In late February, the Equality and Human Rights Commission reported on the findings of its Inquiry into ‘Deaths in Detention of Adults with Mental Health Conditions‘. Covering the period between 2010 and 2013, the Inquiry pieced together available data on deaths of non-natural causes in police cells, prisons and psychiatric hospitals. Deaths of non-natural causes involve suicides, homicide by fellow detainees, or staff using excessive force or restraint intentionally or unintentionally. The Inquiry’s primary focus was on England and Wales, whilst drawing for comparative purposes on evidence from Scotland. Its objective was to determine whether an increased emphasis on relevant human rights obligations across the above three settings would have a proactive potential in the direction of preventing deaths in detention of people with mental health conditions and of raising the quality of treatment, care and support currently afforded to them.
Based on the Inquiry’s findings, the number of such deaths in police cells and psychiatric hospitals was 367, and 295 in prisons for the three-year period under investigation. While the statistics are promising in showing a downward trend in deaths in police custody, sustained over the last decade, with very few of those 367 deaths occurring in police cells, they raise the alarm at the continuing use of police cells as places of safety due to the lack of timely available mental healthcare provision both in hospitals and in the community. Prison statistics give another, equally serious, cause for concern, pointing to a reversal of trends compared to previous years, with substantial increases in non-natural deaths being recorded between 2012 and 2014.
Human Rights Obligations
The Inquiry was informed by the UK’s obligations based on national and international human rights law and case-law. The 1950 European Convention on Human Rights and Fundamental Freedoms (ECHR) and its incorporation into domestic law via the 1998 Human Rights Act (HRA) formed part of the Inquiry’s human rights framework.
Within this legal context, the starting reference point for a state’s compliance with its human rights obligations is its positive duty of care owed to anyone who falls within its jurisdiction. For people with or without mental health conditions in state custody, as well as for their family and friends, recognition of and compliance with this positive duty of care are of utmost importance. This is as a result of the complexity of their existing vulnerabilities, the closed nature of state custody and its own challenging conditions, not least due to the large number and great diversity of detainees, the lack of familiarity amongst family and friends with institutional policies and procedures, and the potential abuse of state power in such circumstances.
This positive duty of care translates into a) the provision of advice and information to people likely to experience curtailments of their human rights, b) the existence of investigative and legal procedures with the powers to consider human rights claims, to establish whether a violation has taken place, to identify and direct the prosecution of those responsible for human rights breaches, and to afford the victims compensation, and c) the provision of preventative measures so as to reduce the likelihood of future violations.
For every non-natural death in state custody, the state risks falling short of its positive duty of care, triggering a number of human rights claims depending on the individual circumstances of the case, such as Article 2, right to life; Article 3, freedom from torture and inhuman or degrading treatment or punishment; Article 13, right to an effective remedy; and Article 14, freedom from discrimination.
The Inquiry’s Findings
While in the wake of relevant litigation, official reviews and inquiries we have seen the gradual (or painstakingly slow, some would say) implementation of a series of welcome changes to policy, procedure and practice across the three institutional settings, such as the overhaul of the Coroners’ Inquest system between 2003 and 2013; the 2003 transfer of responsibility of in prison healthcare from HM Prison Service to the Department of Health and NHS Trusts; and the 2014 bolstering of the IPCC investigation procedure, the report of the Inquiry makes a poignant reading. It draws attention to the fact that after 15 years of the 1998 HRA becoming law, human rights obligations do not have a strong footing in the official guidance across the three settings and highlights that lessons from the past have yet to be learnt and that immediate action needs to be taken to address deficiencies and to increase transparency and accountability following a death in custody.
In this respect, we come across the following depressingly recurrent themes: a) a lack of communication and sharing of information amongst agencies regarding the vulnerabilities and mental healthcare needs of detained people, b) a lack of involvement of and consultation with family and friends regarding the mental healthcare plan and tragic death of their detained relative and friend, c) lapses in risk assessments due to inadequate record keeping, erratic follow-up observations of the detained person’s progress, and lack of of mental health training and awareness amongst employees, d) the absence of an independent and transparent investigation procedure into deaths in psychiatric hospitals, e) no common working definition of what constitutes restraint amongst the three settings, and f) a lack of mental health resource provision regarding beds in psychiatric hospitals and treatment and care in the community, which greatly contributes to the inappropriate use of police cells as a place of safety.
