WMP

Criminal Offences under the Mental Health Act

custody sgtObviously, we think principally of the Mental Health Act in terms of it providing a legal framework for healthcare.  We don’t immediately think about people committing offences contrary to the Mental Health Act.  There are only a few, all listed towards the end of the Act but they have come in useful for me on more than a few occasions, when trying to bring policing situations to a safe or swift conclusion.

As I have just had cause to direct that some threats of potential investigation and arrest be made for possible offences under the Mental Health Act, it suddenly occurred to me that I have not really covered these things in a single blog post.

OFFENCES UNDER THE MENTAL HEALTH ACT

There are four specific offences under the Mental Health Act and I’ve hyperlinked each of them below, so you can read the full wording of each, if you wish.  Some relate to offences which could be committed by professionals, for the protection of patients and the ethical administration of the Mental Health Act

  • mentalhealth_picSection 126 the offences of forgery: this means forging documents which are used to administer the Act itself.  So things like ‘section’ papers – applications or medical recommendations – where signatures are forged.  It is an offence to knowingly possess them as well as to forge them yourself.  Anyone who deliberately writes false information on them with the intention of deceiving others, is guilty, also.
  • Section 127 the offence of wilful neglect of patients:  this means deliberate neglect of patient’s welfare and dignity.  This offence was used to prosecute staff in the Winterbourne View scandal and it covers the full spectrum of neglect.
  • Section 128 the offence of assisting someone to go AWOL or of harbouring them whilst AWOL:  this would cover helping someone to leave hospital when they are detained under the MHA and it would include allowing them to stay with you or supplying with assistance of various kinds, if you know they are AWOL under the Act.  Doing something to prevent the person be re-detained and returned to hospital, is also an offence.
  • Section 129 the offence of obstruction:  this covers the active obstruction of those authorised to act by the Mental Health Act for hte purpose of functions under the Act.  So it will mainly cover AMHPs and DRs do various inspections, interviews or assessments in relation to the decisions they must take.  It is not only an offence to obstruct them in their work, but also to fail to withdraw from a situation when properly instructed.

By virtue of these things being offences, police officers and others have a legal right to use force to prevent them occurring and the police may arrest people who commit such offences, subject to the normal statutory arrest test.  Police officers would also have a right to seize documents which they reasonably believe to be forged, as evidence of an offence.  In the context of section 129, the police could forcibly prevent anyone from obstructing an AMHP who is engaged in statutory functions of inspecting a premises, interviewing or assessing someone under the Act, whether under s136 of for potential admission under Part II of the Act.

FRONTLINE KNOWLEDGE

Custody1I recently asked that family members of a missing mental health patient be warned about harbouring and assisting.  Although not quite at the stage where evidence existed to justify arrest, the police had formed a view during a missing patient enquiry that the man’s family were less than cooperative and may be supplying him with money to stay in hotels and evade re-detention.  To encourage them not to do so, warnings were given to his sister, brother and father.  It is quite possible that someone could be prosecuted for these offences and in court could receive a fairly substantial fine or a period of imprisonment up to a maximum of two years.

I suggest frontline 999 response officers or neighbourhood policing officers who find themselves supporting MHA assessments and searching for AWOL patients need to know in general terms about sections 127, 128 and 129.  Not least, we need to take seriously reports of neglect about detained patients made by patients themselves or by their families; we also need to know when families / carers may be venturing into assisting / harbouring AWOL patients and when we can use s129 to justify the removal or arrest of obstructive people during s136 or MHA assessments.

Although a different Act of Parliament, it is also worth knowing about the offence under s44 of the Mental Capacity Act 2005 –  the offence of wilful neglect of someone who lacks capacity.  Again, this was used to prosecute some professionals in the Winterbourne View investigation, in Bristol.

All of this adds to a police officer’s ability to safely control those mental health events into which we are drawn, or potentially bring them to swifter, safer conclusions.

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BadgeThe Mental Health Cop blog won

– the Mind 2012 Digital Media Award, in memory and in honour of Mark Hanson.
The Awards celebrate the “best portrayals of and reporting on mental health in the media.”
– a World of Mentalists 2012 #TWIMAward for the best in mental health blogs.
It was described as “a unique mix of professional resource, help for people using services and polemic.”

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4 thoughts on “Criminal Offences under the Mental Health Act

  1. The law does not go far enough to protect the patients. It may be that these patients are of no risk to society but because of lack of suitable care in the community can be kept for years and years on end under a section. This is a waste of money to the public in light of all the A&Es closing down.

