Oral evidence: Policing and mental health, HC 202Tuesday 1 July 2014
Oral evidence, 1 July 2014.
Witnesses
Deborah Coles, Co-Director, INQUEST, Tony Herbert, Father of James Herbert, and Barbara Montgomery, Mother of James Herbert, gave evidence.
Chair
Deborah Coles, Mr Herbert and Ms Montgomery, thank you very much for coming to give evidence today. Could I start with you, Mr Herbert and Ms Montgomery, on behalf of the whole Committee, to pass on our condolences following the death of your son James. He was only 25 when he died, and it must have been a terrible, terrible shock to both of you. Can I, again on behalf of the Committee, commend the way in which you have taken this issue forward in raising awareness? So many other people who would be grief-stricken would not want to do what you have done, but what you have done has been extremely valuable. We are most grateful to you for coming here to share your experience with us.
Tony Herbert
Thank you.
Barbara Montgomery
Thank you.
Chair
You said, I think, at the time of your son’s death, “No person should have been subjected to that journey, let alone a mentally ill one in a highly distressed state. It was inhumane. His life and his future were stolen from him.” You obviously miss him every day that he is not here, but could you tell the Committee where you think the most effective intervention point should have been in respect of James and his problems on that fateful day? What should have happened that did not happen?
Tony Herbert
I think the first point really is the time when James was on the Bath Road and he was in a very distressed, but not violent, state. He was wandering in and out of traffic. A PCSO had been called to the scene and the PCSO, who was kind of shepherding him, needed backup and called a police officer; some members of the public became involved at that stage. When the police officer came, James was on the ground and restrained pretty quickly. What didn’t happen was that there was no attempt by the police officer to de-escalate. Barbara, his mother, was 400 yards away and eventually came on to the scene towards the back end. So the first point where things go completely wrong: the police officers were fully aware that James had mental health issues, both historically and through his behaviour that day; they were also aware that there was no history of violence or aggressive behaviour.
Chair
When you say, “They were aware”, obviously from the description that you have given this Committee—we are not doctors here—it is very clear that someone observing the scene would have realised that this was not normal behaviour.
Tony Herbert
Correct.
Chair
To be going out into the middle of summer in, I understand, a big overcoat, and running through the traffic on a busy road. When you say, “They were aware,” how would they have been aware of that?
Tony Herbert
They had contact earlier in the day, both from Barbara and from members of the public, who had reported James behaving bizarrely and James was known to the police in Wales as having mental health issues. In 2009, about 14 months before he died, there had been a visit from the mental health people to our house and they had assessed him and decided that they were not able to section him because his mental health at that stage was not seriously bad enough. I think the witnesses also, as you said, are very clear that the police officer, when he was called on to the scene, commented to control, “Is that the chap whose mother has been asking for some help and we are going to try and give her some information?” The answer was, “Yes.” Perhaps because the situation was out of control, with members of the public involved at that stage; there just was not an attempt made to take a step back. If that step back had been taken, then James would be alive today.
Chair
Ms Montgomery, you told us and you have told others that on the way to police custody you—not you personally, but James—passed two hospitals.
Barbara Montgomery
He would have passed two small hospitals, community hospitals.
Chair
Either of which could have been —
Barbara Montgomery
At the end of the journey, they would have also passed Yeovil Hospital, which is the main hospital.
Chair
So, your plea when you rang the police was to ask for help. You wanted help, did you?
Barbara Montgomery
The police had been to the house earlier in the day because—I did not know at the time—James had been out of the house acting strangely earlier in the day and people had reported this. The police knew where James lived, where he was living, and they had come to the house. Later in the day, James had left the house and disappeared with one of the St Bernard dogs and I was very concerned because of the police coming earlier in the day and the way that he had perhaps been acting earlier. So I had gone out looking, and when I could not find him I decided to call the police to ask if they could help locate him.
Chair
So, you did not ask for help with him; you asked to find him. That is why you rang the police.
Barbara Montgomery
When I first rang that is what I was asking for.
Chair
Did you also ring a doctor, nurse or a paramedic in the first instance?
Barbara Montgomery
No, I didn’t. I went back out and looked. The police rang me back and they told me that he had just been seen by an officer on Bath Road and that he was perfectly okay and fine. So I went straight out on to Bath Road to see him, to try and bring him back. I managed to get the dog and to bring her back, but James didn’t really communicate with me very much. He was not acting strangely in the sense of doing anything what might be considered crazy at the time, he just went off down an alleyway.
