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Police Custody – Was the deceased fit to detain in the first place?
- Mar 9, 2023
- Latest Journal
Who has the right to authorise a detainee as fit to detain? If they die in custody, who is responsible for authorising fitness to detain?
Many custody sergeants (custody officers) believe that if the health care professional (HCP) signs a detainee as being fit to detain, that this alleviates the risk from them, and places liability onto the HCP. Wrong.
The Police and Criminal Evidence Act (PACE), and comparable for Scotland and Northern Ireland, is clear that only a custody officer can authorise detention, and continued detention, of a person.
A HCP can only ‘advise’ the custody officer regarding their belief the detainee is fit to detain. They cannot ‘authorise’ the detention of the detainee.
A common theme in the cases I get involved with can focus around this issue, whereby the custody sergeant, in their defence, state that the HCP signed the person as being fit to detain, so they continued to detain them. The detainee then died in custody or suffered harm and the custody sergeant is surprised that they are being held liable for this decision. So let us take a look at this specific police custody area of law and practice.
The role of the custody officer is one which requires a risk assessed approach to balancing PACE, Codes of Practice, the College of Policing Authorised Professional Practice, Human Rights, and other safer custody lessons learnt to provide an independent and impartial service to detained persons to ensure their rights, entitlements and welfare are safeguarded and progressed during their detention. This involves teamwork with civilian detention officers and health care professionals (HCPs) for a holistic and coordinated approach, for prevention of deaths in police custody. The sergeants, detention officers and HCPs are all employed to safeguard a detainee and have autonomy within their role, but the custody officer is the responsible person for compliance with detention laws and practices.
The National Decision-Making Model is commonly known as the NDM. The NDM is used throughout the College of Policing detention and custody guidance and is adopted within the police and prison sectors, throughout the UK. The NDM outlines a process for decision making. The first stage is to gather information and intelligence. This means taking into consideration information provided, but also being proactive with an investigative mindset to look for risk factors. On the basis of the gathered information and intelligence, an officer will be able to make an assessment of the threat and risks faced, and consider the relevant guidance available.
If the information provided is inaccurate or misleading, and/or staff are not proactive looking for risk factors, this can result in an inadequate risk assessment with insufficient control strategies being deployed. This can increase the risk for death or serious injury in custody.
Intoxication is a significant risk factor. The Independent Police Complaints Commission (IPCC) conducted a review of deaths in custody for the period 1998/99 to 2008/09 titled; ‘Deaths in or following police custody: An examination of the cases.’ The report stated that: “Nearly three quarters of people in the sample (72%) were linked to alcohol and/or drugs” and “There were examples of individuals linked to alcohol, drugs or both who were not checked and/or roused as frequently as they should have been, and who were not adequately risk assessed because of their intoxication.”
The Report of the Independent Review of Deaths and Serious Incidents in Police Custody Rt. Hon. Dame Elish Angiolini DBE QC, January 2017, states that for the HCP “Their primary function is to address the health and wellbeing of the detainee, their patient”.
The IPCC investigation made the following comments:
• “The most common recommendations for improving force policy centred on officer training in first aid and liaison with” HCPs.
• Custody staff should have refresher training every 12 months.
• “Over the 11-year period the majority of deaths in custody were linked to alcohol or drugs, with both factors featuring in between 60% and 80% of the deaths.”
• “Research going back more than 20 years has identified drunken detainees as one of the most common groups to die in police custody.”
So, if research is showing that for now over 30 years, those intoxicated are the most likely to die in police custody, why do we still have failures to recognise and manage the risk of intoxication?
