How Do You Hold Mentally Ill Offenders Accountable?

The issue of how to manage offenders with mental disorders is an international issue – this blog is prompted by an article from NPR News in Washington DC, “How do you hold mentally ill offenders accountable?“, but I’m mindful of cases such as that of Garry David in Australia as well as an debates in the UK around offenders like Ian Brady and Peter Sutcliffe.  (It is worth listening to the NPR radio piece which is on their webpage).

The interface between competing paradigms such as law and psychiatry – if it even exists except by default and if it works at all – is seen through the prism of these cases. The NPR article highlights the California ‘Mentally Disordered Offender‘ law.  This provision ensures that anyone in prison who is suffering from a serious mental disorder who assaults staff, will serve any ‘parole’ in psychiatric hospital.  The debate within California appears to be whether the MDO law should be extended to just some psychiatric patients who assault mental health staff within state hospitals – ensuring that any assault committed by someone who is not ‘so mentally compromised’ [as to be incapable of prosecution] should be treated as a felony and lead to longer detention in hospital.  (Felony is the equivalent to an indictable offence in the UK, something more serious which is triable in the Crown Court.)

We have seen that this debate rages on here in the UK:  in 2010/11 around 68% of offences of violence against NHS staff were committed against mental health professionals.  Those of us who have spent our professional lives pulling drunks and other idiots out of A&E for acts of opprobrium and buffoonery against NHS staff are usually surprised to learn that in terms of the number of assaults suffered, A&E comes a poor second to mental health units.  I would even go further and say that in my experience, the offences against NHS staff in mental health units are often more serious, as well as being more numerous.

The question posed in the NPR piece seems to assume that we should hold mentally ill offenders accountable for assaultative behaviour, whilst stating that this should be without punishing them for being ill.  So how do you do that?!  Almost sounds like a perfectly unsquareable circle.

Firstly, it’s fair enough of me to observe that not all psychiatrists and lawyers think that this is true.  I have personally discussed these issues with a psychiatrists, one of whom stunned me by stating, “We should never formally prosecute patients for assaulting staff.”  One might assume his wife is not a mental health nurse, but he did put the argument that patient’s lives are already wracked with stigma and difficulty without the criminal justice system piling on the pressure.  Criminal convictions make it even harder to rehabilitate, recover and reintegrate into society after release from inpatient psychiatric care.  After all, they make it harder to get a job and what is the one thing organisations such as NACRO point out is often the best thing you could do for a recovering psychiatric patient?  Secure meaningful, sustainable employment.

I have heard lawyers (some CPS) dismiss the utility of prosecution by simply asking, “What’s the point?”  Again, probably not the father of a junior psychiatrist on the end of a good kicking which broke three ribs and a cheek bone.  <<< Real example.

In the meanwhile, how do you hold mentally ill offenders accountable?  Well, whether or not the criminal justice system has a formal role to play through prosecution into criminal courts; whether individual legal jurisdictions think ‘MDO laws’ are a way forward; whether legal reform is the answer – it seems that doing nothing about violence against staff is not an option and the ‘doing something’ option is available now.

Expecting any professionals to set aside what are confidence-shattering, unaddressed offences against them personally is something that police officers certainly don’t accept – even less so when life-altering injury is involved.  Why should mental health professionals and other psychiatric patients be less secure than others in society – why should “justice stop at the hospital gate?”

The role of police here can be key: even where offending is low-level or a ‘one-off’.  We already know that mental health professionals do not report offences to the police which they already believe are inappropriate for police or criminal justice involvement – one trust in my area reports just 16% of it’s violence incidents to the police – so we know this is not about mass criminalisation by the NHS.  When they do report offences, they want to see a reaction and I believe that they’re entitled to get one.  We know that it can have a very positive effect on ward safety, when properly done.  This can and should involve all scales of reaction, from low level advice, encouragement, warnings, through to restorative justice, cautions and fixed penalty tickets as well as prosecution.  I have blogged about this previously.  For me, the important thing is that when healthcare professionals seek police or criminal justice involvement, nothing fails to secure a reaction.

The Australian and Californian examples show that ultimately, violent offenders with mental disorders who are incarcerated by law have to be somewhere and they are often the most demanding of prisoner-patients in our societies with the most challenging, complex needs.  Whilst the debate about prison OR hospital is a very important one, it may not be as important as determining as a society how we really want the interface to work and then design it properly based upon evidence from good quality research.

Until then, we’re improvising around the personal politics of those who hold influence.


6 thoughts on “How Do You Hold Mentally Ill Offenders Accountable?

  1. I’ve only just seen this post – but think it’s an important topic that should be debated widely.

    I’m aware of a number of homicide cases where the previous lack of action by Police over serious violence by mentally disordered offenders has been interpreted (by MH workers) to mean that the violence wasn’t really that bad and didn’t require attention.

