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.