Chair
Just help the Committee in this way: at the point where the police officer found him and restrained him, is it right that you would have liked him to have gone to seek medical help?
Barbara Montgomery
Absolutely, absolutely. You see, as things went on, I took the dog back to the house, but the other people had been phoning the police. I was ringing Tony to try and explain to him what was happening, and I could see out of the front window, as I was stood on the phone, a police car go very quickly down past the bottom of the road. So I immediately ended the call and went back down on to the scene. By the time I arrived there James had been restrained and he was in the back of a van—a van that he could barely fit into, the space was unbelievably small.
Chair
Was he a tall lad?
Barbara Montgomery
He was 18 stone and he was big built, but a very gentle chappie as it happens, but they had squashed him into this very dreadful space. I managed to get into the side of the van. When I saw him, I could see that there were very strange things going on physically and I pleaded with the police to please take him to hospital, to please get some sort of medical help. “No.” I asked them, “Please can I come with him? Please let me travel with him.” “No.” They would not let me go. Nobody travelled with him in the back of that van. He was left isolated, totally restrained, in the back of a van with no help, in a van that was too small for him, on a boiling hot summer’s day, totally restrained, and no monitoring—there was nobody in the back with him. That was for a journey of over 40 minutes.
Tony Herbert
He stopped breathing 11 minutes after he arrived at Yeovil Police Station.
Chair
Was that the last time you saw him alive, Ms Montgomery?
Barbara Montgomery
Yes.
Chair
So, looking at that history that you told the Committee, you think that immediately he was restrained, he really ought to have had —
Barbara Montgomery
He ought to have had help, yes, absolutely—medical help, without doubt.
Chair
Do you blame the police for this or do you blame the fact that there was not this kind of provision available? I know there was an IPCC investigation, which has happened because of your campaigning, but if you were to put your finger on how it could have changed and how he could still be alive, what would that be? What would be the institutional change that should have occurred?
Tony Herbert
At the time, as far as we were concerned, James was purportedly detained under section 136 of the Mental Health Act. We learned that afterwards that is the reason he had been detained. We did not know why he had been taken away: it was not explained, there was no witness. The PCSO who was on the scene did not know what section 136 of the Mental Health Act was. So the whole thing was very detached from what we are now discussing. I live in the West Midlands, and in the West Midlands I understand the protocol is that if somebody is detained under section 136, then they call an ambulance to take them to one of three places: a hospital place of safety; the emergency room, which is where James, by the time he had been restrained, needed to go; or to a police station. The ambulance, the paramedics, are given sufficient training to be able to work with the police to get certain kind of flags that indicate where they should go. Had an ambulance been called on to the scene, James would still be alive. So that was the second big thing. The journey in the end I think was lethal. I still feel bitter, angry, I still find it unbelievable that a distressed psychotic person was restrained for over an hour with two sets of limb restraints, with handcuffs behind him and was not monitored on a journey that took him from one place to another over 43 minutes. Even at the other end when he was unresponsive, nobody looked at him and said, “This is not right, let us call an ambulance.” They took him out of the police van, they put him in a police cell, they did a cell extraction as if he was still a violent prisoner, which is all on CCTV, and then he stopped breathing.
Chair
He eventually died in the police cell?
Tony Herbert
He died in the police cell, yes. He was pronounced dead in the hospital. He was dead within a few minutes of arriving at the police station. As often in these cases, the post-mortem is fairly non-committal about the cause of death, because it is a number of things that seem to work together. But, yes, he clearly struggled against restraints and it is very clear that the kind of fighting against the restraint that happens from a person who is psychotic and in crisis is qualitatively different from that of a criminal. I am not a police officer, but from a commonsense point of view, if somebody keeps fighting against restraint beyond their own endurance, then a warning light should go on to say, “This is not right.”
Chair
I think the whole Committee is astonished by these circumstances and we are aware of your distress, but even through that distress you have come here and told us about this, and members of the Committee will ask you further questions on this in a moment.
Ian Austin
When I read Lord Adebowale’s report on this, I think the thing that struck me was his comments on the number of times that the police were involved because when people ring 999 it is coded as a sort of criminal situation rather than a medical one, which is exactly this point that I think you have been making. What do you think should be done to treat these situations as mental health crisis situations and not as criminal situations?
