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.
ERECTING BARRIERS
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.
THERAPEUTIC JURISPRUDENCE
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.
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, 2011
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 
One observation about the advisability of action to deal with violent patients id the consideration that police/CPS action might be beneficial for the other patients in the hospital.. Quite often other inmates are alarmed by the perception that bullies are allowed to avoid responsibility for their actions and are fearful when no action is seen to be taken.
Fair point, quite rightly. I could have written twice as much with other problems, benefits and more about how to overcome problems with the correct mindset, but I’m conscious my blogs are getting longer! That’s why I when I threw “Part 1” into the title and I’ll revisit this issue later to make other points!
You’re right, though: I’ve seen several officers – junior and senior – dismiss out of hand offences between patients, assuming that because a victim is a s3 patient they musn’t be a reliable witness and because the offender is likewise they wouldn’t be able to be prosecuted. Wrong.
Wrong indeed;some of the malefactors act in the knowledge that they will not be prosecuted or even admonished by any authority outside the psychiatric unit 😦
Excellent post! I run training for community workers and mental health professionals and this is just the sort of thing I often spend ages trying to explore with delegates. I try to encourage workers to think about exactly the issues you’ve written about here, and point to many examples (Clunis being the best know, even nowadays) of situations where misunderstandings, poor assumptions and a ‘hands off’ attitude on the part of police, nurses, doctors and Uncle Tom Cobley et al have led to serious repercussions.
But of course these assumptions are often based on past experience and, to quote, ‘received wisdom’ on the part of everyone involved.
You make the points from a far more authentic point of view than my own and I’ll make sure to include a link to your blog in my next courses!
Many thanks for the validation, great to hear it. I don’t think this stuff is hard, just unfamiliar. Needs everyone to be focussed on safety as the overwhelming objective.
Are inmates entitled to use reasonable force in self defence when they are assaulted by staff, and do you take any interest in reports of assault by staff on inmates? The psychiatric industry is quite an attractive career choice for those who want access to vulnerable people who may not be believed if they complain, and who can be kept quiet for fear of retribution.
Anyone is entitled to use reasonable force if they are assaulted by anyone else, to defend themselves. Of course, in the context of detention under the MHA, there are some circumstances where staff are allowed to use force lawfully and to ‘fight back’ against that would be a potential assault by the patient. (whether or not it was decided to prosecute them for it.) As in the blog, many trusts do not report the majority of violence against staff because it is recognised to be clinically attributable. I also have heard anecdotally, that some patients find trusts reluctant to report things on their behalf to the police where the allegatiosn are AGAINST NHS staff. At the end of the day, anyone can report things to the police and they have a legal obligation to investigate.
All allegations of assault, whether by staff on patients, patients on staff, patients on patients, etc., are able to be reported to the police if the victim feels that they have been criminally assaulted. If a police officer concluded that a patient used force against a nurse when the nurse was acting lawfully to keep them detained or medicate them forcibly, for example; then there would be no further action. However, it is incumbent upon the nurse and / or doctor using force to do so reasonably, lawfully and proportionately. They cannot use any more force than is reasonable in the circumstances and the Code of Practice to the MHA has things to say about force by mental health professinoals, too.
Does that help understanding?!
Violence is never acceptable and I know that sometimes there is inexcusable violence towards staff but there is also another side to this too.
Sometimes the culture on inpatient units is very aggressive towards service users. Forced medication no matter how clinically justified that is considered to be will always feel like assault to the person being held face down and injected. The culture of threat is not only physical, I’ve seen staff scare patients with a few choice words, and sometimes they really can pour petrol on flames. It’s not nice when you’re ridiculed by the charge nurse in the corridor publicly laughing with his colleagues. Now I’m not going to lash out, I’ve never thrown a punch in my life just couldn’t, but I can understand why for the next person it could be the final straw but I’m not condoning the act.
Women especially feel at risk of sexual harassment and assault. I’ve been harassed with attempts to assault me but what’s been more distressing is that this has been entertaining to staff.
Harassment by staff however is an entirely different matter. If I were seriously assaulted by a healthcare professional would I report it to the police? No. Who would believe me
I udnerstand the points you’re making, but I would say, that without people (and or their advocates) standing up to fight for rights to justice, nothing will change. If you believe you have been ignored or disbelieved by a police officer, you can ask that their decisions be reviewed and you can complain about inaction, either to the force concered (the Professional Standards department) or to the IPCC. The fact that a victim is someone who may be suffering from mental disorder does not debar them from being a competent victim who should be taken seriously.
