What is the role of doctors in respect of suspects with mental health and intellectual disabilities in police custody?
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Irish Journal of Psychological Medicine, page 1 of 6.
© The Author(s), 2021. Published by Cambridge University Press. This is an Open Access article, distributed under the terms of the Creative
Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction
in any medium, provided the original work is properly cited.
doi:10.1017/ipm.2021.25
PERSPECTIVE PIECE
What is the role of doctors in respect of suspects with
mental health and intellectual disabilities in police
custody?
G. Gulati1,2,* , B. D. Kelly3 , W. Cullen5, S. Kukaswadia4, A. Cusack2, S. Kilcommins2 and C. P. Dunne1
1
School of Medicine, University of Limerick, Limerick, Ireland
2
School of Law, University of Limerick, Limerick, Ireland
3
Department of Psychiatry, Trinity College Dublin, Dublin, Ireland
4
Department of Anaesthesiology, Mercy University Hospital, Cork, Ireland
5
Department of Primary Care, University College, Dublin, Ireland
People with severe mental illness and intellectual disabilities are overrepresented in the criminal justice system worldwide and this
is also the case in Ireland. Following Ireland’s ratification of the United Nations’ Convention on the Rights of People with
Disabilities in 2018, there has been an increasing emphasis on ensuring access to justice for people with disabilities as in
Article 13. For people with mental health and intellectual disabilities, this requires a multi-agency approach and a useful point
of intervention may be at the police custody stage. Medicine has a key role to play both in advocacy and in practice. We suggest
a functional approach to assessment, in practice, and list key considerations for doctors attending police custody suites. Improved
training opportunities and greater resources are needed for general practitioners and psychiatrists who attend police custody suites
to help fulfill this role.
Received 28 November 2020; Revised 27 February 2021; Accepted 09 March 2021
Key words: Forensic, intellectual disabilities, mental illness, police, Garda.
Introduction England & Wales, access to safeguards such as
Appropriate Adults in police interviews for people
People with severe mental illness and intellectual dis-
with mental illness or intellectual disabilities has
abilities are overrepresented in the criminal justice sys-
been reported as inconsistent (Gulati et al. 2020b).
tem worldwide (Bradley, 2009; Fazel & Seewald, 2012).
In the United States of America, a quarter of exonera-
This is also the case in Ireland, where the prevalence of
tions related to false confessions involved people with
severe mental illness in prisons is at least four times
intellectual disabilities (Schatz, 2018). In Ireland,
that of the general population with studies suggesting
although the situation is improving (Mulkerrins et al.
that the proportion of those with intellectual disabil-
2020), it remains the case that, at the time of writing,
ities is substantially higher (Gulati et al. 2018, 2019).
few formal and consistently used pre-trial safeguards
Following Ireland’s ratification of the United
exist (McNamara, 2020).
Nations’ Convention on the Rights of People with
The Policing and Crime Act 2017 in England and
Disabilities (UNCRPD) in 2018, there has been an
associated guidance for ss. 135 and 136 of the Mental
increasing emphasis on ensuring access to justice
Health Act 1983, which came into effect in 2017, placed
through a rights-based approach during the pre-
an onus on police constables to consult with an allied
custodial element of the criminal justice pathway
health professional prior to compulsorily removing a
(Gulati et al. 2020a, 2021). There is also a more general
person to a ‘place of safety’pursuant to the sections of
momentum to accommodate such parties in the Irish
the Mental Health Act 1983. Such enquiries may use-
criminal process (Edwards et al. 2015; Kilcommins &
fully comprise existing crisis plans that may in some
Donnelly, 2014). It is accepted internationally that people
cases avoid the need for criminal justice system involve-
with severe mental illness and intellectual disabilities
ment. The new rules also reduced detention periods
require additional safeguards as they attempt to navigate
and placed stringent limitations on circumstances
a criminal justice pathway (Clare, 2003; Gulati et al. 2020b).
whereby police stations could be used as places of
People with intellectual disabilities often face sys-
safety. This is one useful example of legislative reform
temic barriers in access to justice. For example, in
and interagency cooperation in enhancing the rights of
*Address for correspondence: G. Gulati, MD, St Joseph’s Hospital,
people with mental illness and intellectual disabilities.