Tony Herbert
Potentially, from a public place, a section 136 detention is correct. It certainly requires a better trained police force with an entirely different culture than the one that we experienced four years ago. It requires meaningful partnership with the National Health Service and I think particularly the paramedics. I was quite moved by some of the evidence that we heard earlier about the actual experience of somebody on the receiving end of section 136. That needs to be expanded and work better.
Barbara Montgomery
I would add: communication. Communication in the sense that, for example, James was known to the police and there did not seem to be any communication about the situation. There seemed to be a complete failure of that. I have come across it talking to other families as well. So that I think perhaps in certainly a number of cases the police are aware of the person that they are dealing with, they are aware that they do have mental health issues.
Ian Austin
How common is it in situations like this that the police have this sort of prior knowledge of the person?
Barbara Montgomery
I could not give you figures at all.
Ian Austin
Do you know this? How typical is it that the police have known the person before and ought to be aware that there are mental health issues?
Deborah Coles
I think either they have known beforehand, or information is or should be obvious at the point of the police involvement. That is largely because a number of the cases have involved members of the public ringing up to express concerns about somebody’s behaviour, which then prompts a police response or, as Barbara said, there have been situations where families have called upon the police to assist. The very sad thing about the experience that you have just heard from Barbara and Tony is that this is by no means an isolated case and I think the frustration that I feel, looking back on INQUEST work in this field for nearly 30 years, is that there has been a pattern of cases involving very, very similar issues where the learning that should come out of these deaths to inform changes to policy and practice has just not been implemented. Many of you will be aware of the death in 1999 of Roger Sylvester in Metropolitan Police custody in a psychiatric unit. That prompted a review of mental health and policing and restraint by the Metropolitan Police. Then one fast-forwards to the death of Sean Rigg in very, very similar circumstances and one questions how we as a society learn from these deaths. While we are seeing emerging pockets of good practice, I think the one fundamental concern that we have is the lack of a national response and strategy to develop a really coherent understanding of what is happening on the ground, but also a safe policing and mental health response to people who are in mental health crisis. Just one other point I would just like to flag up that emerges from James’ death is what we are seeing is an increasing use of restraint equipment. Tony mentioned that James was handcuffed behind his back, and he had restraints on his ankles and his thighs. Now, you imagine somebody who is undergoing a crisis who is not only restrained but then subject to restraint equipment. It is absolutely terrifying. I really took onboard what Pat, the previous witness, was saying about how, when you are going through crisis, the situation is absolutely terrifying. There is another thing which raises fundamental concerns about training and attitudes and assumptions towards certain groups of people. I think Matilda alluded to this—the perception of people with mental health problems as “mad bad and dangerous”. There is the double discrimination that we then get; if somebody is from the African Caribbean community they get that kind of double perception. We see that time and time again and that is largely to do with training, but it is also to do with sometimes people losing sight of the fact that the people we are talking about here are extremely vulnerable; they are in crisis, and they are worthy and deserving of humanity and dignity. Too often these cases demonstrate that is lost sight of in the spur of the moment. The immediate response is to restrain. It is use of force rather than monitoring the situation, de-escalation, talking down. Whether or not some of the schemes that are being implemented are going to impact on that kind of use of force remains to be seen.
Tony Herbert
I am obviously not an expert on the subject, but one thing that bothers me in terms of section 136 is the increasing publicised concept virtually that if somebody is violent then you can only take them to the police cells. In James’ case, he was not violent, but that misses the point that somebody who is violently fighting against restraint is a medical emergency. In James’ case they tried to portray him as being violent pre-restraint, and that made it somehow okay that the police cell was where he should go. Very clearly it was inappropriate, and it is going to be inappropriate for anybody in that position. Somebody who is violently fighting against restraint, or even somebody who is so distressed that their behaviour is slightly dangerous, needs help; they do not need to be locked up.
Chair
Thank you, Mr Herbert. I am afraid, colleagues, we need to move on. I know lots of you have questions on this.
Mr Clappison
I have a question, which follows on from the evidence we heard and I put this first to Deborah Coles. How are families who have just been bereaved treated in circumstances such as this in general?
