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The Police Surgeon and Mentally Disordered Suspects: An Adequate Safeguard?

Judith M Laing*

Lecturer in Law
Faculty of Law
University of Liverpool
< [email protected]>

Copyright © 1996 Judith M Laing.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

* I would like to thank Professor Clive Walker at Leeds University and Professor Michael Jones at Liverpool University for their comments and advice on earlier drafts of this article.

Summary

This article examines the role of the police surgeon in identifying and assessing mentally disordered suspects in police custody. It suggests that police surgeons lack the relevant knowledge and expertise to deal with these people, and concludes that duty-psychiatrist schemes currently operating at magistrates' courts should be extended to police stations to ensure that mentally disordered suspects are assessed by medical professionals who possess the relevant psychiatric expertise.

Contents

Introduction
The Problem of the Mentally Disordered in Police Custody
A Possible Solution?
Conclusion

Bibliography

Introduction

The range of duties undertaken by the police surgeon is extremely varied and important. In recent years however, they have come under increasing attack, and a certain dissatisfaction has been expressed with regard to specific aspects of their work. What little research that has been undertaken has indicated that there is:

" sufficient information already available on which to raise concerns about the role currently undertaken by police surgeons within the British system of criminal justice" (Kelly et al 1993).

This research identified particular concerns with regard to the independence and impartiality of their work and also in respect of the police surgeon's ability to certify the detainee's fitness to be interviewed (Kelly et al 1993).

This article will focus on mental instability as a cause of unfitness and will in that context firstly explore the concerns which have been expressed about the ability of police surgeons accurately to identify and assess the mentally ill in police custody, and secondly suggest a possible solution.

Contents | Bibliography

The Problem of the Mentally Disordered in Police Custody

The role of the police surgeon has been transformed dramatically over the years. (1) Initially, they were simply physicians to the police and their families, but today, they are expected to perform a wide range of medical and forensic duties. The nature of their work no longer involves simply examining police injuries and illnesses at the request of the police. They may also be required to examine prisoners and the victims of their crimes, which may frequently result in them being required to give evidence in court. Indeed, research conducted by Graham Robertson found that over 80% of the police surgeon's work today involves conducting medical or forensic examinations of prisoners in police custody (Robertson 1993).

Recently, the work of the police surgeon has attracted criticism, most notably from the Royal Commission on Criminal Justice (Cm 2263). Concern has particularly been expressed over the ability of police surgeons to identify and deal appropriately with mentally disordered suspects. When a person in custody is believed to be suffering from a mental illness the police must seek a medical opinion to assess whether s/he is fit to be interviewed, which may indicate that the presence of an "appropriate adult" is necessary to assist the detainee whilst being interviewed (as required under the Police and Criminal Evidence Act 1984), (2) or if a "place of safety" is required under section 136 of the Mental Health Act 1983. Undoubtedly, the police rely upon the clinical expertise of the police surgeon to make this assessment. (3) The research conducted by Robertson found that whilst the majority of the police surgeon's work is confined to treating physical illness or injury, nearly 10% is concerned with identifying, diagnosing and assessing mental illness/handicap. Furthermore, an additional 19% involves dealing with drug/alcohol abuse problems, which may be related to an underlying mental illness (Robertson 1993). It is generally recognised that mentally disordered people are increasingly coming into contact with the criminal justice system, often as a result of the lack of care, support and treatment in the community (NACRO 1993a). Clearly therefore, the police surgeon will increasingly be called upon to provide on the spot medical opinion to the police.

Police surgeons are not required to receive any specific formal training, let alone require any specialist knowledge in the field of psychiatry. All that is officially required of them is that they are acceptable registered medical practitioners, and the vast majority of them are indeed busy general practitioners doing police work part-time. As the Royal Commission observed:

"...GP's receive little or no training in police work nor does their training include psychiatry". (Cm 2263, para 90)

Similar concerns have also been expressed by NACRO's (National Association for the Care and Resettlement of Offenders) Mental Health Advisory Committee. In a series of policy papers on the subject of mentally disordered offenders, it concluded that there is considerable room for improvement with regard to the quality of assessments and examinations provided to mentally disordered suspects by police surgeons. (NACRO 1993b, pp 15-16)