Mulgrave Street, Limerick, Co Limerick, Ireland. As Ireland enters a decade when reforms to mental
(Email: gautam.gulati@hse.ie) health and criminal law (insanity) legislation are likely,2 G. Gulati et al.
measures that enhance equal access to justice require constructs disability, not as a direct consequence of a
careful consideration. person’s biomedical impairment, but rather as a product
of society’s failure to accommodate his or her individu-
ated needs. As Finkelstein (1980) explains, this social
The Irish criminal justice pathway and its interface
model of disability is premised, on a belief that ‘[o]nce
with medicine
social barriers to the reintegration of people with impair-
In an Irish context, a person facing arrest will interact ments are removed, the disability itself is eliminated’.
initially with Gardaí (members of the Irish police), While the evolution of this line of scholarship has
and thereafter more Gardaí if detained for interview. been important in the sense of highlighting the range
They will be cautioned, given a notice of rights and they of environmentally constructed barriers facing persons
will be informed about their right to access a solicitor with disabilities in society, the dichotomy between
(An Garda Síochána, 2015; Conway & Daly, 2019). In medical and social models of disability can be unhelpful
the majority of cases, a ‘typical’ suspect will encounter where it seeks to exclude medical practitioners as a whole
law enforcement officers and, less frequently, a solicitor from debate and from pathways that can fulfil the
(Lally, 2017). On fewer occasions, if there is an acute objectives of inclusion as envisioned in the UNCRPD.
concern about physical or mental health, they would Collaboration may be a more helpful approach.
be seen by a General Practitioner contacted on a call- In due course and with the passage of time, in an
out basis. Less frequently, the General Practitioner ideal criminal justice system, all professionals will be
can make a recommendation for admission under the adequately trained to identify disabilities, particularly
Mental Health Act 2001 if they believe there is a mental hidden disabilities, and consistently apply safeguards
disorder within the meaning of the Act necessitating that ensure equal access to justice. These may include
involuntary psychiatric admission (although the ulti- the provision of information in an accessible format,
mate decision falls to the admitting psychiatrist at the and practical and emotional supports for people with
approved centre). disabilities in custody. This will not rely solely on medi-
Identification of persons in custody requiring addi- cal professionals. This is a vision for the future.
tional safeguards, such as those with intellectual dis- However. we must also address the ‘here and now’.
abilities is widely accepted as challenging (Young
et al. 2013; Cusack, 2018). Police forces internationally
How can medicine contribute towards equal access
may use informal approaches and screening tools,
to justice?
although the evidence for such assessments lacks
large-scale validation studies (Douglas & Cuskelly, As systems are currently structured, doctors can play
2012; Ali & Galloway, 2016). Gardaí cannot therefore an important role in ensuring the accurate identification
be expected to identify persons with mental illness or of disabilities amongst those detained in the custody of
intellectual disabilities consistently, and especially An Garda Síochána – a first and often crucial step to the
without training in the area (Cusack, 2018). Such training criminal justice system putting the necessary safe-
has historically been tenuously resourced (McNamara, guards in place. This in itself is not without problems.
2020). It is reasonable then that without identification of Although most medical school curricula include funda-
a disability, necessary safeguards would not be offered mental psychiatry and exposure to psychiatry practice,
(Cusack, 2018; Cusack, 2020a). Similar challenges exist and many General Practitioners have additional train-
for the legal profession, and a paucity of supports in both ing in psychiatry, it is unclear what training GPs are
spheres of professional practice requires correction if pro- provided to enable effective assessment for intellectual
tection of those at risk is to be assured (Edwards et al. 2012; disability when attending police stations or prisons.
