Leander Neckles is a freelance equalities consultant and a Board member of Equanomics-UK
The issue of the death of adults with mental health conditions in custody and/or detained under mental health provisions has long raised profound concerns. In 2015, the Equality and Human Rights Commission (EHRC) concluded a major investigation into such deaths. In March 2016, the EHRC published a progress report. This briefing overviews key recommendations from the EHRC’s 2015 report and its 2016 progress report. We also highlight the disproportionate impact of such deaths on black and minority ethnic individuals, families and communities.
Race and deaths in custody
Campaigners and organisations have long been concerned about the disproportionate number of deaths in custody of people from black and minority ethnic (BME) communities. The casework of the charity INQUEST provides evidence that these concerns are well founded and that a disproportionate number of those ‘who die in or following police custody following the use of force’ are from BME communities. INQUEST has said that it is ‘concerned that institutional racism has been a contributory factor.’ INQUEST also raises questions about accountability and justice because whilst since 1990, there have been 9 unlawful killing verdicts returned by juries at inquests into deaths involving the police and 1 unlawful killing verdict recorded by a public inquiry, none of these verdicts have as yet resulted in a successful prosecution. INQUEST has published its data on deaths in custody and it can be locatedhere. The work of Black Mental Health UK specifically addresses the issues faced by BME mental health service users, deaths in custody and whilst detained and the increasing number of BME people detained.
The investigation and associated reports published in February 2015
The EHRC’s inquiry examined ‘non-natural deaths of adults with mental health conditions in prisons, police custody and psychiatric hospitals’, the period reviewed ran from 2010 to 2013. In addition to the main report, Preventing Deaths in Detention of Adults with Mental Health Conditions and the Executive Summary, the EHRC also publishedguidance on the application of human rights case in relation to detained adults. The EHRC also published the reporton Family Listening Day, organised by INQUEST. This listening day was designed to help the EHRC gather evidence from the families of adults with mental health conditions who had died in detention.
The EHRC’s findings and recommendations published in 2015
The EHRC’s Inquiry report, published in 2015, identified that between 2010 and 2013, 367 adults with mental health conditions died of ‘nonnatural’ causes while in state detention in police cells and psychiatric wards. Another 295 adults died in prison of ‘non-natural’ causes, many of these had mental health conditions.
The EHRC found evidence of repeated basic errors which contributed to or led to these deaths in custody. In response, to improve practice, the EHRC published a range of recommendations for relevant agencies including government, regulators and inspectorates and the leaders and managers of individual institutions. The recommendations spanned four main areas:
- learning lessons and creating rigorous systems and processes;
- a stronger focus on meeting basic responsibilities to keep detainees safe;
- greater transparency and robust investigations;
- that the EHRC Human Rights Framework should be adopted and used as a practical tool in all relevant settings.
The full recommendations are provided in chapter 3 of the Inquiry Report.
The EHRC’s 2016 progress review, its updated recommendations and next steps
In March 2016, the EHRC published its progress review and updated recommendations. The review assessed whether steps have been taken to implement its 2015 recommendations (to prevent further avoidable deaths) and examined the latest available data on deaths in detention. The EHRC found that data for 2014 and 2015 showed that non-natural deaths of prisoners had continued ‘to rise year on year, reaching levels last seen in 2007, despite initiatives aimed at reducing these deaths.’ The EHRC also found that whilst for detained patients, the number of non-natural deaths had continued to decrease’ the picture in prisons was a matter of serious concern as ‘ the number of non-natural deaths has continued to increase year on year’. In terms of non natural deaths in police custody, the number of non-natural deaths was low but fluctuating.
As a consequence the EHRC has called on the Government to take concerted action and use the law to ensure change. The recommendations can be found in chapter four of the EHRC’s report – Preventing deaths in detention of adults with mental health conditions: progress review. These recommendations are replicated as appendix 1 of this briefing. It may also be helpful to note that the EHRC has commissioned further research on deaths following release from detention (see appendix 1 of this briefing).
The Race Equality Foundation is profoundly concerned about the continued rise in deaths in custody and detention and the continued rise in the number of those with mental health conditions when such deaths could be prevented. The continued disproportionate impact on BAME individuals, families and communities is a matter of additional concern. We urge the Government to fully address the EHRC’s recommendations.
Appendix: The EHRC’s recommendations and further research
1. Recommendations from the EHRC’s Inquiry published in 2015 that still require implementation
- There should be a statutory obligation on institutions in the three settings to respond to recommendations from investigations and inspections by publishing an action plan, as this will improve transparency and accountability and will help to ensure that recommendations for improvements are implemented. This learning should be a key area of work for the IAP.
- Segregation should not be used for prisoners with mental health conditions, unless there is an exceptional circumstance, which is clearly defined and understood by prison staff.
- Article 2 (the Right to Life) should be central to the development of policies, procedures and investigations into deaths of people in the care of the state. The Equality and Human Rights Commission’s (2015) Article 2 Framework should be used to support this.
- Families should be fully involved in the investigations process and given relevant information and support throughout and following the outcome. This will help to ensure that lessons can be learned to prevent future deaths.
New recommendations for preventing deaths in detention of adults with mental health conditions 
2. All settings
- The impact of the statutory duty of candour that applies to NHS bodies in England should be formally evaluated by the Government in 2016 so that any recommended improvements can be made and shared across other public service functions, including the prison and police settings.
3. Psychiatric hospitals
- There should be a full Government investigation into whether independent investigations are in fact being carried out into non-natural deaths of detained patients and whether they are of sufficient quality. The work the CQC and MONITOR are undertaking following the Mazars report into Southern Health NHS Foundation Trust should identify whether national learning from investigations into unexpected deaths of detained patients is taking place.
- The remit of the independent patient safety body Healthcare Safety Investigation Branch (HSIB) should include mental health and incorporate an oversight function of independent investigations into non-natural deaths of detained patients. The Government should also consider whether any other groups with protected characteristics, such as learning disabilities, would benefit from HSIB having specific accountabilities in relation to them.
- The outcome of the February 2016 seminar on data collection (hosted by the Equality and Human Rights Commission) should be agreement on the responsibilities of each key organisation in this area and an action plan in taking this forward.
- Urgent changes need to be put in place by the Government to address the root causes leading to the high levels of non-natural deaths in prisons, including greater access to specialist mental healthcare.
- Data on the use of restraint should be routinely published in the prison setting by the Ministry of Justice to aid transparency and accountability.
- Data on the number of prisoners with mental health conditions should be collated and this should be routinely published.
- The changes being made through the review of the Assessment, Care in Custody and Teamwork (ACCT) process used to manage and support prisoners who are at risk of suicide or self-harm, including those to the guidance for staff on risks and triggers, should be the right ones to ensure they are effective. Training should be provided to staff to ensure they know how to use the process.
- Any changes being put in place for the commissioning of healthcare in police custody must incorporate the planned improvements that were due to be made by NHS England.
6. Additional research by the EHRC
- During the course of the EHRC’s inquiry some respondents raised concerns about the number of people dying on release from prison or police custody.
- The EHRC has since contracted researchers from Sheffield Hallam University to review the available evidence. The IPCC provided reports for the research. The EHRC aims to publish a detailed report outlining its research findings in Spring 2016.