    One of the key risk indicators for future violence, is a history of previous violence. If a patient’s violence is not properly recorded and passed on, (as arguably it should be after a police intervention) then the real potential for violence is inadequately assessed and recognised – which can be dangerous for the patient, the public and NHS staff alike.

    Secondly, I’ve seen many cases where MDO’s only receive the care they need once they have committed some terrible act. Forensic MH services are usually much better resourced than other areas, so the sooner violent patients get to forensic services and the actual treatment they need, so much the better – and it may just prevent them from committing more serious crimes in the future.

    Thirdly, I think the best way to tackle Stigma, is to tackle the violence, (rather than minimize it or pretend it doesn’t exist) but that’s probably an argument for a different day.

    I’ve written about stats on violence against NHS Staff here. (See Nov 10 2011)

    1. Totally agree with you. Of course, the fact that inpatient forensic services cost five times what a prison costs and that fact that we’ve stacked the ‘risk-deck’ by failing to ensure a proper approach to any diversion which is thought necessary – see two previous posts via the BLOG INDEX on Diversion from Justice – means we’re building up the potential for apparently ‘unforseeable’ risks. Just my personal view.

      If you’ve ever read the book Black Swan by Nassim Nicholas Taleb; I think the whole ‘Black Swan Theory’ of approaches to risk, are applicable to policing and mental illness, especially with regard to the ‘diversion’ debate. Worth a read. Certainly worth far more debate.

  2. I think there is a real problem when some MH professionals and lobbyists continually minimise the extent and reality of patient violence – and are then completely surprised when it does happen.

    Inquiry after inquiry repeatedly point up very similar problems in basic care (care planning, risk assessments, record keeping, listening to family members, dealing with drug problems, monitoring compliance with medication etc etc) which either led to the perpetrator being lost in the system (and the true extent of their problems unrecognised) or they receive a very poor service from the people meant to be looking after them. (see p 21 of the NCISH report at )

    Of course things can still go wrong even when all these basic aspects of care are done well, but in those cases its clear MH staff have done all they could for the patient – and most families would acknowledge this and not have a problem. But far, far too many cases are not like this – basic elements of mental health care were just not done as they should have been done – and in such circumstances the families can legitimately ask would my loved one still be alive if the MH professionals had done their job properly?

    1. “Basic elements of mental health care were just not done as they should have been done – and in such circumstances the families can legitimately ask would my loved one still be alive if the MH professionals had done their job properly?” I am re-quoting this as its also applicable to mentally ill patients who are not criminals but turn violence inwards and take their own life, an experience which is still more likely than attacking someone else but we can only write on life’s experiences.

      I have no doubt, without early intervention, the brains chemicals are left to deteriorate, and clarity of thought is not always achievable! If National guidance has identified key priorities then this guidance MUST be implemented. If a person is seeking help then help MUST be available. If policy priorities such as “dual diagnosis” and “Early Intervention services” have been identified as available then they must be. Sadly all too often guidance is optional and guidelines don’t translate to ward or community! The correct terminology remains clearly identified in robust policy but confined to paper!

      Then the fiasco of the investigation process “sometimes” begins…..policy is read and quoted but there is no alignment of identified failures to either policy or national guidance and all the failures quoted above happen again and again….no lessons are ever learnt because saving money not lives seems to be the priority!

      MHC,… thank you for this blog and invaluable opportunity to debate these “hot

  3. Excellent article and the questions you’ve posed are ones I’ve often pondered upon. I know whatever the solution maybe, ‘I absolutely believe’ a part of the problem when it arises often stems from the personal or/and organisational politics of those who hold power. When it arises it is essentially a problem where those who can make responsible decisions do not seriously consider others well-being, unless it’s the well-being of the perpetrating individual. Why this happens I’m not sure? Perhaps in truth it is to save the reputation of organisations and psychiatrists who are part accountable, or to prevent situations whereby the victim can seek legal redress and therefore compensation. There is of course the question of psychiatrists who have sold themselves so strongly into the caring role they can no longer see the hills for the trees and therefore make everyone potentially suffer, inclusive of the individual in care. In such cases the concerns are that issues can be literally brushed under the carpet and other agencies then perversely utilised to dismiss the victims ability to promote the right action. And yes I’ve heard the disgraceful attitude of ‘whats the point of doing anything’ ,many times, and even management blaming carers for assaults made upon them. No matter what training care professionals receive there is never a time that a carer can be held accountable for unwanten violence. In a time of austerity and whereby local authorities are saving money by attempting to bring back many a dangerous patient to their fold, I can only see this issue of violence and irresponsible care organisations becoming worse. Of course the only people to be detrimentally effected are the patients themselves and frontline staff who are accosted on all sides.

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