Deborah Coles
I am glad you have asked that question. One of the key problems in this whole area is a lack of immediate advice and support. If families contact INQUEST or are referred to INQUEST, obviously we can in a sense help families navigate through that whole process, but there are some fundamental concerns. I would say the first one is the extraordinary delay in the investigation processes that ensue—that is delays both in terms of the Independent Police Complaints Commission investigations, any subsequent decision-making by the Crown Prosecution Service as to whether or not any charges will be brought, and then delays in the inquest being held. Couple that with problems with restrictions now on legal aid and families having to go through a very protracted intrusive process to apply for funding to be represented at the inquests. Just on that, of course unlimited largely public funds are available for the police, both in terms of the Chief Constable or the Metropolitan Police Commissioner, individual officers, and then individual maybe private companies or police doctors to be represented. So there is a real problem in terms of inequality of arms. I would like Barbara to say something about the experience that she had at James’ inquest.
Mr Clappison
I was going to ask about that next, because I know there was a delay in that case before they were informed what had happened. You mentioned the IPCC. Does the involvement of the IPCC help things to be brought to resolution and people to have confidence or not?
Deborah Coles
Given I gave evidence in front of you previously about the Independent Police Complaints Commission, I think that things are moving slowly. Following on from the experience of the Sean Rigg family and the shamefully inadequate investigation into the death of Sean Rigg—Sean’s sister is behind me—one positive thing that has emerged has been that the IPCC now recognises that as part of their investigation they need to also look at issues, for example, like mental health and the involvement of other agencies outside the police in these kind of cases, which is a move forward. One of the concerns, however, still is around the delay in the investigations. You may be aware that of the case of Seni Lewis, another case that we referred to in our submission, there is a reinvestigation into his death, and the last communication I had with their lawyer and the family was that there are appalling delays in getting that reinvestigation underway. So there are still real problems about the way that these investigations are conducted overall. The only other thing I would say about that, that one of the things that we have seen in relation to two of the more recent deaths, that of Terry Smith and Leon Briggs, is that unusually the investigations are being treated as criminal investigations, which means that there is a degree more of scrutiny in terms of the individual police officers.
Mr Clappison
Following on from that, can I ask Barbara or Tony for any reflections you have and particularly on the delay I think there was in your case in being told what had happened as far as James was concerned?
Tony Herbert
That was certainly the case. Barbara was told over four hours after James died, and we felt that was so that the police could get their stories straight. The first IPCC investigation was fairly prompt in our case. We felt that it did make some points, but it missed a great deal. Barbara had a very difficult ordeal being cross-questioned by the police’s counsel at the inquest. There was a distinct effort by the police during James’ inquest to shift the blame back to the family for James’ death, which was pretty traumatising. We made several complaints, including that, after the inquest. The IPCC are reinvestigating that.
Mr Clappison
This was the counsel who was acting on behalf of the police?
Barbara Montgomery
Yes.
Tony Herbert
Correct.
Mr Clappison
So presumably on instructions from the police.
Tony Herbert
We believe so, but that is yet to be—
Chair
Thank you, Mr Clappison, most grateful.
Paul Flynn
Could I echo what the Chairman said about the account you have given? It was a very moving and vivid account and the way that you have given your evidence today—I think in the circumstances you are entitled to be extremely angry and you have given us some practical ways forward. I am sure that the whole Committee feel that what you have told us has convinced us that this is a subject of very great importance.
Chair
We are going to adjourn the Committee for the votes and then we will return. We will begin as soon as we have a quorum. Sitting suspended for a Division in the House. On resuming-
Chair
We will return to Paul Flynn's question when he arrives. I am sorry about this interruption. The wheels of parliamentary democracy have to proceed.
Dr Huppert
Thank you all very much for coming to talk about this. I am struck by your comments about going past so many hospitals. Just so that we are clear, do they all have A&Es?
Barbara Montgomery
No. Going past the hospitals you are talking about, yes?
Dr Huppert
Yes.
Barbara Montgomery
They had access to two community hospitals within about five minutes and then they also drove past the main hospital, Yeovil, to go to the police station.
Dr Huppert
Yes, that definitely has an A&E. Thank you. I just wanted to clarify that. My question is about training and the amount of training that is provided for officers and other people who are involved. What is your assessment of the minimum amount of training that should be available to all officers in mental health?
Barbara Montgomery
I think that obviously at the moment it is far too little. Quite a lot of resources need to be put in to make all officers aware of when they are in situations like that and the possible outcomes, and how they can manage them better. Perhaps more training on de-escalation—being able to communicate and approach people without just going in with brute force that then totally makes the situation escalate out of control. Without a doubt there is so much more training needed to be put in place. Something that I feel I must say is that I believe you can put in all the training you want, you can have your triage and all the rest of it, but until the police become accountable and transparent you will not have the learning that you need, because any learning depends on the police being truthful, not just to the victims—I will say “victims” for want of a better word at the moment—but to themselves, so that they can learn very valuable lessons and move forward. But my experience has been that the accountability, the transparency and the learning that I was promised on the morning I learned of my son’s death just does not happen in reality, because the police go into denial. They do not want to accept any sort of responsibility. They do not want to look at how they may have failed or how they might do something better in the future.