    It is disgusting that staff can pin a patient down and force them to take a drug for instance when that drug is giving them terrible side effects. This is allowed by law – what kind of law is this!

    The staff can exclude you as a mother, they can keep the phone charging in the office, speak to the person in their care who may not be happy there and surround that person in controlling their decisions such as when someone is on a lot of drugs, staff can say that the person cared for no longer wants contact with the mother and particularly so when the mother has been very concerned about the care and the so called “medication”. If the team get the person cared for to go along and come out and say things – for instance “do you really want your mother to be the nearest relative”. This is the kind of thing that goes on in the team and that person is afraid to go against the team. For instance – a consultant psychiatrist can make a patient go along with their wishes once they are drugged up on a highly sedatory drug such as Clozapine and I have heard that this drug can make someone incapable of thinking clearly at times. The consultant psychiatrist can turn someone in their care against the mother if the mother is outspoken on the care. The consultant psychiatrist can delay the legal process of a Tribunal saying the person cared for has not come to a decision yet about the independent doctor. The consultant psychiatrist and team can refuse the file to the mother’s solicitor for instance meaning that a Manager’s Hearing does not go ahead.

    The consultant psychiatrist can replace the solicitors by persuading the person cared for along with the advocates who do not always act in an independent manner like they should to go along with the advice of the team. The team can recommend that it is best to change the solicitor to one recommended by them and then the tribunal fails for them. Solicitors are supposed to be independent but I have seen over familiarity between a solicitor and the team . The team can keep quiet about a Tribunal when they know all the details of when it is to take place and then not advise the mother or her solicitors or the independent doctor, making a fair trial impossible and keeping that person in for another 6 months and more. A patient can be kept for years and it is no wonder why when a team can manipulate every aspect of the legal procedure and get away it. The worst thing of all is to hear the person you care for say “it is very strict here – I have to go along with the team and do what they say. I have to watch my reputation” – it is not nice to read and hear what a team says about you as a mother which can amount to defamation of character and they just get away with it. The person cared for is weakened by drugs and can be totally domineered and brainwashed by a team who stick together like glue. Similar to a religious cult. When something goes wrong that team will cover things up. As for drugging – a team does not always stick to the recommended dosage and on top of this can push other drugs to calm someone down who may be distressed at being in a “prison” – in fact I have heard some patients beg to go to prison rather than be in hospital and perhaps this is because they are treated more fairly.

    I have watched some psychiatrists smile smugly at meetings and the same goes for the social workers.

    They are a law unto themselves. How on earth do you propose to get such reports as if say a mother complains then the whole team stick together – what hope does a parent/carer have let alone a patient as no one cares to listen – the complaints procedures are biased and inadequate and all too often come back with “satisfactory”. For instance in the complaints procedure when things have gone drastically wrong and terrible things have happened, you go through the complaints procedure and then both the Local Government Ombudsman and PHSO shut down your case and then the CQC write back to say they are satisfied.

    How do you think it feels to find out as the Nearest Relative that the Tribunal has already been arranged behind your back and the entire team know about it and noone from social services had returned calls etc and out of the entire team not one picked the phone up to advise that it had been arranged. This is the Tribunal that as a Nearest Relative you can call as the other one failed and again the team did not notify everyone in the family. If it had not come to light that the Tribunal was arranged for Monday this would have gone ahead without the Nearest Relative, the legal representative or the independent doctor – a complete waste of public money when something like this is drawn up and unfair to the patient.

    The other thing is when the team gang up and they try to force you to agree to a section 3 they can bully and harrass you all day long in front of work colleagues to their hearts content. Thenl they can then issue court papers and go over your head like they did forcing you to go along with their orders without giving enough time to get a solicitor in place – I am talking aout 1 day’s notice of the team’s intended replacement of me as a mother because they think I am unfit. I have all the legal papers now and the reason they play on this is all about the enforced drugging and give false accusations that the person cared for is being told by the mother to stop taking the drugs or encouraged. The mother may well be against the drugs because of the long term health implications but the mother knows only too well the dangers of these drugs as especially listening all day long to the distressed phone calls of the person cared for at a so called renowned leading hospital where they had taken her off a huge amount of drugs just to ply Clozapine and Metformine.

    This is care in the UK for you and I am in touch with other mothers who have not been as outspoken as I have and yet have been treated terribly as well.

