Deaths in police detention of adults with mental health conditions: how can we ensure lessons are learned?
Michaela Bartlett 
Cite as: Bartlett, M. "Deaths in police detention of adults with mental health conditions: how can we ensure lessons are learned?", (2016) 22(1) EJoCLI.
In February 2015 the Equality and Human Rights Commission (the Commission) published the results of its inquiry into non-natural deaths of adults with mental health conditions detained in police custody, prisons and psychiatric hospitals. Our inquiry found that repeated basic errors, a failure to learn lessons and a lack of rigorous systems and procedures have contributed to the non-natural deaths of hundreds of people with mental health conditions detained in these settings. This comment piece focuses on two significant areas from our inquiry where improvements need to be made in relation to non-natural deaths of adults with mental health conditions in police detention, based on compliance with Article 2 of the European Convention on Human Rights. The first key area relates to recording and reducing the use of restraint against people with mental health conditions. The second key area is ensuring that lessons are learned from every non-natural death in police custody to prevent future deaths.
"Everyone's right to life shall be protected by law" : Article 2 of the European Convention on Human Rights enshrines this right in law. When the state detains people for their own good or the safety of others there is an increased level of responsibility to ensure the protection of life. Yet every year hundreds of individuals with mental health conditions die while in the care of public authorities, including a number of people detained in police custody. Many of these deaths could have been prevented. That is why the Equality and Human Rights Commission (the Commission) launched an inquiry in June 2014 to examine non-natural deaths of adults with mental health conditions who had been detained in police custody, prisons and psychiatric hospitals [i].
We recognise that there have been several initiatives to improve the assessment of vulnerability and risks for people with mental health conditions. One significant initiative is the Mental Health Crisis Concordat, introduced in February 2014, aimed at integrating services to provide more effective treatment and support to people with mental health conditions. This is already having an impact.
This article focuses on two significant areas where we believe improvements need to be made in relation to non-natural deaths of adults with mental health conditions in police detention, based on compliance with Article 2. The first key area relates to recording and reducing the use of restraint against people with mental health conditions. The second key area is ensuring that lessons are learned from every non-natural death in police custody to prevent future deaths. The changes we recommend should help to reduce risks for people with mental health conditions in police custody and improve their care and protection.
2. Role of the Equality and Human Rights Commission
The Equality and Human Rights Commission is a unique body, covering Great Britain. Established by law in 2006, it has a statutory duty to challenge discrimination, and to protect and promote human rights. In 2009 the Commission joined the family of 'A' status accredited National Human Rights Institutions (NHRIs) around the world, becoming Great Britain's first accredited NHRI and the UK's second - joining the Northern Ireland Human Rights Commission, which was awarded 'A' status in 2006.
The Commission has legal powers to conduct an inquiry into any matter which relates to equality and diversity or human rights. There is no specific standard of evidence needed to trigger an inquiry and the Commission does not need to suspect that there has been a breach of equality or human rights legislation.
3. Our inquiry
In February 2015 we published the results of our inquiry into non-natural deaths of adults with mental health conditions in detention. We undertook this inquiry to ensure that the human rights of people in some of the most vulnerable situations in society - those with serious mental health conditions - were being protected as far as possible. The inquiry focused on non-natural deaths in the period 2010-13 of people detained in prisons, police custody and psychiatric hospitals. We focused on these three settings due to the relatively high numbers of non-natural deaths.
4. Human rights obligations
We used our unique powers to examine how the human rights of detainees with mental health conditions across Great Britain are protected through human right legislation; namely Article 2 of the European Convention on Human Rights (the Convention), as enshrined in UK domestic law through the Human Rights Act 1998. In principle, Article 2 means that public authorities must not take life and in some circumstances must take positive steps to protect it. Article 14 of the Convention prohibits discrimination in the enjoyment of the Convention rights. This means that the State must ensure that the right to life of people with mental health conditions is given equal protection to that of other people.
