I was asked a while ago to blog on the subject of criminal offences AGAINST patients, committed by professionals. Clearly, a very difficult issue. It is right that we cover it on here because we’ve discussed the equally difficult issue of offences against staff by patients.
Since the request I have been gathering some thoughts together as such allegations are rare and I have only been involved a few which would apply. The challenges to the police are clearly enormous and the stakes for the accused professional are potentially career, or even life-altering. But it is right that vulnerable people in the care of or in contact with the state’s agents should be safeguarded and are entitled both to a duty of care and to access to justice.
So professionals must ensure they understand the boundaries of the law and patients must feel able, without pressure or intimidation, to raise their concerns. This includes the right to raise concerns to the police if they wish, because like everyone they should have a fundamental right to access justice and the police must make a proper response. There have recently been various criminal convictions of mental health professionals for behaviour relating to patients not least at Winterbourne View, in Bristol. There have also been very serious cases of abuse in Kent and Sussex, amongst others.
Here are some I have experienced or advised upon:
- Allegation of neglect by MH professionals under s127 MHA: family complained that when staff ‘allowed’ a s3 patient a few hours’ unescorted leave so that he could attend court for an administrative hearing to set a date for a drink-drive trial, they were neglectful. The man having been arrested and charged with the offence two weeks before he was sectioned, he was allowed to attend court alone. Afterwards he did not return to the hospital but killed himself by jumping in front of a train. The inquiry failed to establish sufficient evidence of neglect against any one member of staff to bring a criminal prosecution, but it did uncover evidence and information used in disciplinary hearings which led to dismissal and professional de-registration.
- Another allegation of neglect under s127: again, family members making complaint that when MH professionals failed to stop a s2 patient from leaving the ward, they were neglectful. This case had all of the overtones of the Savage case, except that the patient did not commit suicide. Still, should potential neglect following formal allegations by judged on actual or potential consequences? Legally: the latter. In this case, a nurse was prosecuted for neglect and acquitted at court.
- Called to a hospital BY staff to a report that a s2 patient had smashed a window to try and escape from the unit. Upon arrival, it was established that decisions to allow release had already been taken by the Responsible Clinician but that the patient had not in fact been allowed to leave despite her wishes. Cue: investigation into whether ongoing detention amounted to false imprisonment of the patient by the staff. Patient was almost immediately allowed to leave and would not cooperate with police officers when they offered to investigate. Informal warnings all round to nursing staff and referral to managers about a potentially illegal detention. There was no ability to take formal action without the victim’s evidence. There is a legal right to use force to damage things if you have a ‘lawful excuse’: ie, escape from illegal detention.
- Several times in my career, probably six or seven times, I have warned – and in one case threatened to criminally investigate – mental health professionals who have incited the false imprisonment of patients. This always happens in the same way: the police are called to or sent to a private premises to deal with mental health emergency and because we keep having to be reminded not to use s136 in private places, we attempt to engage health services to come and take responsibility for mental health risks. Because of a difficulty in responding, or perhaps a preference not to have to, there have been several examples of CrisisTeams or AMHPs suggesting – or even explicitly asking – the police to essentially trick the patient outside to use s136; or to just use it anyway in a dwelling. Incitement to false imprisonment? Very potentially, and a clear denial of patients human rights (Art 5 and Art 8 ECHR to mention just two).
Of course in addition, there are several examples I’ve heard about where patients allege that restraint was unnecessary and disproportionate, therefore claiming that it is an assault. Such examples are familiar to police officers because we often investigate instances where people have deliberately used force on others who alleged it was either outright illegal, or illegal by virtue of being disproportionate.
To convict anyone of a criminal offence, it remains true that the matter must be proved in a court beyond all reasonable doubt that the accused is guilty. Prior to the matter of a trial, an investigation would have to conclude that there was sufficient evidence to charge the person with an offence and that it was in the public interest to do so. Sufficient evidence to charge means that a jury, properly directed in accordance with law, is more likely than not to convict. In reaching these decisions, a CPS charging lawyer would be guided by the Code for Crown Prosecutors.
Excessive force allegations are always difficult. As a police inspector, I often have to take complaints against police officers’ use of force and the problems are analogous. Police officers and mental health professionals are allowed to use force. The fact that someone did not like it; thought it was disproportionate; was hurt or injured by it or even just disagreed with the need for it: none of these things of themselves, render the force illegal. In reaching a decision about whether force used was unlawful, investigators, the CPS charging lawyers and ultimately a court would have to take into account the accused persons’ explanation of why force was lawful. The police use the acronym PLAN: proportionate, legal, appropriate and necessary. There is a background model for the use of force called the Conflict Management Model which assists officers in understanding how to consider the use of force and how it should be appropriately rationalised against threats. Health services have different training, models and acronyms but there is still a structured approach.
The Mental Health Act implicitly authorises mental health professionals, including AMHPs, to use force where required in particular circumstances. This could be to detain and convey for admission; to restrain on a ward to prevent an assault; to prevent someone leaving a Place of safety prior to assessment (s136(2) MHA); or to forcibly medicate under the Mental Health Act. Patients will obviously have their perception of whether force used was reasonable, whether it was done in the least restrictive way or proportionately to the risks exhibited. Crucially, the mental health professional may also have a view based upon their assessment of risks. These perceptions are invariably not going to be the same.
The fact that there will be a divergence is par for the course in any investigation of assault, especially where the person accused is ostensibly acting lawfully by using force. To move to a position where an allegation of assault is formally prosecuted, it is necessary to pass the evidential hurdles described above.
Perhaps most importantly for me, it is vital that police officers and CPS lawyers take seriously, allegations by patients who are often vulnerable and detained by the state in circumstances which are not always gratifying. It is equally important that criminal investigations are fair to the accused, whose careers and livelihoods are at risk if guilty of professional misconduct. That said, investigations into a service user’s allegations would be conducted on the same basis as any other: an accused is innocent until proven guilty; entitled to legal representation if investigated and the evidential hurdles are the same.
It is vital that service users, whether as victims or witnesses, are not immediately dismissed as unreliable purely by virtue of having a mental health problem. It is vital that ‘special measures’ to support vulnerable witnesses or victims are considered and this may include the use of specially trained police officers to take accounts in video interviews, rather than by taking written statements. And then: all cases on their merits.
The Mental Health Cop blog won
– the Mind 2012 Digital Media Award, in memory and in honour of Mark Hanson.
The Awards celebrate the “best portrayals of and reporting on mental health in the media.”
– a World of Mentalists 2012 #TWIMAward for the best in mental health blogs.
It was described as “a unique mix of professional resource, help for people using services and polemic.”