Cusack, 2020a, 2020b). There is a requirement for a member in charge to
summon a doctor under the Criminal Justice Act 1984
(Treatment of Persons in Custody of in Garda Síochána
Social discourse
Stations) Regulations 1987 (‘Custody Regulations’) in cer-
Social studies discourse over the last two decades has tain specified situations (including where a person fails to
been critical regarding the over-medicalisation of dis- respond normally to questions or appears to suffer from
ability, asserting that viewing of disability exclusively mental illness), and this is usually a general practitioner.
as a medical condition can prevent inclusion by mini- Few cases involving detained suspects get referred to
mising regard to the societal aspects of exclusion psychiatry. Helpfully, in the limited cases where such
(Edwards, 2014; McNamara, 2020). In advocating a referrals do take place – namely, where a question of
departure, then, from the traditional, pathological involuntary psychiatric admission exists (see further
‘medical model of disability’, social studies theorists below) – an opinion on fitness to be interviewed can
have advanced a ‘social model of disability’ which be requested.What is the role of doctors in police custody 3
The Republic of Ireland, compared with England A useful set of questions that Gardaí may ask of
and Wales, has a deficit with regard to pathways avail- medical practitioners, in this regard, include:
able to Gardaí in accessing early clinical advice (See
1. In the opinion of the practitioner, is the person fit for police
Table 1). Specifically, in Ireland, access to psychiatry
interview? Is the person able to understand the reasons for
in acute policing situations can be limited to those
their arrest and the police caution? Is the interview likely
requiring formal assessment for involuntary psychiatric
to harm their physical or mental state?
admission under mental health legislation, under the 2. In the opinion of the practitioner, does the person require
provisions of the Mental Health Act 2001. In contrast, the notice of rights to be provided in a more accessible
the UK has established a national model – the ‘liaison format?
and diversion operating model’ – to inform the devel- 3. In the opinion of the practitioner, does the person require
opment of liaison and diversion services regionally that an intermediary present for support in communication or
can offer advice and support to the police more consis- with emotional support through the interview process?
tently (NHS England, 2013). Access to diversion earlier
in the criminal justice pathway in Ireland is therefore For doctors, a functional approach to assessment
limited when compared to the neighbouring jurisdic- (such as in capacity assessments) could be supple-
tion (Gulati & Kelly, 2018). mented usefully by aspects of the individual’s history
Forensic Medical Examiners, or Police Surgeons, in and a mental state examination. This would start with
the UK are usually General Practitioners with addi- a presumption of capacity. For example, not everyone
tional training and experience in legal medicine. They with mental illness would be unfit for interview.
attend police stations to, for example, conduct examina- However, if someone is presenting with such acute
tions of people who are victims or suspects of sexual symptoms of mental illness that they cannot under-
offences or where custody officers require health- stand the police caution, they would likely be unfit
related advice on an individual in custody. In respect for interview. Separately, if someone has a known diag-
of people with mental health or intellectual disabilities, nosis of significant intellectual disability, this should
they may advise police on a number of matters includ- not make them unfit automatically for interview.
ing whether a person is fit to be charged and/or inter- They may require information presented in an acces-
viewed, and/or fit to be detained in police custody sible format and the presence of a responsible adult
and/or make a recommendation for an appropriate at interview. For general practitioners needing special-
adult to be present at interview. This, in the UK context, ist advice, the availability of psychiatric expertise
includes an opinion on whether ‘(a) conducting the should not be predicated on making a recommendation
interview could significantly harm the detainee’s physi- under the Mental Health Act 2001.