There are two overarching obligations on public bodies in relation to Article 2: protection and investigation. The obligation to protect comprises systems and operational duties. The first is a duty to put in place appropriate systems designed to protect lives (the systems duty). The second is a duty to take reasonable steps to protect individuals from a real and immediate risk to life which the institution is or should be aware of (the operational duty). To enable public bodies, including police forces, to be clear on their obligations, we developed a Human Rights Framework [ii] on the requirements of Article 2, emanating from domestic and European caselaw. The Framework covers four main areas: dignity and respect; risk and assessment; treatment and support; and investigations.
Our Human Rights Framework sets out practical steps to prevent deaths, including putting in systems to protect lives. It can be used as a practical checklist for practitioners working in this field to assess compliance with Article 2. The Framework can be used, for example, in developing new policies and procedures, carrying out inspections of detention settings and in setting up new institutions. We used this as a tool to measure the evidence we gathered in the inquiry to understand the extent to which the requirements of Article 2 were being met.
5. Mental health and policing
The police play an important role in ensuring the safety of local communities. We recognise that the role of the police is not to provide clinical care to people in need of support. However, an inevitable part of their role is to act to ensure the safety of individuals who may be experiencing a mental health crisis. When this happens, the police need to be able to respond appropriately and ensure they take proportionate action. People experiencing a mental health crisis should receive appropriate treatment.
It has been estimated that at least 20 per cent [iii], and up to 40 per cent [iv], of police officers' time is spent on issues arising out of poor mental health. To be able to manage the reduction of risks effectively, police officers need to have an understanding of mental health. Regularly refreshed training on mental health will help police officers to perform their role effectively.
Deaths in police custody can have wider repercussions in terms of public perceptions and levels of confidence in the police, particularly when the death is of an individual from an ethnic minority community. This was acknowledged by the IPCC in a review it carried out of its investigation of deaths following contact with the police [v].
6. Non-natural deaths of adults with mental health conditions in police detention
It is important to note that our inquiry was only able to consider those cases where the investigation was complete. There were several important cases relating to deaths in police detention which we were unable to examine due to ongoing legal action.
In our inquiry report, we welcomed the reduction in the number of non-natural deaths in police custody over the previous ten years, from 36 deaths in 2004/05 to 11 deaths in 2013/14. Since our report was published, the Independent Police Complaints Commission (IPCC) has released statistics showing that the number of non-natural deaths in police custody increased to 17 deaths in 2014/15. This increase shows that, while some progress has been made in reducing risk for adults with mental health conditions who are detained by the police, there is still much work to do. Every death is still one too many.
7. The use of restraint against people with mental health conditions
Under Article 2, the taking of life is prohibited, whether intentional or not. This includes where the use of force, such as restraint, is greater than absolutely necessary. Restraint must not be used unlawfully against people with mental health conditions. We are therefore concerned that restraint was a factor in eight of fifteen deaths in or following police custody in 2010-13 where the individual was recorded as having a mental health condition. (This includes deaths where restraint was identified as a primary or secondary cause.)
The police are trained to restrain very quickly and with force, which can have potentially damaging consequences for people with mental health conditions. We want to be sure that there are robust protocols and mechanisms in place to ensure that restraint is used as a last resort in relation to people with mental health conditions.
Concerns have been raised about potentially disproportionate use of restraint against people with mental health conditions and people from black and ethnic minority communities. Police forces do not currently collate or publish data on the use of restraint, which therefore means that, at present, any disproportionality in the use of restraint is unknown. One of our key recommendations is that police forces should collect, collate and publish data on the use of restraint.
There is much opportunity for learning from other initiatives. Following the publication of our report Stop and Think [vi] in March 2010, which assessed the use of police powers to stop and search people, we identified five police forces whose stop and search patterns suggested that they should be a priority for further inquiry. We worked with these forces to improve their policy and practice on stop and search. This included ensuring that the use of stop and search was intelligence-led and that data on its use was monitored. A key determinant of these changes was senior level commitment and leadership from within the police forces concerned. The result of these improvements was a reduction in the potentially unlawful use of their powers, at the same time as a continuing reduction in crime rates.