Accordingly, the Royal Commission recommended that a Working Party should be established to consider the urgent need for national standards and training for police surgeons, particularly in the role of psychiatry and the availability of psychiatric assistance. Furthermore, the report urged that it is imperative that the police should have access to psychiatric assistance whenever required. This is essential, because the mentally ill are highly vulnerable and suggestible whilst in police custody (Gudjonsson 1992, p 301; Gudjonsson et al 1993). The revised Code of Practice accompanying the Mental Health Act 1983 (which was published in August 1993 by the Department of Health and the Welsh Office pursuant to s 118 of the Act) stresses the need for all professionals involved to note the:

"...vulnerability of people, especially those who are mentally disordered, when in police or prison custody. The risk of suicide or other self destructive behaviour should be of special concern". (para 3.2 (a))

A recent joint Department of Health and Home Office Review of health and social services for mentally disordered offenders has echoed these sentiments (Reed Committee Report 1992, paras 2.17-2.19). It made sweeping recommendations to improve the treatment and provision of services. Amongst them was the proposal that the medical attention provided for mentally disordered offenders at police stations should be greatly improved.

A report by the charity MIND into the use of of the Mental Health Act 1983 s 136 by the police reached similar conclusions (Bean et al 1991, pp 155-157). This section empowers a police officer to remove to a place of safety a person who is, or who appears to be suffering from mental disorder, for the purposes of carrying out a medical assessment and for making arrangements for that person's care and treatment. The study noted that the police routinely called out the police surgeon to make such assessments, but that the quality of advice provided was inadequate:

"Assessments by divisional surgeons were generally very brief and from officers' accounts provided little more information than they already knew" (Bean et al 1991, p 155).

Furthermore, should the s 136 detainee require hospital treatment, then the police surgeon cannot secure an admission - unlike a psychiatrist or a medical practitioner approved under the Mental Health Act 1983 s12(2) who have links with the local psychiatric services and are therefore in a better position to arrange admission. The study urged that custody officers should routinely call out a psychiatrist or an approved doctor in these cases "then the need for divisional surgeons should reduce, if not diminish" (Bean et al 1991, pp 156).

Finally, an article in The Guardian has highlighted the disquiet in this area. A forensic psychiatrist in London was interviewed and speaking from years of experience, expressed his view that:

"Doctors in police stations often overlook mental illness....In many cases their knowledge of psychiatry tends to be minimal. Their reports are often a scribbled, irrelevant, illegible note. They often have no more than five minutes. Unless someone is raving there is no time in which to assess them" (McFadyean 1993).

These concerns and the tragic consequences which can result are illustrated by the case of Travers Clarke, reported in The Guardian August 24, 1993. Clarke was a paranoid schizophrenic who vandalised his former wife's home and was consequently arrested by the police and taken into custody for questioning. Doubts were expressed regarding his mental condition and accordingly, the police requested the assistance of the police surgeon to make an assessment. Having examined Clarke, the police surgeon concluded that he was calm and "perfectly logical" and that there were no indications that he would take his own life. The police released him and 12 hours later he set fire to himself and died in hospital suffering from 90 per cent burns.

Cases such as this, added to the findings of the Royal Commission, led the British Medical Association and the Association of Police Surgeons to conduct a full inquiry into the health care of detainees in police stations. The committee was critical of the increasing numbers of mentally ill being found in police cells (BMA 1994, pp 3, 24). One member of the report committee expressed the view that:

"There's an increasing problem with having to care for people who seem to have fallen through the safety net...It reflects badly on the current community care system". (4)

Concerns were also expressed that the standards of care were well below those in the NHS and that inadequately trained police surgeons were putting detainee's lives at risk. Detainees should be entitled to the same standards of medical care as NHS patients, (5) and this is clearly not the case at present.

The report findings were reinforced by an internal review conducted by Scotland Yard into the ability of police surgeons in London to recognise mental disorder and identify persons at risk during interview. The research found that the current situation was unsatisfactory as many police surgeons relied solely on a physical assessment which would not necessarily identify any mental health problems. Accordingly, Scotland Yard announced that it was recruiting an eminent forensic psychologist and a consultant psychiatrist to train the police surgeons to identify such prisoners correctly. (6)

Similar concerns have also been expressed about the inadequate level and quality of advice and protection currently afforded to suspects by their legal representatives at police stations (see McConville et al 1994, chs 4 & 5; Baldwin 1992; Cm2263 paras 55-63, Recommendations 65-69). In response, the Law Society and the Legal Aid Board have taken some action, and as from February 1995, legal executives and clerks attending suspects at the police station on behalf of solicitors will have to undergo a specific training regime. The training package has been developed by the Law Society and it is eventually hoped to extend this scheme to all trainee solicitors and duty solicitor representatives by February 1997 (Ames 1993).

