Baroness Walmsley
Main Page: Baroness Walmsley (Liberal Democrat - Life peer)Department Debates - View all Baroness Walmsley's debates with the Home Office
Wednesday 30th November 2016
(7 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 72-I(Rev)(a) Amendments for Report, supplementary to the revised marshalled list (PDF, 62KB) - (30 Nov 2016)
Baroness Walmsley
“136A Prohibition on using police stations as places of safety(1) A person may not, in the exercise of a power to which this section applies, be removed to, kept at or taken to a police station as a place of safety.(2) The powers to which this section applies are—(a) the power to remove a person to a place of safety under a warrant issued under section 135(1);(b) the power to take a person to a place of safety under section 135(3A);(c) the power to remove a person to, or to keep a person at, a place of safety under section 136(1);(d) the power to take a person to a place of safety under section 136(3).(3) In this section “person” means a person of any age.(4) The Secretary of State may by regulations made by statutory instrument appoint a date on which this section comes into force.(5) In this section “place of safety” means residential accommodation provided by a local social services authority under Part III of the National Assistance Act 1948, a hospital as defined by this Act, an independent hospital or care home for mentally disordered persons or any other suitable place.”
Baroness Walmsley
My Lords, we now move to issues relating to the interaction between the police and people with mental health problems. This amendment would ban the use of police cells for adults detained under Sections 135 and 136 of the Mental Health Act 1983 in the same way as this Bill now bans it for children under 18.
I am very encouraged by the 53% reduction in the use of police cells as places of safety during 2015-16. The police, mental health services, local authorities and voluntary sector partners deserve our congratulations on that. However, that still left 2,100 people taken to police cells—a situation that will have led inevitably to exacerbation of their mental health crisis. I listened very carefully to what the Minister said in response to a similar amendment that we discussed in Committee. I thank the Minister for the meeting that we had at the Home Office to discuss it. I am encouraged by the clearly expressed intention of the Government eventually to reduce the use of police cells to zero, and I hope that the Minister will feel able to accept this modified amendment, which takes account of her concerns.
We got rid of discriminatory mental health legislation only a few years ago, and we are on a journey towards parity of esteem between physical and mental health. The Mental Health Act 1983 is now over 30 years old, and we need further to update how we treat people with mental health problems and enshrine that in statute. At least two police forces have now managed to reach the desirable target of zero use, which proves that use of police cells can be avoided even in exceptional circumstances, so we are not asking for something that has been shown to be impossible; we are asking for something that has been shown to be possible. But we appreciate that it requires the provision of more health-based places of safety, more training, better regulation, better partnership working and more diversionary strategies such as street triage.
That is why subsection (4) of the new clause, which my amendment would insert into the Bill, makes provision for delayed implementation until such time as the Secretary of State is convinced that everything is in place to ensure that there is no longer any need to take people in mental health crisis to a police cell for their assessment to be done. I appreciate that this was not strictly necessary, as implementation is dealt with elsewhere in the Bill, but I included it to make clear what I am asking for. I suggest that an implementation date of April 2019 is quite achievable.
When you are in a crisis, you need compassion and understanding and, with the best will in the world, the police are not the people to give that. That is why the police themselves are keen that the objective of my amendment is achieved as soon as possible. A mental health crisis is a mental health car crash. Nobody who broke their leg in a road accident would expect to be taken to a police station for triage; they would be taken to a health-based place of safety for their needs to be assessed and treated—in other words, an A&E department in hospital. We cannot say that we have achieved parity of esteem between physical and mental health if we continue to treat mental health emergencies in a different way from the way we treat physical emergencies. People detained in this way are not criminals and yet they are treated as such and feel distressed and confused, making it even more difficult to help them get well.
Baroness Chisholm of Owlpen
I was pointing that out as just one of the reasons why it might be—but we have to remember that, as we know, mental health is going through a huge change at the moment. As I said in a debate on Monday, I am afraid that we are going from a very low base. We have to be aware that it will take time for these places of safety to be there to ensure that we have an increased number of beds or places of safety for these people to be taken. That is part of the reason for the discrepancy.
