terminology and agree the response. It should be a medical response. No issue with police going in the first instance because history shows us that people WILL call the police first.

But once the police get there and identify what they think they are dealing with they need urgent medical back-up from people who are authorised, trained and equipped to offer the right assistance.

We cannot ignore this any more. Too many people have died. Too many officers have been accused of brutality when it looks as though they have been dealing with a very serious medical condition which was confused as violence and actually presents as violence.

This needs sorting out because the law is about to change and it could mean some critically unwell people will be refused medical treatment because they appear violent or unmanageable.

This places the person and the police officers involved in a very serious, very vulnerable and very unfair position.

The science is there. The evidence appears to be there. If we really are interested in “what works” and more importantly “what doesn’t work” then this seems to be as good a place to start as any.

Lives and careers depend upon it.


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4 responses to “Exceptional Circumstances – the Cart Before The Horse”

  1. Jo says :

    Are there examples of people being excluded from PoS and later dying? Many thanks

  2. Jim O'Dwyer says :

    Nice article Nathan. I’d appreciate your clarification as to why the Common Law Doctrine of Necessity would not provide the legal authority for police (and any other citizen) to hold and detain a person if there are grounds for believing that they are in need of ‘immediate care and control’? Thanks in anticipation. Jim.

    • nathanconstable says :

      Because there is a law in existence which means you shouldn’t need to use it. Section 136 (in the right places) gives you the power – there is no need to fall back on necessity

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