Deborah Coles
I just want to endorse everything that Barbara said, and rather than repeat it I just want to say something about training. Training, of course, is important but it is of all staff, and that should be at the level of those who receive 999 calls—in other words, the handlers, and that was a very important feature in the case of Sean Rigg’s death—but given that the police and 999 is often the first port of call for people who are concerned about vulnerable individuals, then training must go at all levels. It is not just for police officers. It should go right up to senior grade, and any kind of training must also engage with attitudes and assumptions. It is the point I made earlier around discrimination and racism. I would absolutely agree with what Barbara said about accountability. One of the real problems in the process that follows when deaths occur is that there is very little accountability. In fact, the police are very good at evading accountability when things go wrong. The defensive nature of the investigation and inquest process means that the issues regarding how we best learn too often get lost. The process means that by the time the inquest happens, that is the first opportunity to have proper public scrutiny and coroners can make some very well-informed findings and recommendations, but there is no mandatory responsibility on the part of anybody to implement those recommendations or, indeed, the IPCC recommendations. That is where the problems of organisational memory and learning get dissipated. Just one final thing in terms of training: I think it absolutely vital that any training these officers have involves mental health service users, but also bereaved families, because there are a lot of families like James Herbert’s family who would be more than happy to talk about their own experience. That would probably be the best training that police officers could receive.
Dr Huppert
This is all very helpful and we have looked at police accountability in some of our other reports so it applies here as well. Could I just pick up one particular thing? If we look at some of the figures we have had from the Police Foundation, Avon and Somerset police had the fourth highest number of people detained in police cells in 2012-13. I do not know if it has changed since then. I notice that West Midlands, who are a larger force, have a much smaller number. They have a system, as I understand it, where there are some police officers who are very highly trained to assist in crisis situations. How much do you think that is the way to go and how much do you think it is about lifting everybody up? Clearly, both would be ideal, but which one do you think is more important?
Tony Herbert
I am not qualified to say, but I do follow through Michael Brown's blog what happens in the West Midlands, and that strikes me as being a very good national example. But I absolutely concur with INQUEST’s point that what is needed is a national strategy. I am not qualified to say what that national strategy should be but I think it needs to be national and intuitively I feel it is the West Midlands approach.
Chair
That is very helpful and we will, as a result of what you said today, Mr Herbert, be looking at the West Midlands approach, because we want to know about good practice as well as circumstances where the system has failed, as it clearly did fail in your case.
Nicola Blackwood
I would like to thank Mr Herbert and Ms Montgomery for your very moving evidence. I am very grateful to you for coming today. I know that it must be very difficult to talk about this situation. I wanted to ask a little bit about the relationship as you understand it between the hospitals and the medical care and the police. I certainly know of instances where ambulances have been called or an individual with a mental illness has been taken to A&E and the police have then been called to restrain. I just wonder what you think might be done to try to address that situation because clearly, had your son being taken to the hospital, medical intervention might have been possible. But had he gone to the hospital first, the police might have been called, and I wonder if it might have caused a problem even then. I wondered what you might think would be helpful.
Tony Herbert
To me, and again I am not an expert in this subject, if somebody is correctly taken to an A&E setting particularly and they are proving to be difficult for the doctors and nurses there to treat or approach, then I think the police have a role to keep the nurses and doctors safe. I believe under section 136 that their responsibility does not finish—even if they go to the emergency room that is not the finish of the police’s responsibility. That can be a point of safety for a while, but they are still going to be assessed later. James did not get that far. He did not get to A&E. We know with our son that because of his temperament, had there been any attempt to de-escalate, to communicate with him rather than overpower him, his nature would have meant that he would have been peaceful. He did not do anything violent through all of his life until he struggled against the restraint, which is not, in my view, violence. Having said that, somebody should go to A&E if they are in a situation where they need emergency help. It is their human right. The police do need to keep the doctors and nurses safe, but I bet you it is not often they need to do that, I really do.
Nicola Blackwood
In terms of your call for a national strategy, do you have a position on the interaction between ambulance response and police response, because I think this does fall down on occasion?