To go back to further points raised on mental health, the noble Lord, Lord Rosser, raised an issue related to the respective changes to police powers under Sections 135 and 136 of the Mental Health Act. The noble Lord suggested that the maximum detention period should be reduced further to 12 hours. We are confident that the Bill reduces the maximum detention period by the appropriate amount—from 72 hours to 24 hours. The Government have seen evidence that the average assessment under Section 136 is conducted in under 11 hours. Furthermore, we fully support the target set by the Royal College of Psychiatrists for assessments to commence within three hours. However, there are some cases when it is not possible, due to the condition of the person detained, to conduct a meaningful assessment within 12 hours: for example, if they are intoxicated through alcohol or drugs.
The noble Lord also mentioned duties on police to consult with mental health professionals, with detainees having a right to an independent mental health advocate. The second issue concerned access to independent advice. Clause 78 requires police officers to seek advice from certain specific healthcare professionals, if practical, before making a decision to exercise their powers under Section 136. This is about supporting police officers to make the best possible decisions when they encounter a person who may be experiencing a mental crisis. This provision builds on existing good practice of police forces and local NHS services working together collaboratively, including through street triage schemes. The “if practical to do so” condition will avoid tying the hands of an officer if, in their judgment, they need to use the powers quickly to secure an individual’s safety.
On detainees’ access to advice, for example from a mental health advocate or an appropriate adult, the guidance supporting the implementation of these provisions will set out the expected support to be provided to any person detained at a place of safety under Section 135 or Section 136. Such support can, in our view, most appropriately be provided by health staff already present, rather than another person in a bespoke role, which would introduce delays and jeopardise professionals’ ability to conduct the assessment within 24 hours.
The noble Lord asked whether a person’s detention is disclosable if they subsequently apply for a disclosure and barring service check. In 2015 the Home Office published revised statutory guidance on enhanced DBS checks in relation to Section 135 and Section 136 detentions. The guidance now emphasises that the use of these powers in and of itself is unlikely to be sufficient to justify disclosure. The police are now directed to specifically factor in the behaviour of the detained person at the time, and how long they were detained. The Government’s position is that we cannot wholly rule out the possibility that there will continue to be circumstances in the future when a person’s behaviour is so extreme that it can safely be managed, at least initially, only in a police station. We are not legislating for some future point when that position will cease to be the case, which is what the amendment suggests.
I hope that, with all the things I have set out, and given our clear shared objective of doing what is in the best interests of all concerned, including their safety, I hope that the noble Baroness will be content to withdraw her amendment.
Baroness Walmsley
My Lords, I thank those who supported my amendment. I was fascinated by the treatise of the noble Lord, Lord Rosser, on other aspects of Sections 135 and Section 136. He is, of course, absolutely right that there is no correlation at all between the use of police cells and the rurality or urbanisation of the area concerned: absolutely none. I have always known that Merseyside is a very special place—because that is where I come from—but apparently in Merseyside there are no “exceptional circumstances”, whereas there are in other places. I cannot understand the Government’s determination to insist that there will be exceptional circumstances in other places if there are none in Hertfordshire and Merseyside.
It is quite clear that the Government are not going to move on this. However, I have to say that I welcome, of course, what the noble Baroness said about regulations. We will have to keep a very careful eye on how these work and whether they achieve our joint objective of bringing the numbers down as low as possible. I very much hope that that is exactly what will happen over the next few years. The hour being what it is, I beg leave to withdraw the amendment.
Baroness Walmsley
“Child sexual exploitation: duty to refer
(1) Where the police have a reasonable belief that a child under the age of 18 has been a victim of a sexual offence or other forms of child abuse, the police must refer the child for a mental health assessment by an appropriately trained professional.(2) The Secretary of State must by regulations made by statutory instrument define the meaning of an “appropriately trained professional”.(3) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
Baroness Walmsley
My Lords, Amendment 118 places a duty on police forces to refer children under 18 who are the victims of a sexual offence or other forms of child abuse for a mental health assessment by an appropriately trained professional. It mandates a currently poorly used referral pathway. I listened carefully to the Minister’s response in Committee and have changed the amendment that I bring forward today. I wish to stress that this amendment does not mean that all these children will need a CAMHS intervention or will have a diagnosable mental health condition. It is designed not only to support children who are the victims of these awful crimes but to inform commissioning decision-makers about the magnitude of the problem, so as to ensure that the right services are in place. We cannot rely on the numbers that reach the clinical threshold for intervention, because these thresholds are far too high, given the shortage of child and adolescent mental health services.
