It is a phrase mental health professionals are very used to hearing, “Sorry, it’s not in the public interest” [to prosecute a mental health patient with an offence]. It is a phrase the police and the Crown Prosecution Service have often used to defend the decision to take no formal criminal action against a patient who has assaulted, or stolen or damaged property, especially where the patient is an inpatient. Of course, it is often the case that they will have been quite right to do so.
I want to explore in this post whether we are currently drawing the line correctly in the sand and / or whether we are thinking correctly about the public interest in prosecuting mentally disordered offenders.
CROWN PROSECUTORS
The Code for Crown Prosecutors is a statutory document, issued by the Director of Public Prosecutions under authority granted to him by the Prosecution of Offences Act 1985. By law, Crown Prosecutors MUST have regard to its contents when reaching prosecution decisions.
Government policy on the prosecution / diversion of mentally disordered offenders has, since the 1990s, been reflected by Home Office circular 66/90. Jointly issued with the Department of Health it reflects the “the desirability of ensuring effective cooperation between agencies to ensure that the best use is made of resources and that mentally disordered offenders are not prosecuted where this is not required by public interest.”
If you have never read this document, I would strongly encourage you do to so, as 22yrs after publication it is still the current government policy document on ‘diversion’. It makes numerous references to ‘not prosecuting, except where required by public interest’ and so this has to be worthy of further consideration. It is of note, that the document does encourage police officers to think from the very beginning of their response to incidents of the potential to divert from justice: it lists the use of s136 Mental Health Act as a diversionary approach. Of course, if an incident gives rise to a situation where an arrest could be made for an offence AND / OR under s136 Mental Health Act, the Circular encourages detention under the Mental Health Act if the offence is minor.
PROS AND CONS
The Code for Crown Prosecutors (from p10) lists various considerations that would both tend in favour and against prosecution. For example, that a victim is a public servant; that the offence involved a weapon; or that prosecution is necessary to stop a repeat of the act: all are reasons to lean towards prosecution. That the offender has a serious mental health problem; that they would receive only a nominal penalty; or that the seriousness and consequences of the offence can be adequately dealt with by out-of-court disposal with which the suspect agrees to comply: all of these lean away.
It is not a question of counting these factors decide whether ‘for’ or ‘against’ has more going for them. It is also a question of balancing the value of each. Having worked on the concept of ‘diversion’ for many years, I have come to the conclusion that offences which are very minor (for example, ‘summary-only’ offences which are triable only in the Magistrate’s Court) are the only ones which should be completely set aside in favour of s136 arrests or set aside from police custody by diversion under the Mental Health Act.
What I mean by this: if an officer has attended an alleged assault, and there are no injuries to the victim despite being hit, it may be consistent with justice to arrest s136; or to take no formal action at all on the assault if a mental health problem is identified only after removal to the cells. We should remember the potential for informal and out-of-court disposals to provide a positive impact. However, had someone been injured to a standard of actual bodily harm or more, then arresting for the offence becomes important. Had the person been removed to custody after arrest, regardless of the stage at which mental disorder was first suspected, it is important that the ‘No Further Action’ option is not immediately selected.
I want to argue for greater use of police bail to determine appropriate conclusions.
Home Office Circular 66/90 argues that admission to hospital for compulsory admission for assessment or treatment (s2 or s3 of the Mental Health Act) may often by sufficient to negate the public interest in prosecution. I have two questions to ask about this, to promote consideration of whether this is always true:
- How many times are you going to do this before reviewing whether to do it again is consistent with the public interest?
- If you are going to do it, should police bail not be used to keep the person within the ‘grip’ of the justice system until the outcome of assessment / treatment is known?
RECIDIVISM
I can give examples of where offenders have been arrested and diverted on multiple occasions. My favourite example – the most extreme one I have, to ram the point home! – is a man who was arrested 55 times in 5 years and whose offending patterns represented a clear escalation of behaviour over that period. What started as minor public order offences and shoplifting became theft and actual bodily harm; which became robbery and grievous bodily harm. Although much had occurred to mitigate the risks he posed – diversion to mental health services, anti-social behaviour order, and so on – it appears no-one got close to saying “Hang on” and re-thinking the case-by-case approach to escalating risks.