A serious matter raised in evidence to our inquiry was that of police officers increasingly being called into hospitals to restrain detained patients. This is a key concern as police officers are able to use restraint techniques which have been deemed unsafe to be used by health staff. We received evidence of two deaths involving police restraint on a detained patient in a psychiatric hospital. Further analysis is needed to identify whether police officers are increasingly being called into hospitals to restraint detained patients. If this is the case, appropriate changes should be made.
Since our report was published, we are pleased that there have been new developments aimed at improving the collection and collation of data on the use of restraint against people with mental health conditions. A Mental Health and Restraint Reference Group, chaired by Lord Carlile, has been established by the College of Policing with two main objectives. The first objective is to understand when and to what extent the police service needs to engage in restraint and the use of force specifically during psychiatric emergencies. The second is to ensure that, where restraint and force are used, this happens as safely as possible while being mindful of the potential clinical risks of restraint. The Commission is a member of this group and our interest is in ensuring compliance with Article 2: that restraint is not used inappropriately on people with mental health conditions and that there is no disproportionality in its use. The Group is likely to report in early 2016.
These measures are needed so that everyone can be confident that restraint is never used unlawfully or inappropriately against people with mental health conditions and therefore does not result in any deaths.
8. Learning lessons from every non-natural death in detention
In addition to the systems and operational duties, Article 2 imposes a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances where it appears that one or other of these duties has been breached and where agencies of the state are, or may be, in some way implicated [vii]. To comply with human rights obligations, an effective investigation should involve the next of kin. It should also make recommendations and identify lessons which can be learned to minimise the risk of similar deaths in the future.
We know that the implementation of recommendations from investigations into non-natural deaths in detention and the sharing of lessons both within and across police forces lead to real improvements. Yet historically police forces do not appear to be good at learning lessons from non-natural deaths in detention. Despite recognition of this problem in a number of previous reports by other organisations, evidence provided to our inquiry was that police forces still have some way to go to ensure lessons are learned and applied at both an operational and a wider strategic level. Only when this happens will future deaths be prevented.
To help to identify and embed learning we recommend that each police force should have a dedicated Mental Health Liaison Officer embedded in its operations for each area or division. This specific role would take the lead in identifying learning, developing best practice and ensuring effective inter-agency joint working. In addition, a dedicated lead for each force is required to provide strategic leadership to ensure lessons learned elsewhere are transferred to their own force. Although each police force currently has a lead on mental health, this role is often undertaken alongside other responsibilities which may mean there is limited time and insufficient support to provide effective leadership and strategic oversight.
During our inquiry we were told about practice which demonstrates that the use of the Mental Health Liaison Officer role in this way can be a good use of police resources. The South Wales police force has identified the need for four mental health liaison officers across the force. Their role is to liaise with organisations, agencies and partnerships. It enables them to manage effectively the increase in demand from those with potential and diagnosed mental health conditions in the community, hospitals and secure facilities. Importantly, any learning identified now informs future training for frontline staff, including custody staff. The South Wales police force regards these officers as "worth their weight in gold" and a very effective use of police resources, enabling them to manage individuals and work effectively alongside other services.
9. Ensuring effective investigations
The IPCC carries out an independent investigation into all deaths in police custody and notifies the police force of its findings and recommendations. The role and powers of the IPCC have been strengthened in recent years. Strengthened powers mean that the IPCC can now compel police offers to attend interviews, the status of recommendations made by IPCC is statutory and police forces have to respond with an action plan outlining how they will address them and link to the work of other agencies. While this is welcome, the IPCC has told us about a continued frustration at the lack of candour from some police staff during its investigations.