The Report of the Independent Review of Deaths and Serious Incidents in Police Custody Rt. Hon. Dame Elish Angiolini DBE QC, January 2017 states that:
• Section 3.5 “Police guidance on observation of detainees is set out in the College of Policing Authorised Professional Practice (APP) on Detainee Care. The guidance states: “Subject to medical direction, this (Level 2 observations) is the minimum acceptable level for detainees who are under the influence of alcohol or drugs, or whose level of consciousness causes concern”
• Section 3.6 “According to the submission to this review from INQUEST, non-compliance with observation procedures is ‘persistent, widespread, and identified repeatedly over time and across numerous police forces’. They provide evidence of a large number of cases in which Coroners and juries have made findings and cite several detailed case studies where failures to comply may have been a factor in the deaths. Inquests have identified failings by custody sergeants, other police officers, civilian detention staff, nursing staff and Forensic Medical Examiners.”
• Section 3.11 “There have also been failures linked to mistaking serious medical conditions for intoxication, or when there is intoxication, failing to recognise that it may be masking other serious injuries or conditions. This was recognised by the IPCC as far back as 2008 in its report ‘Near Misses in Police Custody: a collaborative study with Forensic Medical Examiners in London’, which recommended: “The message needs to be reinforced that apparent symptoms of intoxication may in fact be the result of an injury or medical condition, and that intoxication may mask or be found in conjunction with serious health needs.”
The initial consideration is concerning should they even be detained at police custody? Some common principles exist which include:
• If a person detained for an evidential breath test registers more than 150 micrograms of alcohol the HCP must be called.
• If someone appears to be drunk and is showing any aspect of incapability which is perceived to be as a result of that drunkenness, officers should treat that person as drunk and incapable. Drunk and incapable individuals are in need of medical assistance in hospital and officers should call an ambulance immediately.
• If they cannot walk or stand unaided, they are to be treated as drunk and incapable.
From my knowledge and experience, the four levels of observations are commonly downgraded to avoid additional demand on limited staff. The higher the grading, the more time consuming on staff to keep entering the cell and conducting full and proper rousing procedures as per PACE. If a detainee has a degree of impairment from alcohol or drugs, the minimum requirement is for level 2 rousing checks for all persons under the influence and subsequent escalation depending on the perceived level of intoxication. A person considered to be heavily intoxicated will, therefore, require a level 3 or 4 observation regime. Intoxication plus risk factors will also increase the control measure for a higher level of observation.
A detainee’s unwillingness or inability to participate in a risk assessment should be seen as an additional risk factor. Alcohol and/or drugs are a poison in their own right and detainees can die of alcohol/drug poisoning and/or overdose.
The HCP should medically assess all detainees believed to be under the influence of drugs, regardless of the amount.
A minor level of intoxication will require the level 2 rousing procedure, which must be carried out as per PACE Code C, Annex H, whereby the detainee demonstrates within every 30 minutes the level of suitable capability, as their condition may deteriorate as substances are absorbed and processed and by body. Dropping the hatch and listening to the sound of breathing, or receiving a grunt for the detainee does not meet the required standard. Detainees who are snoring may have an upper airway obstruction.
PACE is clear as to what must occur: “If any detainee fails to meet any of the following criteria, an appropriate healthcare professional or an ambulance must be called. When assessing the level of rousability, consider: Rousability - can they be woken?
• go into the cell • call their name
• shake gently Response to questions - can they give appropriate answers to questions such as:
• What’s your name?
• Where do you live?
• Where do you think you are?
Response to commands - can they respond appropriately to commands such as:
• Open your eyes!
• Lift one arm, now the other arm!.
Remember to take into account the possibility or presence of other illnesses, injury, or mental condition; a person who is drowsy and smells of alcohol may also have the following:
• Head injury
• Drug intoxication or overdose
Where a detainee fails to respond to rousing at the appropriate level, or if there is a decline in their condition or their level of consciousness (for example, if speech becomes incoherent), officers must seek immediate assistance from the HCP or transfer the detainee directly to hospital.