The amendment is deliberately not prescriptive as to who “an appropriately trained professional” would be, leaving this to regulations and local flexibility. This person could be a nurse, school councillor, trained social worker, councillor in a sexual assault referral centre or another appropriate local professional. The amendment strikes the right balance between local and national responsibilities. It introduces a national requirement for a referral pathway and assessment, but it does not set out the how and where, which will be up to local areas to determine. This is responsive to the level of need of these children and the evidence we have that they are not receiving the therapeutic support they need for their recovery.
As I said at the outset, the amendment would not mean that all victims of a sexual offence or other forms of child abuse would meet the clinical thresholds. Some may, but some may need other types of support—for example, school or community-based child sexual exploitation support groups, family support services, or support for parents and children to equip them to understand the emotional impact of abuse. The amendment would deliver the recommendation in Future in Mind, which the Government are committed to implementing in full, that,
“those who have been sexually abused and/or exploited receive a comprehensive assessment and referral to the services that they need, including specialist mental health services”.
The evidence for the amendment is compelling. In the past year the Children’s Society has calculated that more than 40,000 crimes of a sexual nature were reported against children. Each of these 40,000 is a child suffering the effects of horrific crimes, which come with a multitude of long-term effects that need to be addressed. We have only to read the recent media accounts of many footballers who were abused as children to understand the lifelong effects of these terrible experiences. They destroy lives and careers. Analysis by the Children’s Society of referral pathways for vulnerable groups found that less than half of mental health trusts identify children who have experienced sexual exploitation in referral and initial assessment forms. The NSPCC review of local transformation plans found that only one-third of these plans mentioned provision of services to meet the needs of these children. Yet while these figures are appalling, the experiences of the victims themselves show the need for the amendment even more.
Last week the noble Lord, Lord Kennedy, and I attended a meeting organised by the NSPCC and the Children’s Society and I want to share with noble Lords the account of Sarah—not her real name—who told her story. I record my thanks to her for sharing her experiences and her powerful message as to why this amendment is needed. Sarah was abused from a very young age by a member of her extended family and this had a long-term impact on her life. As her understanding of consensual relationships developed, Sarah realised that what she had experienced was abuse and as a teenager she suffered from clinical depression and was extremely suicidal. She was later referred to counselling and gradually came to terms with what had happened to her. The abuse had a long-term impact on her mental health, including eating disorders, drug abuse, PTSD and abusive relationships. At the meeting Sarah told us that the support she received was invaluable for her recovery. She thought that the amendment would support young people who had experienced sexual exploitation and help them recover more quickly by ensuring a direct referral from the police.
The amendment will also contribute to parity of physical and mental health. Recently, nine ex-Health Secretaries wrote to the Health Secretary to encourage the Government to,
“make good the promise to achieve genuine equality”,
between physical and mental health. Parity of esteem was enshrined in law by the Health and Social Care Act 2012, yet examples of this being enacted in policy are still rare. We know that nine out of 10 children who have experienced abuse at an early age will develop a mental illness by the time they are 18. Without assessment, how can we know which 10% will not need help? Issues faced include post-traumatic stress disorder, anxiety, self-harm, depression and, as we have heard, suicide attempts.
This is not a novel idea. There are numerous examples of where preventive public health initiatives have been set up in response to data on the prevalence of certain conditions affecting the physical health of a population. For example, cervical screening is now offered to all women over the age of 25. My first job out of university in the late 1960s was scanning the cervical smears of women with symptoms, so I know how effective screening is at picking up early cancer and pre-cancerous cells so that the patient can be treated early. The current rate of cervical cancer is 12 cases per 100,000 women—0.012%. Since its introduction, the screening programme has led to a decrease in the number of cervical cancer cases by about 7% each year, and it is estimated that up to 5,000 cases of cervical cancer are prevented annually because of cervical screening. That is a terrific record but the prevalence of cervical cancer is a great deal less than nine out of 10.
Viscount Hailsham
My Lords, I hope we do not go down this road. It seems a thoroughly bad idea. Of course there is a good case for voluntary provision. There may be many cases where assessment is highly desirable but this is coercive. It imposes an obligation on the police officer to do what is set out in the amendment.
Baroness Walmsley
I would like to make it clear that it would be only with the consent of the child, so it would be consensual as far as they were concerned.
Viscount Hailsham
That is not what it says in the amendment. Had it been so, I would not object, but we are talking about a piece of legislation, and it is coercive. If the police officer has to do it, presumably the child has to co-operate. You are not dealing just with young children, either. You are dealing with people up to the age of 18 and I would have thought that there were a substantial number of cases where the child would not want to be assessed and would find it pretty traumatic if he or she was. While there may be a strong case for putting in place a voluntary system for doing it, there is absolutely no case for making it coercive. I really hope that the House will not think of pursuing such a policy.