How many times is arrested s136 and / or ‘diverting’ under s2 or s3 MHA going to acceptable, before we wonder whether it is working in the longer term. Indeed, how many times is diversion under s2 MHA with release to community treatment after just a few days or a week going to happen at the expense of consideration of prosecution? <<< In case of doubt, this is no criticism of the decision-makers to divert. I have genuine questions about the total knowledge of the decision-makers in both the police and mental health services when they are considering case 47 of 55. Were they aware of cases 1-46? If not, do the information systems they have access to in police custody at 4pm on a Saturday allow them to find out? These things link to my next question.
USE OF BAIL
In my view: the use of police bail before charge can be the answer to a lot of this. If someone is arrested for an offence and removed to custody, but then assessed under the MHA and in need of admission, if they are arrested for what the law calls ‘either-way’ offences or ‘indictable only’ offences, then they should NEVER be just released without further action by the police because they have been delivered into the care of mental health services under s2 or s3. They should be bailed for 30 days, under an obligation to return to the police station.
Whilst in the care of mental health services, various things will then occur or apply:
- The investigating officer will then engage with MH professionals to share / request information relevant to making the right CJ decision.
- If the patient is assessed and released to community care within days or a week or so; then they remain under a duty to return where they can be assessed for fitness to interview by the FME, the investigating officer by then having a clear understanding of the MH issues.
- If the patient is assessed and deemed to be sufficiently unwell to remain in hospital, perhaps ‘converted’ to s3 of the MHA for treatment for up to six months, then bail can either be cancelled or varied, depending on the case.
This means, that a revolving door of ‘diversion’ is avoided; risks are better understood and mitigated.
NOT IN THE PUBLIC INTEREST
In some areas, such as Greater Manchester Police, they have formalised these information sharing mechanisms into Mentally Disordered Offender panels. Meetings of a certain frequency which come together to discuss the relevant cases, rather than do it ad hoc, case by case. For me, whilst there may be little public interest in prosecuting offenders in certain circumstances, that public interest begins to increase as ongoing offending behaviour continues, or even escalates. By the time you have someone with half a dozen arrests, perhaps starting to increase in seriousness or frequency, it is already beyond the point whether prosecution should be considered to access bail and sentencing options which are only available to courts.
For example, where someone is prosecuted for an offence, even where they are considered ‘sectionable’ under s2 MHA, a Magistrate or Crown Court have powers under s35 MHA to remand to a hospital for assessment, treatment or reports. This then places the right information in front of the trial about the person’s mental health and criminal justice background to make the right decisions at court. These outcome could include a Mental Health Treatment Requirement as part of a community sentence – very under-used sentencing option – as well hospital orders or restricted hospital orders. We should also have in mind during investigations, the potential for public protection and ‘offender-management’ approaches, such as drug-testing, MAPPA and so-on.
We need to think more about the value of prosecution in the public interest, but only where the background of particular patients or the individually serious nature of an offence necessitates it is proportionate.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2012
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
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Mental Health Cop 
I’m shocked by the example you give of the chap who is essentially given licence to commit assaults without fear of adverse consequences. Would any prospective victim consider it just that the fellow escape sanctions because of health problems? I certainly wouldn’t. In a Special school we are often told that we, by working there, tacitly agree to being kicked/bitten/punched. I certainly do not. Nor do I think it compatible with my role to oversee the victimisation of other students without making a song and dance about it.
Such behaviour, whatever the causative factors, must be challenged and steps taken to eliminate (preferably) or reduce incidents.
Having health problems of whatever nature does not exonerate a citizen from the obligation not to harm others. In whose interest is it to condone assault?
I am clearly out of step because I’d opt for punitive/preventative measures regardless of health status. Simply releasing offenders to continue to commit further offences is not what most of us expect.
I see what you’re saying: I think the logic, so far as it is, goes that diversion addresses the underlying causes and aims to eliminate or reduce incidents. Whislt you’re right that it doesn’t exonerate from the obligation not to cause harm, sometimes that distinction is clouded by mental illness – although as I’ve said, not as often as is thought.