It is well documented, that hte culture on some wards is extremely difficult and NHS staff have a duty to ensure they act legally and professionally at all times.
Proof of intent is not necessarily a requirement for a trial of some serious offences:
If a mentally unwell person is tried in the Crown Court (ie for murder, GBH, sexual assault, or even a bad ABH) there will be a two part trial. First, the judge will determine whether the Defendant is fit to plead. A person is fit to plead if they are able to (in broad terms) follow the trial process (see R v Pritchard). This usually involves evidence of a number of psychiatrists. It is the fitness at the time of the hearing that is relevant.
If the person ia fit, a normal trial is held, if not a jury hold a fact finding exercise. The jury will be asked whether the person did the act required to commit the offence – no proof of intent is required. If found, the Judge has a number of disposals available, including compulsory hospital detention with strict limitations on leave/release. In practice it will inevitably involve a movement to medium secure/forensic unit.
Of course, the defence of insanity is always available in a normal trial, though it has a very very high threshold. A person is only insane for the criminal law if they do not understand the nature or quality of the act they are doing. This is only likely to be during a very very extreme psychosis.
Whilst of course a relevant mental illness may be a strong mitigating feature, it will rarely be a total bar to prosecution.
Massively grateful to you for that contribution.
I do hope that what I’ve blogged on these points is consistent with what you’re saying because in my own head, I agree with every word of your comment? The challenge with this stuff is in getting the CPS to authorise the charge in the first place, where often there is a (premature) focus at the point of pre-charge decision-making with ‘whether we can prove the mens rea’.
It is here that the potential for mens rea and ‘intent’ or ‘recklessness’ to get conflated and confused in my view. I find that some charging lawyers misunderstand the two. I need the feedback to ensure I’m getting this right: so happy to hear more or ammend the post.
very insightful post- thank you. I still find it surprising that most people do not realise how much violence staff working in mental health / LD are exposed to. 43,000 reported physical assaults per year (that people could be bothered to record). I don’t know a single nurse working on in patient settings that hasn’t been punched, kicked slapped or bitten- I also know in the last year in one hospital there were 2 fractured cheekbones, 3 serious concussions, a broken arm and a “life changing injury’ . A major bonus of prosecution is to improve the risk assessment and appropriate placement of patients- it’s not to do with any kind of retribution. A number of referrals for placement in higher levels of security fail because of the failure to prosecute serious offences
Forcing medication on someone is never right or lawful–it violates individual sovereignty. The staff deserve every bit of grief they get. It is a deplorable industry.
Some of your statements regarding the law are simply incorrect, particularly in terms of mens rea, which is a very intricate and complicated subject.
You are right, however that police officers may also sometimes be incorrect in their understanding of it , but I doubt whether this matters in practical terms.
It seems ridiculous to arrest people suffering from serious mental health issues and already under treatment when experience, ( if not legal training), tells us that the most likely outcome is another similar Order under mental health legislation.
Obviously action is required when grave consequences have resulted from the behaviour, but in general common sense dictates that this circular process is very wasteful of everyone’s time and resources and can achieve nothing except perhaps shift more mentally ill people into prisons.
No one wants to see nhs staff assaulted or abused but I would have thought that to some extent this is a professional hazard in their chosen career which they must be aware of and that they might be reasonably expected to be able to largely avoid.
Always happy to learn – have said from the start I’m making this up as I go. Be helpful if instead of just stating things are incorrect you helped me / us out by specifying?
I’ve also heard before that argument that prosecution is ‘ridiculous’ when experience suggests a similar order under the MHA is likely: bearing in mind most offences committed are by non-forensic patients, the courts have shown themselves willing to consider other options (like fines and victim compensation) and the orders they may consider might be similar but also have the advantage of ensuring certain differences that can be helpful in managing risk in the future. This cab range from attitudes taken by Tribunals (because patients have convictions for violence or other offending), links to MAPPA after discharge and of course, restrictions orders which allow closer management of patients after (conditional) discharge. So I’m not sure I see it as straight-forwardly.
And contrary to your assertion: where this ‘Circular’ stuff has been done with some patients who offend, it very often can be transformative in setting the example that violence against healthcare staff and other vulnerable patients won’t be tolerated. This has seen significant reductions in crime in wards, greater continuity of care for patients and therefore reduced costs for agency staff and benefits to patients of more often having staff there who know them well.