Quite a number of responses to my first blog on this subject, so I’m going to follow it up immediately, to address some queries that have been raised.
HOW SHOULD THE POLICE PROPERLY RESPOND TO ALLEGATIONS OF CRIME
1. Ensure that the complaint made is a ‘first-party’ complaint. The CJ system is victim-lead and the majority of the time, it will be necessary to have victim evidence to commence a prosecution. If complaints are made by managers, it is still necessary to deal with victims properly and get their involvement in the investigation wherever possible.
2. Preserve evidence in the normal way (victim & witness statements; CCTV / forensic evidence, if relevant). There is nothing specifically different about securing evidence for MH offences; even if the victim is a patient with MH problems, they can be interviewed by an ‘ABE’ or ‘V&I’ officer (specially trained for vulnerable victims / witnesses).
3. Collect the ‘background information’ to the patient to assist in legal decision-making. This will include legal status, clinicians opinion about prosecution, clinical barriers, history of AWOL, etc., – see below.
4. Balance the evidence and the background information and make a decision by forming a view as to whether it is best to arrest the patient immediately and remove them to police custody; or whether an interview should be arranged at a later stage, perhaps within the hospital itself or by appointment without arrest at a police station.
Several police forces have developed pro formas to secure factual information and / or opinion from clinicians to support legal-decision making.
In one area they simply ask whether “are any clinical barriers to prosecution?” and the Responsible Clinician says ‘Yes’ or ‘No’. Several forces have started using a pro forma I developed within my own force alongside a major mental health trust (with significant forensic mental health care responsibilities) and the CPS – it is a request under the Data Protection Act for answers to a series of questions which are relevant to the legal decision-making of the police and CPS regarding diversion / prosecution decisions.
The 10 questions are:
- what is the patient’s legal status under the Mental Health Act 1983 (including SCT patients);
- a headline of the psychiatric condition, if known;
- what is the RMO’s / RC’s opinion on prosecution? Are they any clinical barriers to it?
- an outline of the NHS management plan, should a prosecution not occur;
- any known previously unreported offending, relevant to the current investigation;
- any previous history of absconding from psychiatric care;
- any known failure to return following s17 MHA leave;
- any known relevant failure to comply with care plans, including any medication programme;
- is there any information concerning any intended criminal offending;
- is there any information concerning any continued threats to staff health and safety.
WHY DO IT THIS WAY?
The questions address the opinion of the clinician – they don’t have to give one, but it’s never unhelpful – whether there are any clinical barriers; it secures factual information such as current legal status under the MHA; as well as questions for which the relevance may be questioned. Why is it necessary to ask about patients going AWOL, or failing to return from leave? Well, if patients get diverted from justice instead of prosecuted, it is because the public interest is met by their engagement with mental health services. If we know they are going to abscond and fail to engage, it adds more weight to a thought about prosecution. For these reasons, the pro forma includes explanatory notes for each question asked, to ensure clinicians understand the relevance of it.
(A full version of this document can be see in the (forthcoming) article by WILSON, MURRAY, HARRIS and BROWN: Psychiatric In-patients, Violence and the Criminal Justice System.)
A final point for now – this approach secures an audit trail of what was known at the time decisions were taken. Let me explain why this is important. Once upon a time (in galaxy far, far away) one of my officers attended a psychiatric hospital to a s47 (ABH) assault. A nurse had been punched and sustained swelling and a clear red mark to the face, below the eye. It became a black eye within 24hrs. Officers asked the above questions and they were partially answered, the on-call psychiatrist arguing other material was medically confidential. This is fine – what information to disclose must be a matter for the NHS within their guidelines for confidentiality
As the man was not previously known to the police for any offending behaviour at all; it was decided that given his status under s3 MHA, the one-off nature of the incident and a lack of any other aggravating factors and the fact that there was doubt as to whether the violence was ‘clinically attributable’ that no further formal action would be taken. Officers spoke to and warned the offender.
A few days later, more senior NHS representation were made arguing, “His history of escalating violence and the premeditated nature of the offending must justify a charge, surely?” Re-examination and further disclosure completely changed the way in which the matter could be seen. It turns out he had been assaultative with staff on the wards where he had been detained for six weeks. Not only was the violence becoming more frequent, it was also becoming more serious.
It was now clear, that prosecution to prevent further offending was necessary; that action to protect staff and other patients was required. Police systems could evidence other assaults in that facility: an interview with the man, a denial of the offence and a visit to CPS later and a charge was authorised for s47 assault. He was given a serious fine after conviction following a guilty plea and staff subsequently remarked upon his changed behaviour within the ward to which he was returned.
Background information from the NHS is vital, because it provides the context within which offences can be seen. As seen here, the background can make one incident look like two different sets of circumstances which merit different criminal justice responses.