    There is no way as a mother I can do anything about the drugs but wish with all my heart I lived in Finland where in one area, Tornio they have outstanding care and when all else has failed like it has here in the UK I think that something should be done about it and proper assessments/humane care, open dialogue – inclusion rather than exclusion but the places I would like as decent care have not been set up and probably because of red tape! I am not alone in wanting holistic care with the minimal of drugs but that does not mean to say I would take my daughter off the drugs because I am not qualified and this is the cruel part about it that even at a worldwide renowned hospital they have no idea how to do things right.

    When a patient is taken off 150 mg of Seroquel and this is mixed with Olanzapine and done in 2 weeks this is not good practise and can make someone’s behaviour adverse and then it is unfair to impose any section as this was deliberately caused in order that Clozapine can be forced upon a patient who made it clear from the start this is not what that person wanted. Is it legal to give a drug off label that has not been tried and tested for weight loss and has been approved for Diabetes instead.

    Where is the law to protect the patients when professionals can use their powers and can get away with brainwashing and manipulation – I have been so shocked by what I have seen and heard from others alike. Unless police are on the ward to keep an eye on the staff there will be abuse to vulnerable patients in my opinion.

  2. Thanks for writing this, it’s really important to share information about this – both to help people assert their legal rights when they or a family member has been detained, but also to be aware of the risks of supporting someone who had absconded. Having absconded a few times from hospital in the past, myself, I didn’t realise that anyone supporting me risked conviction.

    With that in mind, though, I was wondering how this fitted with the growing critique of current psychiatric assessment, diagnosis and treatment.

    For example, imagine someone is diagnosed with schizophrenia and told they need to take medication for it, refuses and is eventually sectioned to enable medication to be given by force. This person is obviously struggling, but with a history of trauma finds hospitals and coercive environments extremely triggering and its making them feel worse. Imagine they dot believe they have schizophrenia, but instead feel their trauma has led to their experiences and they have been getting therapy to deal with that. They feel unheard, finding that people are very worried about some of the voices they hear and how they feel that they’re being watched by cameras. Eventually, they manage to run off from the hospital and head home. At home, their partner listens to them and recognises how the approach at the hospital is making things worse. They beg their partner to let them stay home and not to make them return to the hospital. When their partner promises the person calms down and starts to use some of the strategies that help them cope. They decide to call their therapist and find another way through this. An hour later, the hospital calls … and then the police … If you we’re the partner, what would you do in their situation?

    Given the critiques around the diagnosis of schizophrenia, and the medication used to treat it, surely there’s a human rights issue crucial to the mental health act. If, in the future, I was deemed sectionable and my husband helped me stay out of hospital because he understands my wishes and recognises I can be better supported outside of hospital – it seems wholly wrong that his actions in my best interests would be criminalised. Also, by association, me on the run would be comparable to someone escaping from prison. When did mental health support get so wonky?

  3. There should be more therapeutic communities such as Root and Branch and Chy Sawel but these have yet to be set up as an alternative and choice to the shocking acute wards. I can quite understand why a patient does not want to be brought onto acute wards. It is disgusting that the law does not protect the patients. Staff can get away with standing in the way of the release of a patient on a section even if they are of no risk. For instance my daughter is at Cambian, miles away from home. The independent doctor was visiting this week prior to the Tribunal which I as Nearest Relative can call and that is why I went down to see her this week as I did not wish for the team to stand in the way of my daughter having a fair tribunal. They had already replaced her former solicitors with a Welsh firm advising her this was best. What is more the team’s psychiatrist saw my daughter on her own without solicitor or advocate present to ask if she really wanted me to be the Nearest Relative. My daughter admitted to me she feels under pressure by the team as it is so strict there and I think it is cruel what is going on behind closed doors. I sat inside their waiting room waiting for the independent doctor to arrive. Last time the Tribunal was called off by the Bethlem as my daughter did not want to go through with it. All she did was say that she hated meetings and at that the solicitor recommended by the hospital said “well you do not have to go through with it now if you do not want to” – she was not of a risk as she had been stabilised by Olanzapine but they had in mind all the time to push Clozapine.

    I have just had the shocking test results in I did privately through Bio Lab and this will dispute what the Bethlem and Cambian think is best – these test results are being analysed right now and as there are so many different diagnoses how can I accept these diagnoses without a proper assessment and this was not given at the Bethlem as promised by Prof Murray. Therefore I have had to turn to Dr Walsh.

    In respect of the previous post I feel sorry for the patients whose human rights are totally abused by the shocking care in the UK and laws that need to be changed.

    Social Services and the medical teams think they are above the law. If I had not found out about the Tribunal arranged behind my back this week and that of my solicitor as well as the independent doctor then this would have gone ahead on Monday.