It seems, therefore, that there is widespread dissatisfaction with the levels of advice and attention given by professionals to detainees in police stations. Police stations are extremely unfamiliar and distressing places and thus the provision of adequate safeguards is paramount. Doctors and solicitors are the only outsiders the detainee is likely to meet; their role is therefore vital in ensuring that no abuse or oppression on the part of the police takes place. Relevant action has been taken in respect of certain legal representatives. The same principles should apply to the relevant medical services.

Contents | Bibliography

A Possible Solution?

As outlined above, this article suggests that much more needs to be done with respect to police surgeons to improve health care conditions in police cells. The Royal Commission proposed that experiments should be set up to determine whether duty-psychiatrist schemes currently operating at magistrates' courts to provide speedy psychiatric assessments could be extended to busy police stations (Cm 2263, para 92). This is indeed an attractive solution, which is clearly in line with current government policy. In 1990 the government issued a policy statement by way of Home Office Circular 66/90, which provided that mentally disordered offenders in need of psychiatric care and treatment should receive it from the health and social services as soon as possible (HO Cir 66/90; see also HO Cir 12/95). Annexed to the Circular were examples of good practice which would enable this policy to be translated into practice. These included an account of a duty psychiatrist scheme operating at Bow Street and Marlborough Street Magistrates' Courts in London (Joseph 1990, 1992). Basically, the scheme enables defendants to be pro-actively screened by psychiatrists at court for mental health problems and also ensures that psychiatric assessments are readily available to the magistrates to help them make therapeutic disposals.

A natural and necessary extension of this type of scheme is the routine provision of psychiatric assessments in the police station as soon as possible after the point of arrest, thereby saving both time and money and diverting mentally disordered offenders to receive health care at this earliest possible stage:

"It would greatly reduce prisoners' distress and save money if people were diverted at the point of arrest". (The Guardian November 30, 1993)

Court psychiatric assessment schemes have been an extremely welcome development, but many mentally disordered offenders who are screened at court may have already spent damaging amounts of time in police custody. Extending the availability of psychiatric assessments to this earlier stage averts this, and enables mentally disordered defendants to receive appropriate psychiatric care at this early stage. This has indeed been found to be the case. A similar type of diversion scheme has been developed at the magistrates' court in Birmingham. This particular scheme involves Community Psychiatric Nurses attending the court every weekday morning to screen the defendants for mental health problems (Hillis 1993). However, it was felt necessary to extend the scheme to cover police stations to identify mentally ill suspects as soon as they came into police custody. Accordingly, in 1992, an assessment and diversion scheme was developed and is still operational at a busy inner city police station in Birmingham. This scheme involves a trained Community Psychiatric Nurse (CPN) who is present at Bournville Lane police station, to screen suspects for potential mental health problems. The scheme provides a 24 hour, 7 day week psychiatric service whereby the CPN is present at the police station for part of the day and on- call for the remainder. Should the mental disorder warrant it, then appropriate care arrangements can be made. During its first six months of operation, of all the detainees assessed by the CPN, only one proceeded as far as the court appearance. The scheme has been so welcome and made such an impact that it has now been extended to operate at several other police stations in the area. In other areas, for example in North Humberside, a court assessment scheme has been successfully extended to include the three main police stations in Hull. This scheme involves the project team (a Community Psychiatric Nurse, an Approved Social Worker and a Probation Officer) attending the police stations early every weekday morning to pro- actively assess police cell detainees for any potential mental health problems (Staite and Martin 1993). Thus, identification and assessment at this earliest possible stage by a person who is both trained and experienced in dealing with mental disorder is imperative. The scheme ensures that the police have instant access to psychiatric assistance and that detainees receive the appropriate level of care and treatment which they urgently need and to which they are entitled.

Contents | Bibliography

Conclusion

Police surgeons are being placed under mounting pressure today, particularly in light of the increasing numbers of mentally ill people coming into police custody. They are required to be a "Jack of all trades", dealing with a wide range of medical complaints, and obliged to understand the laws of evidence, child neglect, driving offences, sexual offences and also the provisions of the Police and Criminal Evidence Act 1984. Furthermore, they are expected to be fully cognisant of court procedure, preparing witness statements and giving testimony, and to have a thorough knowledge of police organisation and structure (BMA 1994, p 41). Sadly, with so much required of them, they cannot also be expected to be "Masters" of all their trades.

