I’ve mentioned that when I joined the police, there was a poster on the custody wall which contained a telephone number for the ‘diversion’ team. You rang it after you realised that your suspect had mental health problems and a psychiatric nurse would come and screen the person. They would then arrange full Mental Health Act assessment, if required.
I noticed over my first few years that whenever MHA assessment indicated that the person in custody was ‘sectionable’ under the Act, they were diverted and the criminal offence was NFAd – No Further Action. At first, this seemed fair enough – a person has offended but is very unwell and arguably, proving the offence would be difficult because of the ‘mental’ element to the offence.
I first thought about this very seriously when, as a custody sergeant, I had a similar situation but the professionals who conducted the MHA assessment said, “He’s sectionable, quite psychotic but we think you should prosecute him.” This went against the inherited thinking I was subject to at the time and highly counter-intuitive. Could you even do that? The psych nurse went on to explain:
“He’s got a big forensic history and is highly risky. The offence you’ve got him for [armed robbery – threats with a knife; mobile phone and wallet stolen] is not trivial either. You’re telling us he’s got several convictions for violence and weapons. If you prosecute him and tell the Magistrates he’s sectionable, they can remand him under Part III of the Mental Health Act, he’ll get a fuller, proper assessment and it will work out better in the end.”
“Well, the remand under Part III will ensure he still gets the treatment required, but in light of the risk he poses, there will still be a criminal processes informed by a full psychiatric report. It will properly determine whether he can be held responsible based upon the fullest information available. Even if he cannot be held responsible criminally, the court can then impose a hospital order for the protection of the public if they are satisfied he did the act.”
“Sorry – can you say that ALL again? Only more slowly, please? And then explain what it actually means, especially that ‘part III’ bit? And I’ll put the kettle on.”
I admit I didn’t believe a word of it. It sounded complicated. Would the CPS go for it?! Would it not lead to him going to the same hospital, anyway?! I took the decision to ring a psychiatrist I knew, apologising for the intrusion. “I’ve got this psych nurse in my custody office and I think he’s making it up as he goes along. What do you think?” She was adamant he was absolutely spot on and said, “Do what he says, it’s well thought through and constitutionally correct.” And so we did: the man ended up getting a s37/41 hospital order after being found unfit to stand trial.
This sounds like a wasted prosecution, doesn’t it? A big waste of criminal justice time? If the MHA assessment concluded he needed ‘sectioning’, then all that police, CPS and court time and trouble has just led to him being in the same place, receiving the same treatment by the same professionals. Right?!
Not quite – although initially, he’s in the same place getting more or less the same care by more or less the same professionals, his detention under those particular legal provisions means there is much better management of future risk, less ability to demand to be heard in front of a Mental Health Review Tribunal (for potential release). Even where a tribunal does occur, it operates to different rules because there is a slightly different focus to take greater consideration of public risk. Even when release is achieved, it will be ‘conditional’ release and subject to oversight by MAPPA – Multi Agency Public Protection Arrangements. If community care even begins to look problematic or unsuccessful, the Ministry of Justice can recall him back to the status of a s37/41 patient.
This shows why greater understanding of criminal sentencing for ‘offender-patients’ is necessary for custody sergeants and investigators: rarely, but sometimes, the more difficult and long-term view is required and it’s not just about diverting people from justice.