cal or mental state; or (b) anything the detainee says in The assessment necessary to advise the Gardaí in
the interview about their involvement in the offence respect of these matters would arguably involve addi-
about which they are being interviewed might be con- tional time and resources for doctors. Accessing such an
sidered unreliable in subsequent court proceedings opinion early, however, would provide an opportunity
because of their physical or mental state’ (Herring & to ensure provision of appropriate care and support
Stark, 2006). that reduces risk of health-related issues in custody
and all that entails and improve the forensic accuracy
of processes. There are systemic considerations that
Recommendations
need further development. The 1987 Garda Custody
In the Irish context, a series of measures – including a regulations already account for the presence of a
holistic review of current risk assessment and vulner- ‘responsible adult’ (s. 22(2)) where an individual in
ability assessment practices (Cusack, 2020c; Mulkerrins custody is a child or suspected to have an intellectual
et al. 2020) – have been undertaken by the Human disability. These need to be audited for consistency of
Rights Unit of An Garda Síochána recently with a view application. The ‘Notice of Rights’ or Form C72(s)
to assisting ‘Superintendents with the assessment of requires urgent formalisation in an easy-to read for-
the most vulnerable in the criminal justice system’ mat for people with intellectual disabilities. Such
(Government of Ireland, 2018). In parallel with the work has been done in other jurisdictions (Parsons &
implementation of any operational reforms arising Sherwood, 2016).
from these initiatives, we recommend that any medi- Access to a lawyer while detained in Garda custody
cal practitioners who are employed to assist Gardaí at is also particularly relevant for persons with a mental
the pre-trial stage of criminal proceedings, are pro- health or intellectual disability. The presence of a law-
vided with specialist training so that they can play yer is seen as a means of equalising relations between
a more active role in identifying people who may the accused and the state in the detention process.
require additional safeguards in police custody. The right of access to a lawyer in Garda custody is4
G. Gulati et al.
Table 1. Advice available to Police services from medical practitioners in the early stages of the criminal justice pathway – Comparison between Republic of Ireland with England and Wales
Stage of criminal
justice pathway Republic of Ireland England and Wales
Pre-Arrest No formal mechanism for advice to Gardaí Regional availability of Specialist Teams that work jointly with Police
based on a national model
At point of Arrest No formal mechanism for advice to Gardaí Regional availability of Specialist Teams that work jointly with Police
based on a national model
‘Place of Safety’* – Police have access to a duty Forensic Medical Examiner (General practi-
tioner) called out on a case by case basis
Persons detained using provisions of the Mental Health Act 1983 will be
seen by an approved mental health practitioner and two doctors, at
least one of whom is a psychiatrist
Police Detention Gardaí have access to a Duty Doctor (General practitioner) who can be called out on a Police have access to a duty Forensic Medical Examiner (General practi-
case by case basis to attend to physical or mental health concerns and/or prescribe tioner) called out on a case by case basis. They can assist with identify-
medication under Regulation 21 of the Custody Regulations. The duty doctor can ing people who need assessment under the Mental Health Act 1983.
advise on fitness to interview, deferral of interview if detainee is intoxicated, and Liaison and Diversion mental Health Teams exist in many areas.
complete a medical recommendation under the Mental Health Act 2001 where
necessary.
Interview Gardaí have access to a Duty Doctor (General practitioner) that can be called out on a Forensic Medical Examiners or assessing psychiatrists can advise Police
case by case basis to attend to physical or mental health concerns and/or prescribe about fitness to be interviewed and/or the need for an Appropriate
medication. They can advise on fitness to interview, deferral of interview if detainee Adult
is intoxicated. This facility is recognised in Regulation 21 of the Custody
Regulations.
No formal mechanism exists for Gardaí to seek a psychiatry opinion in respect of fit-
ness to interview. Uncommonly, if a person is seen by a psychiatrist either for
consideration under the Mental Health Act or if they are otherwise under psychiat-
ric care, an opinion on fitness to be interviewed may be available to Gardaí.
Initial presentation at Irish court diversion schemes are geographically disparate (largely Dublin based) and Liaison and Diversion mental Health Teams exist in many areas.
Court operate from a prison setting. Therefore, it is unusual to have psychiatric advice
available to a Court prior to a remand to custody.
*Police Custody Suites have previously been used as ‘places of safety’ under the Mental Health Act in England & Wales although there is a clear move away from this.What is the role of doctors in police custody 5
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