As an alternative, the Reed Committee Review recommended that:

"...wherever possible, a mentally disordered person should be assessed by a qualified psychiatrist who is able, where necessary, to provide medical reports for the Crown Prosecution Service and the court...and to arrange admission to hospital if this is required in the interests of the person's mental health" (Reed Committee Report 1992).

In this way, serious consideration should be given to ensuring that, in the first place, qualified and experienced psychiatric staff are made available to safeguard and provide the help required by the mentally ill in police custody, and, secondly, that they are neither under-trained nor over- burdened like the generalist police surgeons they should supplant in this work. Indeed, this would be giving effect to official government policy. The Home Office Circular 66/90 expressly advises that:

"In the case of mentally disordered persons, chief officers of police may find it helpful to arrange with their local health authorities for psychiatrists to fill the role of police surgeon" (para 4(iv)).

Adopting such a measure however, clearly has far-reaching implications, most notably from a financial perspective. Consequently, a more practical solution might be to finance training in this specialism for existing police surgeons. However, this would also involve resource implications which may be even graver than for duty-psychiatrist schemes, for which the government and other organisations, such as the Mental Health Foundation, have allocated specific funding. Furthermore, in line with the government's diversion policy, health and local authorities are becoming increasingly aware of their responsibilities to this category of offender (Cm 2088, para 5.4). Funding for police surgeon training, by contrast, is not readily accessible. As has been outlined, they already receive only minimal basic training, and provision of the necessary finance is the responsibility of the police authority which employs them. It is doubtful whether police authorities would fund such intense training. Resources are limited, and, no doubt in the present climate, the funding of operational officers or crime prevention measures would prove more attractive.

Moreover, psychiatrists and psychiatric nurses receive years of specialist training to equip them with the relevant skills and expertise to help the mentally ill. Most police surgeons are physicians with a much broader knowledge and would require many more years of training to bring them up to the standard of the psychiatric personnel. Even then, however, training courses alone would not suffice, as most police surgeons are busy GP's and perhaps not sufficiently committed to this particular category of prisoners.

The value of developing duty psychiatrist schemes is further supported by the fact that such psychiatric personnel are likely to be based in local psychiatric hospitals or in the community and therefore have better and established links with local psychiatric facilities. Thus, having examined a detainee who is in need of psychiatric care, they are far better placed to secure that care and treatment, as the Reed Committee recommended. A further consequence is that the police are far more likely to negotiate over disposal where a prosecution does not clearly serve the public interest and care and treatment can instead be secured. This is clearly desirable and in line with government policy as expressed in the 1990 Home Office Circular:

"In some cases the public interest might be met by diverting mentally disordered persons from the criminal justice system and finding alternatives to prosecution, such as admission to hospital...or informal support in the community" (HO Cir 66/90 para 4(iii)).

Moreover, the police are continually expressing concern about the increasing numbers of mentally disordered offenders in their custody, particularly those homeless mentally ill offenders who continually pass through the "revolving door" which leads to the cycle of homelessness, offending and imprisonment (Clarke 1994; Cherrett 1994). Many such offenders receive little or no support in the community and have lost touch with the psychiatric services. So, the presence of skilled and experienced psychiatric personnel at the police station would stop them from slipping through the net and undoubtedly go some way towards slowing down that "revolving door".

On balance therefore, it would seem that the case for psychiatric assessment at the police station is clear. However, it must be noted that this option also involves many practical problems in relation to achieving the diversion and psychiatric care of such mentally disordered offenders. As the Reed Committee noted (Cm 2088, paras 5.3, 5.4, 5.10-5.21, Annex E), diversion is a viable solution provided that adequate facilities exist into which the mentally ill can be diverted. Having established links with local psychiatric services, although a distinct advantage, is clearly not sufficient if the appropriate facilities do not exist in the first place. Mental health services have always been regarded as the "Cinderella of Services". Until the government provides greater resources to fund community, hospital and secure psychiatric provision for the mentally ill, they will still be remanded and sentenced to periods of imprisonment, no matter how well-meaning the intention of the medical and criminal justice professionals to the contrary (Allam 1995; Brindle 1994).

Contents

Bibliography

Allam, D (1995) 'Diversion Schemes for Mentally Disordered Offenders - A Service under Threat' 51 The Magistrate 90-91.

Ames, J (1993) 'Front-line defence - legal advisers test a crash course in standing up to the police' 90 Law Society Gazette 7.