Deborah Coles
There is no doubt it falls down. It covers some issues. I think it is not just the police who need training. It is also a question of how one engages with both the emergency services, particularly in terms of ambulance responses. There has to be greater awareness that people who are in mental health crisis should be treated as medical emergencies, in the same way we are trying to talk about parity of physical and mental health care. If somebody is going through a mental health crisis for whatever reason, everybody needs to understand that is a medical emergency. There must be much greater awareness about the serious risks of restraining somebody in that situation because I think that is another area where we are seeing cases, as the previous witness talked about, involving police being called to psychiatric units. That is completely unacceptable. It is ironic giving evidence when the Department of Health has issued its own guidance paper on the fact that restraint should be used very much as a last resort and for as short a time as possible, because of the recognition of the dangers of restraining somebody and the fact that that can exacerbate somebody's mental distress at a time when they are already vulnerable. The point around the relationship between the police and health services is a really important one and that is where we are seeing some examples of extremely good practice. West Midlands, was flagged up earlier. This was in response to a very high profile death, Mikey Powell, and a lot of the work that his family did in trying to talk to the police and other agencies about a much more integrated approach. It is also reflective of good leadership in terms of making sure staff are trained but making sure that there is a proper partnership working between the police and mental health services.
Nicola Blackwood
Clearly you were aware of your son’s mental health history and you asked for him to be taken to hospital knowing that was the right course of action to be taken in that situation, yet your request was not acceded to. What role do you think family members or carers should have in the initial response where they are on the scene or contactable?
Barbara Montgomery
I can only speak in the situation I found myself in. The police had access to me. I was literally round the corner from where the van was at the time. As I said, I saw the police go across the bottom of the road. They had me there towards the end of the episode when James was in the back of the van. They could have used me to talk to James to calm him down. I would have travelled with him. I asked to travel with him. I was not allowed to. I wanted him to go to a hospital. At the time what I was saying was that I could see he was physically not right as well, because of various signs on his forehead and things. I was asking for him to go straight to a hospital or wanting an ambulance for him to go straight to hospital because of the physical things I could see.
Nicola Blackwood
Because you knew him.
Barbara Montgomery
Yes. I knew James. I knew.
Tony Herbert
The police could have sent him home as a place of safety.
Mr Winnick
I just want very briefly to go to the situation that I do not think we have asked about when sadly and tragically your son died. As we understand it, on the information given, the Yeovil hospital staff contacted the police around 11.00 pm, shortly after James died, to ask the police if the family would be coming to see him or should they transfer his body to the mortuary. They were told to transfer the body as the family would not be visiting. The point we have is how could you possibly have visited because “the parents were not told until 1.30 am”? That is the information given, wasn’t it?
Tony Herbert
That is absolutely right.
Barbara Montgomery
I was woken up at 1.30 in the morning. We have no knowledge before then that James had died and they could not possibly make that assumption because we had not been told. I would have been straight there.
Mr Winnick
That was a blatant lie on the part of the police, wasn’t it? There is no other way to describe it.
Tony Herbert
Yes.
Barbara Montgomery
The police told many lies there, I am afraid. They were talking to me on the telephone because I was so concerned about what was happening. I talked to the police to get put through to Yeovil and they said something about, “Busy at the moment, they will ring you back any minute.” The police rang me back probably one minute later and they started asking me lots of questions about James and his medical background, who his doctor was and all that type of thing. At that point he was dead and he did not tell me.
Tony Herbert
In fact, on CCTV we saw the custody sergeant telling the person who was making the call not to tell them anything. The only conclusion that we could take from that was that the police needed that space to get their story straight. Whether or not that is right, that, of course, was a totally unacceptable four-hour delay between James being declared dead and us being told. In fact, had we been told when he collapsed, there was some possibility that Barbara at least could have been with him in the emergency room at the hospital. The coroner said that was totally unacceptable. Again, another issue where the police need to be brought to book on it because it is immediately—we did not learn about exactly the reason for the delay until the inquest nearly three years later, but it was a very, very bad shock.
Mr Winnick
It was six days before you identified your son.
Tony Herbert
It was six days before we could see him, yes.
Barbara Montgomery
Before we could see him and it was six months before we got his body back and we could have a funeral.
