I’ve been in loads of rooms with hundreds of police officers talking about mental health. If you ask them which mental health related issues make them feel as if they’re left struggling, they will probably say “s136 MHA and getting into a Place of Safety.” If they don’t say that, they’ll say “AWOL patients.” Ask them which issues the NHS feel let down by the police and you’ll hear tumbleweed. The police are perfect, obviously!? …
My colleagues in the NHS have said to me, that they feel they get an extremely tough deal when they are assaulted at work. Most police officers are stunned to learn that over two-thirds of violence against the NHS is directed towards mental health professionals. My officers arrested a man this evening for punching a nurse twice to the ribs and whilst it was obvious he was mentally ill, it was equally obvious after a short discussion with those in charge of his care that this fact was not at all relevant to the assault. When I go to work tomorrow, I look forward to hearing that he was charged with the offence.
We were also at the hospital yesterday because of a violent patient, albeit acutely unwell and highly unlikely to be prosecuted because the nature of his condition, but four of my officers running through the door was just enough to make him realise that if he wanted to fight the world he could expect a response from people who know how to react accordingly. He calmed down almost immediately and no-one got touched, let alone hurt.
But when it comes to inpatient violence against staff, the police have often said some extremely incorrect and foolish things:
1. “We can’t arrest someone who’s been detained under the Mental Health Act.”
2. “Well, if he’s mentally ill, he lacks the capacity to form the mens rea [the guilty mind] to be held responsible for the offence in law.”
3. “Unless your Doctor gives me a statement of evidence stating that this man had capacity to form the intent, I’m not arresting him.”
Nonsense, all of them. However, it is received wisdom in many areas.
The reason these barriers have been erected are not always illegitimate: if someone is detained under the Mental Health Act, it may well be that they cannot understand the nature and the quality of the acts they do; but it may not! It is true, that to prove some offences in a criminal court, a specific type or level of intent needs to be proved beyond all doubt. For example in an attempted murder investigation, it must be shown that the defendant was trying to kill the victim, not just trying to hurt them, even if seriously. If someone is extremely unwell, delusional and hallucinating, perhaps highly medicated, it may be that this level of intent cannot be shown. However, if an offence is very serious, it may not represent a total barrier to a charge, for sexual assault or serious violence, for example. We should remember, only criminal courts can impose certain orders under the MHA for patients who are deemed unfit to plead or unfit to stand trial: the law envisages their prosecution some cases.
Big message – each case should be decided upon it’s individual merits.
Also, a really practical point: if a person is arrested from a psychiatric unit where they are detained under the MHA and taken to police custody; and if the investigation for whatever reason cannot immediately result in a charge and the person is bailed for further enquiries or psychiatric assessment or legal advice; I have known psychiatric units refuse to take patients back. So you then get a very irrate custody officer with a sectioned mental health act patient in their cells with no clear legal authority to keep them there and no ability to return them. Hospitals need to realise that arrests are part of the criminal investigation processes subject to certain laws and not simply a mechanism to transfer responsibility from one organisation to the next because the first has declared UDI that it cannot cope. Hospitals retain a duty of care to the patient.
The benefits of prosecution must be considered. Clinicians have argued that a failure to prosecute patients for criminal acts on psychiatric wards, breeds an environment of danger and fear which is not therapeutically conducive, including to other patients who may be the victims – it is not just NHS staff who are attacked or harassed. Prosecution can ensure that patients are forced to accept the social consequences of their decisions, as other members of society are. It helps define behavioural boundaries and I will tell a true story in the future of one such case where I will argue that prosecution was in the patient’s interests to prevent him seriously offending and destroying his life.
To realise potential benefits, however, there are some serious hurdles to prosecution which must be cleared. The Code for Crown Prosecutors – the guide to prosecution decisions for CPS Lawyers – is a statutory document and the Prosecution of Offences Act 1985 obliges prosecutors to have regard to its contents when reaching charging decisions. It states very clearly that to prosecute, it must be more likely than not that a court, properly directed in accordance with law, will find beyond all reasonable doubt that the defendant did the act accused – the actus reus – and that they had the requisite guilty mind – the mens rea. It also states that prosecution must be in the public interest and that a suspect suffering from significant mental ill-health is a significant away from it being in the public interest to prosecute.
However, this must be balanced against other factors: where a victim serves the public, where prosecution is necessary to prevent repeated offending, where the type of offence is overly prevalent in that location, where weapons were involved, etc., are all factors which may push against the mental ill health of a suspect. The police and CPS should start from a neutral position and weigh each case on its merits and the CPS has produced guidance on the prosecution of mentally disordered offenders.
Prosecuting psychiatric inpatients should be considered where this may positively influence the type of Mental Health Act detention which governs a patient’s care. I have been involved in the decision to investigate many s3 MHA patients who have committed acts of serious and sexual violence against NHS staff and battled through the information sharing problems – a blog in its own right! – as well some CPS lawyers who did not understand the benefits of a prosecution and the positive opportunities it represents. CPS are currently undertaking a national programme of training for their lawyers on mental health awareness, the Mental Health Act and prosecution decision-making. Such patients, if convicted can be made subject to a s37 hospital order, possibly ‘restricted’ under s41 of the Mental Health Act if the defendant is judged to pose a ‘risk of serious harm to the public’, which then alters the framework of their care.
It also ensures for serious violent and sexual offenders, that when released they are subject to MAPPA provisions which will ensure a robust, statutory framework to mitigate against future re-offending. It also ensures that when released from MHA inpatient care, it is subject to conditional discharge and recall under s42 MHA if Community Forensic Teams identify the emergence of risks, following failures to adhere to conditions of release. This could include residence, outpatient appointments or medication compliance, for example.
Suffice to say, justice does not have to stop at the hospital door: nurses, doctors and other NHS staff are entitled to state protection and redress when they are assaulted at work and the fact that one major mental health trust in my area reports just 16% of the violence they suffer to my police force shows that NHS staff do acknowledge occasions where someone has been assaultative because of their condition and that some minor matters from patients will not be in the public interest. Even then, it doesn’t mean a uniformed officer giving a stern, however informal warning to patients can not have a very positive effect on ward safety. We need to broaden our thinking.
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Since this blog began, the law of England and Wales, including the Codes of Practice to the Mental Health Act 1983 have been updated, several times. Always check the date of publication, displayed below; and cross-reference to current legislation and guidance when using this material as a reference guide.