Baldwin, J (1992) The Role of Legal Representatives at the Police Station, Royal Commission on Criminal Justice Research Study No 3 (London: HMSO).

Bean, P et al (1991) Out of Harm's Way (London: MIND Publications).

BMA (1994) Health Care of Detainees in Police Stations (London: BMA).

Brindle, D (1994) 'Cash urged for mental health care in crisis' The Guardian April 20, 1994.

Cherrett, K A (1994) 'Place of Safety' Police Review 14 October pp 16-17.

Clarke, M (1994) 'The Job that Nobody Wants' Police Review 26 November pp. 26-28

DoH/HO (1992) Review of Health and Social Services for Mentally Disordered Offenders and others requiring similar services Cm 2088 (London: HMSO)

DoH/HO Community Advisory Group Report (1992) Review of Health and Social Services for Mentally Disordered Offenders and others requiring similar services (London: HMSO).

Gudjonsson, G H (1992) The Psychology of Interrogations, Confessions and Testimony (Chichester: John Wiley & Sons).

Gudjonsson, G H et al (1993) 'Persons at Risk during Interviews in Police Custody: The Identification of Vulnerabilities', Royal Commission on Criminal Justice Research Study NO. 12 (London: HMSO).

Hillis, G (1993) 'Diverting Tactics' 89 Nursing Times 24.

Home Office Circular 66/90 (1990) Provision for Mentally Disordered Offenders (London: Home Office).

Home Office Circular 12/95 (1995) Mentally Disordered Offenders and Inter-Agency Working (London: Home Office).

Joseph, P (1990) 'Mentally Disordered Homeless Offenders - Diversion from Custody' 22 Health Trends 51-53.

Joseph, P (1992) Psychiatric Assessment at the Magistrates' Court (London: HMSO).

Kelly, K et al (1993) 'The Role of the Police Surgeon' 9 Policing 148-159.

McConville, M et al (1994) Standing Accused: The Organisation and Practices of Defence Lawyers in Britain (Oxford: Clarendon Press).

McFadyean, M (1993) 'LAW: Locking away our problems: A fledgling scheme is struggling against the odds to keep the mentally ill out of jail' The Guardian, November 30, 1993.

NACRO (1993a) Mental Health Advisory Committee Mentally Disturbed Offenders and Community Care Policy Paper No. 1 (London: NACRO Publications).

NACRO (1993b) Mental Health Advisory Committee Diverting Mentally Disturbed Offenders from Prosecution Policy Paper No. 2 (London: NACRO Publications)

Reed Committee Report (1992) Review of Health and Social Services for Mentally Disordered Offenders and Others Requiring Similar Services Volume 2: Service Needs - Community Advisory Group Report (HMSO 1992)

Robertson, G (1993) The Role of Police Surgeons, Royal Commission on Criminal Justice Research Study No 6 (London: HMSO).

Runciman Commission (1993) Royal Commission on Criminal Justice (London: HMSO) Cm 2263.

Staite, C & Martin, N (1993) 'What else can we do? New Initiatives in Diversion from Custody' 157 Justice of the Peace 280-281.

Footnotes

(1) See further Summers, R J (1988) History of the Police Surgeon (Association of Police Surgeons of Great Britain). Back to text.

(2) Code of Practice C (issued in pursuance of of Police and Criminal Evidence Act 1984 s 66 which governs the treatment of detained persons) stipulates that the custody officer must immediately call the police surgeon if the detainee appears to be suffering from mental disorder/physical injury, does not show signs of sensibility or awareness or is failing to respond normally to questions or conversation (Para 9.2). Back to text.

(3) The Police and Criminal Evidence Act 1984 Code of Practice C Para. 9.2 states that where the custody officer suspects that the detainee is mentally disordered s/he must call a police surgeon for a medical opinion. Back to text.

(4) 'Doctors warn on police cell care’ The Independent June 21, 1994. Back to text.

(5) This may not be the case with regard to the standards of care required in the tort of negligence however. See Knight v Home Office [1990] 3 All ER 237 where a mentally disturbed prisoner, who was known to be a suicide risk hanged himself despite being observed every fifteen minutes by staff in the prison hospital wing. It was claimed that the prison authorities were negligent but the court said that they were not in breach of their duty of care towards the prisoner, as it was not correct to require a prison hospital to provide the same facilities and staffing levels as an ordinary psychiatric hospital. Back to text.

(6) The Times June 6, 1994 p 10. Back to text.

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