Diversion from Justice – part 1

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.”

“How?!”

“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.

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3 thoughts on “Diversion from Justice – part 1

  1. As an approved MH social worker i once assessed a custody prisoner and found him to be very deluded with very disordered patterns of thought and potentially dangerous to others. He was in clear need of psychiatric intervention and was possibly willing to accept psych hosp admission. I infomred the custody sgt that he was sectionable but he was not going to be sectioned. Why on earth not? enquired the sgt. Maybe the fact that he had waylaid a female with a false job advert, encountered her in a hidden from view situation, wore a raincoat with two deep inside pockets, one containing a 10″ knife and the other a knotted piece of rope perfect for use in strangulation suggested to me he was in need something a little more secure than the local psych unit populated by our regular revolving door depressives and schizophrenics who are more a danger to themselves than anyone else. Our local CID had been laying in wait watching the very brave victim keep what she intuitively knew was a trap and fully cooperated with the police to protect other women from a future crime.
    Perhaps this account will help others better understand your blog – MH diversion is well intentioned but it has some very strict limits especially when violence and psychopathy is concerned

  2. good explanation of why prosecution is at times the right decision too often it does seem to be declined because its not worth the effort and at other times perused for no obvious reason clearer communication on why the decision has been reached from all parties involved may be the answer.

  3. This is a well written story showing why a working knowledge of the detailed content of the Mental Health Act increases the creative possibilities for those who have to deal with the ‘mentally ill’.

    The issue, as it seems to me, is about the use of the term diversion. Diversion. This seems to be used to mean diversion from justice to the social care system. But what about the person who is being diverted. Why did they ever end up in a police station in the first place? My own experience is always that someone complains that I’m acting ‘strangely’. The police get involved because they want to check things out. They too find that I’m acting strangely so they take me to their police station to investigate further. But acting strangely is not a criminal offence. If there is a precautionary presumption on the police’s part that I might be a danger to myself or others, at this point, without evidence, they may well be presuming too much.

    And, if I have not broken the law, then it is me that is being diverted and the police who are intervening on a basis that often has nothing to do with justice. In which case, and this is the point, the police have become involved in their quasi-capacity as the agents of the social care system, not the justice system. CPN’s don’t spend their time on the beat, and the public will phone the police before their local psychiatric hospital. It follows that the police play a role which naturally extends beyond law enforcement. Since we’ve known for many years that the role of the police is a fuzzy one, to look out for the interests of ‘society,(?)’ it follows naturally that, in a mental health context, the police have to stop hiding from the mentally ill, treating us merely as, not their problem, an administrative difficulty to be diverted. If we find ourselves being held against our will in your police cells, and we haven’t committed a crime – which is normally the case – we are not a problem, we are your responsibility because you intervened. Of course, the challenge is one of escalation. I don’t respond well to being locked up against my will on some spurious grounds that have nothing to do with justice and everything to do with the normative values of the public. And when, for example, they bang my head against a wall, I can’t tell whether this is an accident or deliberate because I’m already mad and getting madder.

    It follows that I take the view that the police not only need to be conversant with the full details of the legistlaion available to them, they also need to be aware that it is us who are diverted and that we did not choose to be in their police cells. Since ‘mental illness’ is not a moral quality, the criminal dimension can neither be assumed or dismissed – but there needs to be some care that criminal (public order) charges are not invented or invoked as a pretext for managing mad people who have no criminal intent and have not committed a crime.

    The bizzarest experience I had of police intervention was when I was trying to get into a psychiatric hospital at 4 in the morning in a cab when I had no money. The cabbie didn’t like it, the security at the hospital phoned the police and I was poured into the backseat of their car upside down in cuffs. Yes, I’m sure that the offence of not paying the cabbie (civil) could have been made criminal, and I’m sure it was NFAd but, I had to spend a further 6 hours in a cell, becoming a lot iller, before I could be ‘diverted’ to where I was going all along.

    It seems to me that the police need to embrace the mentally ill through better training. Whether they like it or not they are the point of interface, the equivalent of the A+E, between the mad and the health systems which are there to care from them. Although this is asking for more, I don’t think it is asking for much, just to understand that that mad person in their care is a vulnerable human being in need of protection until they can get to a better place. What you do with any putative charges is up to you in terms of the act, and as I said at the start, I thought the example you cite was instructive.

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