In addition to intoxication, there may be suspicions concerning mental ill health crisis. This would increase the risk to level 3 or 4 observations, if indeed they are detained. At section 4.2 of Dame Anglioni’s report she records “Certain characteristics commonly feature in cases of death involving mental ill health in the police custody context. These include the ability of police officers to recognise and interpret symptoms of mental ill health, rather than attributing disturbed behaviour to drunkenness or drug abuse.” And “Once physically restrained there is often insufficient or no appreciation of the acute medical vulnerability of the detainee and no focus by officers on the need to divert immediately such individuals away from police custody to appropriate emergency health facilities.”
There may also be a tendency for some officers to consider that a detainee may be ‘faking’ a condition. However, police officers cannot afford to make such assumptions. It may lead to deterioration in a detainee’s condition going unnoticed and prove fatal. Alcohol withdrawal syndrome can also be life threatening.
Although the HCP may be used for gathering samples as evidence, they are not part of the investigation team and their priority is the health and wellbeing of their patient. The custody officer should satisfy themselves that a thorough medical risk assessment has occurred, and consider the HCP’s advice alongside other received information and risk factors.
PACE, Code C 3.9 states “The custody officer is responsible for implementing the response to any specific risk assessment” which means any recommendations provided by the HCP can be increased, to err on the side of caution. If the HCP recommends that a detainee is fit to detain, the custody officer can still decide to send the detainee to hospital or to gain a second opinion.
The custody officer must make sure a detainee receives appropriate clinical attention as soon as reasonably practicable: PACE Code C 9.5.
The custody officer must also consider the need for clinical attention as set out in Note 9C in relation to those suffering the effects of alcohol or drugs: PACE Code C 9.5B.
Whenever the appropriate healthcare professional is called in accordance with this section to examine or treat a detainee, the custody officer shall ask for their opinion about:
• any risks or problems which police need to take into account when making decisions about the detainee’s continued detention;
• when to carry out an interview if applicable; and • the need for safeguards:PACE Code C 9.13.
There is no standard risk assessment model for the British police service but risk assessment should be guided by the National Decision-Making Model (NDM). Having taken into consideration the information from arresting and escorting officers, the HCP, the detainee, suspected risk factors, police computer systems, guidance documents, force policy and legal requirements, the custody officer must make their decision concerning fitness to detain and what control measures are required. The decision rests with the custody officer, not the HCP. The visits and rousing procedures may be conducted by detention officers but the responsibility for the care and safety of the detainee still sits with the custody officer. They need to ensure that visits and rousing procedures are conducted as per the custody officer’s directions.
The recommendation by the HCP that a person is fit to detain does not alleviate the custody officer of their legal responsibilities. As stated in the British Medical Association (BMA) guidance for healthcare of detainees in police stations it states “it is for the custody officer to determine whether a health care professional or a forensic physician needs to be called or whether the detainee should be given additional monitoring or observation.”
Returning to the original question which I posed: ‘Who has the right to authorise a detainee as fit to detain?’ this rests with the custody officer. The role of the HCP is to advise the custody officer. The custody officer does not remove their legal responsibilities under PACE by following the HCPs recommendation that a detainee is fit to detain. They must act based upon all available considerations of the National Decision-Making Model.
Joanne Caffrey, Expert Witness for Police Custody Procedures, Use of Force and Ligature Deaths.
With experience as an expert witness includes advising upon, approximately, 200 cases. These cases are distributed between England, Wales, Scotland, Northern Ireland, Republic of Ireland and the Isle of Man.
The cases involve custody sectors of police, prison, mental health, immigration, security staff and the children’s sector. (Custody commences from the point of initial contact & arrest).
Joanne has provided services for a public inquiry, coroner, fatal accident inquiries, civil, criminal and misconduct cases. She has been engaged by legal teams representing the defence, and the prosecution/claimant. There has been repeat business from the police federation. police ombudsman agencies and the Crown office.
Main areas of service concern:
• Death during restraints
• Serious injury during restraints
• Ligature deaths
2. Health care of detainees in police stations Guidance from the BMA Medical Ethics Department and the Faculty of Forensic and Legal Medicine February 2009 Standards of carehttps://fflm.ac.uk/wp-content/uploads/2009/03/1236269117.pdf