‘The Difficult Patient’
The Inquiry’s findings should compel the attention of our society as a whole. They are inextricably linked to wider and hugely commanding issues, speaking loudly of the fundamental lack of parity of esteem between physical and mental health in terms of the provision of treatment and care as well as of our perceptions of and attitudes to them, and of the criminalisation of ill mental health. Ill mental health is not a rarity and affects both adults and children.
The Inquiry informs us that “one in four British adults experience at least one mental health condition, and one in six are experiencing a mental health condition at any given time, with some experiencing more than one”. Against this background, in the NHS there is currently no waiting time limit for mental health treatment similar to the mandatory 18-week waiting period for physical health introduced a decade ago.
In May 2014, Martin McShane, in his role as NHS England’s director for people with long-term conditions, identified “commissioning development – raising skills and capabilities to secure services” and “improving crisis care and waiting times” as two of the five pathways to achieve parity of esteem between physical and mental health. Yet, to the admission of politicians and against the current government’s commitment to the concept, “mental health was the first to be cut”.
A joint report by the British Psychoanalytic Council and the UK Council for Psychotherapy published in January 2015 has documented the frustration of their practitioners with increases in waiting times and in the complexity of cases before them, as well as the under-commissioning of psychotherapy sessions in the NHS. This has resulted in highly experienced practitioners deserting NHS practice in favour of self employment and has left people in need unable to access timely, appropriate, regular and affordable treatment and support. Similarly, a report published by the Health Select Committee in November 2014 has uncovered the poor state of Children’s and Adolescents’ mental health services and the grave implications that holds for vulnerable children and young people. Afflicted with increases in waiting times, insufficient and inadequate early intervention programmes and in-patient care following spending cuts against a reported rise in demand, police cells become the place of safety and first contact point for young people and children, with 263 such cases being recorded in 2013.
Police cells are not the only places that we resort to in want of medical places of safety, either community based or in-patient. We use prisons, too. Based on research by the Ministry of Justice, 49 per cent of females and 23 per cent of males in prison suffer from anxiety and depression, with 25 per cent of women and 15 per cent of men reporting symptoms of psychosis. 26 per cent of women and 16 per cent of men had mental health treatment in the year before entering prison. The first month in prison and the immediate period following release are the most vulnerable times for prisoners when the risk of self-harm and suicide is particularly acute.
Our discriminatory treatment of and approach to ill mental health reminds us of The Difficult Patient of Robert Hinshelwood, a leading figure in British Psychiatry and a Professor of Psychoanalysis. Reflecting upon the contribution of scientific psychiatry to the understanding of patients with chronic schizophrenia and severe personality disorder, Professor Hinshelwood identifies them amongst the Difficult Patients whose ill mental health is perceived by the mental health practitioner as an attack on their professional identity. To make sense of and to cope with the difficulties (emotional, mental, professional) the difficult patient throws at the latter, the mental health practitioner falls back on the comfort of the objectivity of biological psychiatry. In doing so, they shut themselves away from the subjective and painful world of their patients, thus contributing to their de-personalisation and accentuation of their symptoms. The Patient is Difficult because of the difficulties that mental health professionals, personally, experience (and perceive that they experience) in working with them.
One of the lessons from psychoanalysis is that the quest for impartial understanding passes through the corridors of subjectivity. Reflection upon our practices and perceptions is long overdue as the numbers of people with mental health conditions who are detained, self-harm and lose their lives in detention so tragically demonstrate. It seems that between them and us, we are the difficult ones.
1 Wadham, J. and Mountfield, H. (2000) Blackstone’s Guide to the Human Rights Act 1998, London: Blackstone Press Limited.
2 See, for example, Keenan v. UK (2001) 33 EHRR 38; Paul and Audrey Edwards v. UK (2002) ECHR 303; R. v. HM Coroner for the Western District of Somerset, ex parte Middleton  UKHL 10.