I think the extent to which anyone would agree with your comment, is probably determined by the extent to which they think diversion IS a preventative measure and I do know plenty of people who regard hospitalisation as a punishment. Detention anywhere for 28days or more, is arguably more coerced detention that some people get when charged and prosecuted. It’s for that reason, having expressed my concern and my reservation in the post itself, that I don’t see diversion for low level offences, without significant risk history as “simply releasing offenders to continue …”.
I certainly would argue, that regardless of the person’s legal liability, there should be a reaction to the offending, even if it is jus advice / warnings and the whole point of the post is to argue to greater and better consideration of when it may be appropriate to prosecute.
I would say that the sort of retardation (sorry, developmental delay) of which I have most experience is likely to be linked to a significant lack of self-control and understanding. Thus it’s very difficult to advise/reason with/appeal to sufferers. For the sake of the law-abiding majority I would regard detention as a lesser evil. It’s a utilitarian position. I don’t apologise for my views. I think they are unfashionable but I don’t think the current approach works as well to promote public confidence as it should. The balance has swung too far in favour of the rights of the individual at the expense of those who have learned to accommodate their needs and wants to the standard generally expected.
I appreciate that I am fortunate to possess sufficient resources (mental and material) to permit me to adapt myself to the prevailing norms and I hope I am compassionate towards those who struggle in that respect. In my teaching career I aim to help students develop all sorts of strategies and skills to cope with adult life but I still maintain that order can only be maintained by firm policing with judicious use of deterrence.
Firstly, it comes to public protection.
If a person is mentally deranged when committing an act then he/she is not responsible for their actions at that point.
But if the mental derangement is temporary on account of DELIBERATE EXCESSIVE drugs or DELIBERATE EXCESSIVE alcohol AND the person knew what the effect of taking these drugs or alcohol might do to his/her reasoning, then surely that person must be cautioned as to their behaviour and seek MEDICAL help for them to find out if they can be helped to cure their addictions.
This comes to a question I raised in a previous blog, and Mentalhealthcop again came back with the very pertinent questions – it depends what you mean by mental health problems – and if it includes addictions.
I remember a prominent headteacher in Cambridge saying 20 years ago on national television that drugs are the industrial armaggedon of our age.
H
This is an interesting point, but very complex. (I agree with you on the whole, though!) What about someone – and there are many – who overdoes drink/drugs as a temporary solution to their problems, or to numb them? ie: because of the MH issue, they aren’t capable of making a rational decision about intoxicants, which then exacerbate their condition and lead to crime – are they still responsible for it? How about situations where they might have committed the crime anyway – would intoxication count against the mitigating factor of their MH problems?
What about those who have been trying to get MH help as a first resort and ended up using drink or drugs in desperation as the last resort?
What about those who get arrested in the course of ‘losing it’ with MH professionals who refuse to help? (waves sheepishly…)
Gosh, mental health is complicated! Hats of to mentalhealthcop for shedding some light!
The Dept of Health have published and further endorsed Health Service Guidelines for Independent Investigation of Adverse Incidents in Mental Health services HSG(94)27 http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4113574.pdf to be specific. This guidance refers to “learning lessons” with ref to publications “An Organisation with a Memory” and “Building a Safer NHS” and underlines that is is essential we learn these lessons. BUT one of the main access criteria for investigation of homicides is often inaccessible, as implementation of Care Programme Approach (CPA) is often fundamentally flawed! Another access criteria around suicide clusters as “Possible indicators of significant system failure” is not achievable as suicide indicators have been withdrawn. Current suicide data has “historical prevalence” aka OLD!
Of course we also have guidance on “Root Cause Analysis” from the National Patient Safety Agency and services mainly pay lip service to this too because it involves training staff to use it properly http://www.nrls.npsa.nhs.uk/resources/?EntryId45=59847
Joined up thinking says if guidance is not followed (and it all appears optional anyway !) then whatever happens after this if affected by initial failure to learn lessons. If foundations are flawed as I see it, the whole building is akin to a castle in the air!