Baroness Walmsley
My Lords, I thank the noble Baroness, Lady Howe, and the noble Lord, Lord Kennedy, for their support. I reassure the noble Viscount, Lord Hailsham, that there is nothing coercive about this. I think there is a misunderstanding because a health issue is being debated in a criminal justice Bill. The reason there is no need to mention anything to do with consent in the amendment is that it is quite unnecessary. Any professional who would be doing the assessment has a professional duty to engage with any patient only with that patient’s consent. Indeed, it would be self-defeating even to try to do an assessment because it would not be effective, so it is totally unnecessary to mention consent in that situation. It is perfectly normal that consent is an absolute given in health issues among all health professionals.
I say to the noble Earl, Lord Attlee, that it is not inflexible either because it should not be for a policeman to decide whether a young person has been affected mentally by the situation. It is coercive if you count coercing the police to do the right thing and share the information, but it is not coercive in relation to the children. The police have to share the information, and it is then for the qualified person doing the assessment to decide what level of help—or no help at all—is needed by that child. That is perfectly straightforward and I see no reason why it should not be done.
The fact is that the police sometimes refer children for mental health assessments, but very rarely. Sometimes children go through a lot of barriers before they get to the assessment, and they disengage. They say, “I can’t do with having to tell my story over and over again to a whole series of people”. What should happen is a referral from a police officer directly to the people who can assess—with the child’s consent, of course—as their professional duty, whether that child needs any help at whatever level.
Clearly, I am not going to convince the Minister, but I should like to keep talking to her about this. Indeed, we have a meeting in the diary for next Monday about this very thing, so I would like to do that. Because of that, I beg leave to withdraw the amendment.
Baroness Walmsley
“Disallowing use of Tasers by police officers on psychiatric wards
(1) A police officer may not use a Taser or electroshock weapon during a deployment on a psychiatric ward save in exceptional circumstances.(2) Any use of a Taser or electroshock weapon on a psychiatric ward is required to be referred to the Independent Police Complaints Commission in such manner as the Commission specifies and not later than the end of the day following the day on which the Taser or electroshock weapon was used.(3) The Secretary of State may by regulations made by statutory instrument define “exceptional circumstances”.(4) A statutory instrument containing regulations under subsection (3) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
Baroness Walmsley
My Lords, this is another thing on which I did not succeed in convincing the Government in Committee, but I listened very carefully to what the Government said and have made some changes.
I had been seeking to ban the use of Tasers by police in psychiatric wards, but since the Government feel that their use may sometimes be necessary, my amendment asks the Government to specify very clearly in regulations the exceptional circumstances under which Tasers should be used. Bearing in mind that the use of such a weapon is a very serious issue and has sometimes led to the death of the person who has been tasered, my amendment asks that any use of such a weapon in a psychiatric ward should automatically be referred to the Independent Police Complaints Commission as a matter of course in just the same way as a death in custody is reported and investigated. By that means we would find out in considerable detail what led to such a severe intervention, and that information can be helpful to the police and mental health providers in improving the way they deal with people in great distress who may well have turned to some kind of violence or aggression. The hour is late, and that is all I wish to say. I beg to move.
Viscount Hailsham
My Lords, I agree with the noble Baroness that the hour is late, and therefore I shall be brief. I was here for the debate in Committee on this subject and I was wholly persuaded by the Minister about the undesirability of this amendment. I know full well that Tasers can be very injurious and I know that they are dangerous, but I also know from considerable personal experience that people in psychiatric wards can be extremely dangerous, volatile and violent.
I speak as somebody who was for some years Minister for the special hospitals. There were three mental hospitals in my constituency. I was the Minister for Police for a time and, relatively recently, I was on the monitoring board of a local prison. I know they are different, but in prisons you see many people who ought to be in psychiatric hospitals. The truth is that sometimes there is no choice: people get possession of a weapon and threaten their nurses or pose a very real threat to the other residents on the ward. What is a police officer to do if summoned and faced with a person with a knife? The truth is that in exceptional cases—which I will come to in a moment—a Taser may be necessary. I am certainly not going to go down the road of prohibiting that by statute.