Deborah Coles
I just wanted to say that unfortunately this is not an isolated experience that a family has had. It was the same experience that Marcia Rigg and her sister and brother had following Sean's death. Likewise, the Thomas Orchard case shows a frightening similarity to James’ case. One thing I just wanted to say in the context of this is that a lot of the time the police will say that they have nowhere to take people with mental health problems because there is no place of safety. One of the things I hope you take from some of the case stories we have put in our submission is that too often these are people who clearly had mental health problems or were exhibiting signs of being in mental health distress where section 136 of the Mental Health Act was not even used. Despite concerns of members of the public or, indeed, of the family, they were taken into a very dangerous environment, which is obviously the police station. It also raises concerns around issues of risk assessment and then the quality of medical care that is within the police station, and that is also an issue around the role of forensic medical examiners.
Chair
Thank you. That is very helpful. I should say we will be calling the police of Avon and Somerset so that we can hear for ourselves exactly what happened in respect of your son.
Michael Ellis
Mr Herbert and Ms Montgomery, can I just say how sorry we all are for your loss? I am flabbergasted by the facts of this case and I am not unfamiliar with cases of this sort. I would just like to take a step back to the point around the police arrival and the way they dealt with James. You say it was a warm evening and he was wearing a heavy coat.
Barbara Montgomery
Yes.
Michael Ellis
He was restrained in such a way, using restraint equipment on the wrists, thighs and ankles.
Tony Herbert
Yes.
Michael Ellis
Was he in a contorted position with his arms and legs behind him?
Tony Herbert
In the van he was, yes. He was originally restrained on his back, handcuffed to the front. When there were seven people restraining him they turned him over. At that time they put the restraints on and put the handcuffs behind him. Then they carried him into the van. They put him into a particular position. Barbara, when she arrived on the scene, saw him move into a different position and his position was awkward. We subsequently understand now the position he was in at the other end was potentially not necessarily an asphyxia position, but it was nevertheless an extremely awkward and uncomfortable position.
Michael Ellis
He was a heavyset person, I think you have described.
Tony Herbert
He was 17 stone 3 lbs, yes.
Michael Ellis
He was 17 stone 3 lbs, over-clothed for the weather, in a constrained, awkward position and in an enclosed space in a caged area in a small police vehicle. Is that what you are saying?
Tony Herbert
Yes, for 42 minutes, yes.
Barbara Montgomery
It was one of those small ones that looked more like a dog van. I forget the proper name of them. Can you remember?
Tony Herbert
It was a Mercedes Vito van.
Michael Ellis
There was a particularly long journey back of over 40 minutes to the police station. It strikes me as devoid of common sense that no one was keeping an eye on him and he was clearly in distress from an early stage.
Tony Herbert
Yes.
Michael Ellis
I understand the verdict was highly critical and the coroner wrote to the chief constable after that, expressing concerns about detention in the circumstances. Is that right?
Tony Herbert
Yes, he did.
Michael Ellis
Do we know what the cause of death was? Was it postural asphyxiation?
Tony Herbert
No. His cause of death was respiratory and cardiac failure following restraint and a violent struggle against restraint, so it was kind of non-specific, as often is the case. The pathologist came up with a group of ideas, basically, as to what the mechanism of death is. I think they are beginning to understand that better. One issue that we faced, that again is a common death in custody issue, is that the words “excited delirium” were used, and excited delirium is consistently being used—it is probably increasingly less used—as a kind of police get out of jail free card, i.e. they treat somebody in this way but the force was not lethal, and therefore something else caused them to die.
Michael Ellis
Account has to be taken of the state that the individual is putting himself into, the distress.
Tony Herbert
Indeed, and in fact it is very clear in James’ case, and the pathologist agreed, that if there was an acute behavioural disorder it started after the restraint, not before.
Michael Ellis
Because we are focused on policing and mental health as opposed to the pure medical issues, another thing that strikes me as extraordinary is the fact that when he was taken out of the vehicle and into the police station, despite his non-responsive state, there does not appear to have been an immediate call for medical assistance even then.
Tony Herbert
Yes.
Michael Ellis
Apparently his clothes were removed from him in the cell. They must have therefore been quite cognisant of the fact that he was non-responsive and still nothing was done.
Barbara Montgomery
Still nothing was done.
Tony Herbert
The only thing they did was to remove the mattress from the cell to make sure he died on a concrete floor.
Barbara Montgomery
They closed the cell door and they looked through quite quickly but then when they decided that they should perhaps get some medical help the sergeant in charge—this is on CCTV as well—decided, well, why is it his job to get an ambulance? He phoned and did not ask for the correct help. He said, “We have a violent prisoner here playing up and we need some help.” So then, so the paramedics was—
Chair
Some of this is subject to the IPCC inquiry so we do have to be extremely careful about saying what other people may have said.