    Then the team play on Section 17 leave as they had refused to allow my daughter to go up the road and buy some chocolates for another patient yet I 2 nights had been agreed in the first place. It is so harmful for my daughter firstly to be discouraged by the team as regards contact. My daughter had confessed to her sister that it was not true that she wanted supervised phone calls. The fact is the team do not like me and have wanted to displace me time and time again. They use the excuse that I am encouraging her to stop taking the drugs yet this is not true. Thank God I found out about this and my solicitor cancelled the Tribunal arranged for Monday – it is a disgrace that this sort of thing goes on and that the entire team can get away with this when they all knew about the Tribunal without giving my daughter a fair trial.

    I have therefore contacted Mr Norman Lamb to personally look into my case and may also contact Mr Behan who I met at the Carers UK Conference. Both Mr Lamb and Mr Behan spoke of changes in the care system to ensure that there is inclusion of families but they have a mammoth task to educate the teams as what I have described here is commonplace. it is not just the patients human rights being abused here but that of families. What the team are doing is damaging to the family, in particular to myself and my daughter who is terrified to say no to the team. The team are playing on is capacity but there are times when a patient may have just taken the drugs and may lack capacity. There is no doubt they want to continue with every trick in the book to get rid of me as the mother. It is not enough for them that my daughter has been moved miles away – they want to take my daughter away and control her completely keeping her on a neverending section. I am not alone here as I have been contacted by other mothers, some of whom have not been outspoken like I have. It must be costing a fortune to keep her in hospital and how long is this for? If only there was better care in the community but some patients need more one to one care having been in hospital for a long time and this is not provided properly.

    How can you trust the diagnosis when there are so many in the file – many people under the mental health have been abused and are given the drugs that can themselves cause psychosis even when on them. To force a patient to take the drugs even if they are experiencing Akathisia or serious side effects is abuse of human rights as I see it.

    Even though I am not happy my daughter has been put on Clozapine without a proper assessment I have never told her to stop taking these drugs. Dr Ann Blake Tracy told me the only way is very slow withdrawal over a period of up to 2 years and I am not a doctor and would not attempt to do this myself so it is a lie that the team use this as an excuse to keep trying to get rid of me as the nearest relative.

    I just wish there were proper decent facilities and humane care in the UK but sadly there is NOTHING for the vast majority and this is why I would like Chy Sawel Root and Branch set up – therapeutic communities may work for some people where all else has failed.

  4. I am a civil liberties advocate in Victoria, British Columbia Canada. Police and or psychiatric medical staff who deny citizens their basic rights can cause pro-posed patients and their families and all their friends/ acquaintances to mistrust police and medical staff as well as the whole psychiatric profession.

    If an officer is acting in Bad Faith or medical staff are Acting in Bad Faith, then how could a capable detainee possibly defend themselves against misinformation provided to police from a caller Acting in Bad Faith to gain control of the detainee’s assets or to impose control over that person for personal gain?

    Imagine this scenario; you may be a cop or psychiatric medical professional, you travel to a communist country, you are separated from your family or friends, local police mistake you for another person who has the same name as yourself, police arrest you under their Mental Health Act, you have no right to contact a lawyer, or family, or friends, and you can’t call any political representative. You refuse to remove your clothes when asked, you refuse to speak with a psychiatrist until you get your phone call to lawyer; to let others know where you are and where you’re being detained and by whom, and to have the validity of their detention checked to ensure it’s in fact lawful, and get released if it’s not lawful.

    Medical staff believe your refusal to co-operate is part of a suggested mental disability which does not allow you to make sound capable decisions. You are then ordered out of your clothes, you refuse, then bring in security so you comply, then a nurse walks in with a syringe in order to medicate you, you refuse to be injected with medication, they tell you security will flip you over and you will be forcibly injected against your free will. Now how would you feel. Would you yourself go along with being injected, would you trust authorities in a communist country? I’d like to see how professional police and psychiatric professionals would respond, because things like this do happen, not only in communist countries but democratic countries as well.

    Police in British Columbia Canada are not required by law to provide medical staff with a written objective report. Many times police in BC provide only a verbal subjective report to medical staff. We have compared police notes from their (police in house records) against information police provided verbally to medical staff, we were shocked at house miscommunications took place.

    You mentioned Section 126, this could be why police fail to provide any written report to medical staff. When police provide misinformation in order to have someone committed unlawfully, then it’s the officer who could be charged and be hauled in front of a judge.

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