What does “exceptional circumstances” actually mean? I can tell the noble Baroness: when there is a reasonably founded belief that it is necessary in self-defence or in defence of a third party. If I was the Secretary of State and put that into a statutory instrument, so what? Ultimately, it has to be decided by the court. If you look at this amendment and reflect on its consequences for one moment, the police officer is guilty of assault unless he can bring forward the defence. But who is responsible for bringing forward the defence? Does he have to prove that his acts fall within the exceptional circumstances or does the prosecution have to negate their existence? I suspect the latter, but it is extremely difficult for a police officer in those circumstances. It is a legal minefield and good news for lawyers—which is not something I am advocating in this case. It is a thoroughly bad amendment and I hope we hear no more of it.
Baroness Williams of Trafford
My Lords, this amendment brings us back to the use of Tasers. I am grateful to the noble Baroness, Lady Walmsley, for taking on board the points raised when we debated this issue in Committee and coming back with a revised amendment. My noble friends Lord Hailsham and Lord Attlee have given us a flavour of what we discussed then.
Any use of force by police officers in psychiatric wards on patients—or on any member of the public in any setting for that matter—must be appropriate, proportionate, necessary and conducted as safely as possible. When police officers need to attend and use force, they must be able to account for their actions. As the noble Lords, Lord Dear and Lord Rosser, and my noble friend Lord Hailsham indicated in Committee, a blanket ban on the use of Tasers in psychiatric wards would remove this valuable police tactic when they are dealing with potentially very violent situations.
Baroness Williams of Trafford
I do not usually take interventions on Report, although I will acquiesce to the noble Baroness because she did not speak for very long.
Baroness Williams of Trafford
I welcome the fact that the noble Baroness now accepts that there will be exceptional circumstances. My noble friend Lord Hailsham has very clearly outlined what exceptional circumstances would be, and I explained in Committee that it was when all other options for restraint had failed, particularly when the person has perhaps had to be kept at length from the police officer—in other words when going near the person would create a danger for other people.
The Taser was introduced to be used at that intermediate stage. It is to be used where de-escalation at the lower end has already been tried but has failed, and where the officer deems that other options—ranging from the use of lethal force, as my noble friend said, at the higher end—will not resolve the immediate threat in the safest and most proportionate way.
With regard to recording incidents, as the noble Baroness pointed out, each officer who deploys a Taser is required to complete a Taser evaluation form on every occasion where the device is used. The form should be completed prior to the end of each tour of duty, but in any case within 24 hours of the use. The police forces’ lead Taser officer is responsible for reviewing, collating and recording all Taser evaluation forms.
In Committee I explained that new police data were being collected on the use of force by officers, including force used in a hospital setting, to further improve the existing system of recording and reporting. Police forces are working to implement this new recording system and we expect data to be published as part of the Home Office’s annual data return in summer 2018 to ensure that the use of Tasers is absolutely transparent.
I put it to the noble Baroness that effective scrutiny of the use of Tasers is a better way forward than seeking to legislate. No officer will use a Taser lightly and will seek to argue that there were indeed exceptional circumstances. I have already pointed to the anomaly that this amendment would create in respect of the use of lethal force—no one wants to see that happen—if a safer tactic was unavailable. I hope the noble Baroness will feel happy to withdraw her amendment.
Baroness Walmsley
My Lords, I thank the Minister for her reply. Anyone hearing what has been said in the House tonight would think that I was asking for a ban on the use of Tasers. If noble Lords read my amendment carefully, they will realise that that is not what it would do. It accepts what the Government said in Committee, and during meetings that we had at the Home Office, that there may be exceptional circumstances. That is why I am no longer asking for a ban; I make that absolutely clear to noble Lords who have spoken.
However, it is a very serious matter for a police officer to use a Taser, as the Minister herself has said, in which case I think it would be helpful to the police if the Secretary of State were to specify clearly what is meant by “exceptional circumstances”. The noble Viscount, Lord Hailsham, has tried this evening to give a very simple account of what that means, and indeed the Minister has done the same. If it is that simple, why can it not be done? I think it would help the police.
I am aware that, following discussion in another place of an amendment similar to this one, a lot more information is now to be collected about the use of Tasers. I think that is a very good thing, and I look forward to seeing what we can learn from it. However, in this amendment I seek to be helpful to the police and to protect them by making very clear what they can and cannot do, and under what circumstances. But clearly the Government are not going to accept that, so I beg leave to withdraw the amendment.