Barbara Montgomery
But they did not get any medical help.
Chair
Thank you. That is very helpful.
Michael Ellis
Because we are looking at the conduct of police in terms of how they deal with people in mental health crises, you would accept, would you, that very often the police will want to restrain people not only to protect themselves and others but to protect them from themselves? It is just a question of how they go about doing this and the circumstances and the attention that they give. In James’ case there was clearly an appalling failure. Do you feel that the police ought to have acted at every step of the way differently—for example, how they dealt with him at the time of his detention, travelling and in the police station?
Barbara Montgomery
Yes.
Michael Ellis
What would you say would have been the best result most likely to avoid the death of James? What could the police have done differently?
Barbara Montgomery
They could have listened to me and they could have had an ambulance there.
Chair
Thank you. You have said that. Thank you very much. Thank you, Mr Ellis. Sorry, we need to press on. Paul Flynn, we interrupted you during the division so could you restate your question to Mr and Mrs Herbert?
Paul Flynn
The question has largely been covered. The chief shock in this is the barbaric restraints they used on your son. Clearly there are going to be dangers to someone in those circumstances with that particular background. Have you come up with any ideas or alternatives that can be used if someone was a threat—your son was not presenting a threat of violence—and could be less dangerous? Do they exist? Is there any suggestion that they should be used rather than tying someone’s hands behind their backs?
Tony Herbert
If, after an attempt is made to de-escalate, the restraint has to take place, which could have happened in the case of James—although we thought it would not have done because of his temperament—then the next step must be under those circumstances to call an ambulance and to convey them wherever they are going by ambulance, not by police vehicle.
Deborah Coles
I would say constant vigilance and risk assessment at every stage, because the situation we are talking about here, as I said, is not isolated. The police are well aware of the dangers of restraint; they have been trained specifically on this as a result of previous deaths. In this case the coroner found that the lack of a continuous risk assessment from the point of his detention through to the transfer in the van and through to the cell, he was just ignored. I think they lost sight of the fact that he was a vulnerable human being.
Paul Flynn
I understand. One of the ways of dealing with terrible grief of this kind is to campaign, to make sure they will be no similar victims and I hope that we as a Committee can help to ensure that there will be reforms that will avoid such tragedies in the future.
Tony Herbert
We deeply hope that too.
Chair
Thank you Mr Flynn. On behalf of the whole Committee, again we are full of admiration for the work you have done. Your son died four years ago last month and you have waited three years for the inquest and now there is another IPCC investigation, as we found out from taking evidence from Marcia Rigg about her brother’s case. It is clear that you have had to ensure your campaign has shone light on a system that is in crisis and we are extremely grateful to you. We will use this case as a case study in the inquiry we are beginning today into policing and mental health so we may come back to you, but we will have before us Avon and Somerset police to hear from them what they have done. Obviously, irrespective of the IPCC investigation we will also want to hear from those witnesses. Deborah Coles, thank you for coming in. Just one final question from me: has the number of deaths in custody declined over the last few years? I have figures showing that in 2012-13 15 people died in custody, half of whom had mental health issues.
Deborah Coles
That is correct.
Chair
Is that on the decrease or on the increase?
Deborah Coles
I think it is going to be roughly about the same. My understanding is the IPCC’s most recent figures will be coming out on 15 July so we will have a better understanding. The only thing I would just add to that is around the worrying increase of the number of people who take their own lives following release from police custody, many of whom have mental health problems. I know that is possibly outside your remit but obviously they are people who have been in the custody of the police and of that group we are working on a number of cases of young people, 17, 18 year-olds. I would urge you to look at the figures with some interest.
Chair
Of that percentage, half is still roughly the same?
Deborah Coles
Yes, and my understanding is, certainly in terms of INQUEST’s current casework, I would say that of those who die, mental health features in the majority of them.
Chair
Thank you. Deborah Cole, Tony Herbert and Barbara Montgomery, thank you very much for coming.
Tony Herbert
Thank you.
Barbara Montgomery
Thank you. Oral evidence: Policing and mental health, HC 202 10 [1] Note: Please see letter from South London and Maudsley NHS Foundation Trust, 23 August 2013, para 3: https://www.whatdotheyknow.com/request/170768/response/423244/attach/3/FOI%20response%20DMery%20136FOI%20130823.pdf