There are many opportunities for learning from other sectors. The introduction of a statutory duty of candour for staff employed by the National Health Service (NHS) in April 2015 provides the opportunity for learning to improve transparency and accountability in detention settings. The duty means that care providers must ensure they are open and honest with people when something goes wrong with their care and treatment. In particular staff must be candid when taking part in interviews relating to investigations. We consider that extending the duty of candour to the police setting may help to address the concerns of the IPCC.
10. What can be done?
Every death has a tragic impact on the families of those concerned. Families told us that they did not want the same mistakes to be repeated and that lessons should be learned from the deaths of their relatives. Ensuring that families are fully involved in investigations processes should ensure that improvements can be made.
We are confident that following the steps set out in our Human Rights Framework will prevent non-natural deaths of adults with mental health conditions in police custody. Adopting it as an overall approach as well as ensuring compliance with each individual element should help to inform and shape policy decisions.
The Commission continues to monitor developments and seek to influence those responsible for detaining people with mental health conditions to ensure compliance with Article 2. To this end, we will be publishing a report in early 2016 to outline any changes, developments and continuing areas of concern one year on from our inquiry report 'Preventing Deaths of Adults with Mental Health Conditions in Detention'. We hope to be able to report significant changes and improvements.
11. Deaths post-release from detention
Although outside of our Terms of Reference for this inquiry, we are aware of a high number of apparent suicides following custody. Statistics from the IPCC show that there has been a significant increase in apparent suicides following custody from 39 in 2011/12 to 70 in 2013/14 and 69 in 2014/15. The Commission is sufficiently concerned about this that we are undertaking a review of deaths post-release from police and prison detention, on which we will report in early 2016.
Since our report was published there have been new developments aimed at reducing risk and providing greater protection for people with mental health conditions in contact with the police. A recent significant development was the announcement in July 2015 by the UK Government that there will be a major independent review of deaths and serious incidents in custody. This review will "examine the procedures and processes surrounding deaths and serious incidents in police custody" and "identify areas for improvement and develop recommendations to ensure appropriate, humane institutional treatment when such incidents occur." [viii]
We sincerely hope for the sake of individuals with mental health conditions and their families that lessons from previous tragic deaths in police custody will truly be learned and real changes made. These need to be matched with appropriate resources and accountability. Making significant improvements, particularly in relation to the use and recording of restraint and ensuring lessons are learned from each death, will help the police to do their job and ensure compliance with Article 2 of the Convention.
The Equality and Human Rights Commission published ‘Preventing deaths in detention of adults with mental health conditions: progress review’ in February 2016
 Inquiry Analyst at the Equality and Human Rights Commission
[i] Equality and Human Rights Commission, Preventing Deaths in Detention of Adults with Mental Health Conditions: an Inquiry by the Equality and Human Rights Commission, February 2015 http://www.equalityhumanrights.com/publication/preventing-deaths-detention-adults-mental-health-conditions
[ii] Equality and Human Rights Commission, Human Rights Framework for Adults in Detention, February 2015 http://www.equalityhumanrights.com/publication/human-rights-framework-adults-detention
[iii] Michael Brown, the Mental Health Cop blog. Available at: http://mentalhealthcop.wordpress.com/2013/02/13/twenty-percent/
[iv] Independent Commission on Mental Health and Policing Report, May 2013.
[v] Independent Police Complaints Commission, Review of the IPCC's work in investigating deaths, March 2014
[vi] Equality and Human Rights Commission, Stop and think: A critical review of the use of stop and search powers in England and Wales, March 2010
[vii] See Equality and Human Rights Commission, Human Rights Framework for Adults in Detention, February 2015 http://www.equalityhumanrights.com/publication/human-rights-framework-adults-detention
[viii] Home Secretary announcement of review of deaths in police custody, 23 July 2015, https://www.gov.uk/government/speeches/home-secretary-announces-review-of-deaths-in-policy-custody