A Response to The Masked AMHP

This post is a response to a fascinating perspective from The Masked AMHP about criminal responsibility – incidentally this blog in general, is a great insight into the role of an Approved Mental Health Professional and has taught me a lot.  AMHPs are charged many crucial decisions about the implementation of the Mental Health Act – this prize-winning blog is well worth a read.

The post on criminal responsibility came after a dialogue with a reader, to allow more time for thoughts on responsibility.  It flows from that post that I wanted to provide some of my own from an investigator’s point of view.

The discussion point began with dialogue about whether a female patient with a diagnosis of paranoid schizophrenia should be prosecuted for attacking her kitchen boiler by damaging it.  She did this, because her condition caused her to think the boiler was talking to her.  The essence of the post is that “the crucial point here is to do with mental capacity”.

Legally speaking of course, the start point is, that you can damage your own property if you want to.  You can even damage jointly owned property without fear of prosecution, because it’s your property to damage.  However, you may not do so in ways which endanger the lives of others, and whether so endangered deliberately or recklessly.  This second, I will call it ‘aggravated’, version of criminal damage is where it starts getting complicated because you need to explore what was in a person’s mind when they damaged a boiler.

So if this patient lived in rented accommodation, where the boiler belongs to a landlord or housing association, offences of ‘simple’ damage or aggravated damage are possible.  If she owned the property and the boiler was hers, it is only an offence if the damage was aggravated arising from it causing serious risks to others.

I have blogged before about using mental capacity frameworks as a guide to investigation and prosecution, and whilst there is some relevance to decision-making I can’t agree that it is the key point.  Of course, the Masked AMHP is (I think!) as much referring to how a health or social care professional may approach the issue of whether to report the offence for investigation, as much as the investigation itself.  I’ll come back to this point nearer the end.

Taking it that an offence has been reported, the proper legal approach to investigation / prosecution is not around mental capacity, but about the satisfaction of a two stage legal test:

  • The Evidential Test – is there enough evidence to charge?
  • The Public Interest Test – is it in the public interest to prosecute?

THE EVIDENTIAL TEST

This in itself has two parts:

  1. whether or not the actus reus of the offence can be shown (the act done);
  2. whether or not the mens rea can be shown (the guilty mind);

The actus reus is usually quite straight-forward in offences involving mentally disordered offenders.  Unlike acquisitive criminals who seek to evade identification, capture and conviction, there is often an ‘up-frontness’ about offending behaviour by mentally disordered offenders.  So:

  • there will either be boiler damage or there won’t;
  • there will either be admissions of causing the damage or there won’t;
  • there will either be witnesses to the causing of the damage or there won’t.

So you then move onto the next question of whether or not the mens rea is proved.  Well, for the simple offence of causing damage, it requires a low-level of intent, mens rea would be easy to show even if someone was mentally ill.  It would be far harder for the aggravated version of the offence where proof must be offered of intent or recklessness of the risks to life being caused.

Rather than provide any further, turgid explanation of all this, I would refer people who want more detail on it to Crown Prosecution Service Guidelines on Mentally Disorder Offenders.  Suffice to say, the law regards everyone as sane and responsible for their actions, unless the contrary is proved in court and it is a matter for the defence to raise insanity.

Simply put, that someone is mentally ill, does not automatically or even often preclude the potential for the ‘mental’ element of an offence to be proved at the point they punched someone, damaged or stole something.

PUBLIC INTEREST TEST

It is my view, that far more often, the real issue of whether or not a mentally disordered offender is prosecuted, is the public interest barrier.  And this is where the Masked AMHPs use of mental capacity as a framework to approach whether to report is particularly useful.  Notwithstanding the views about ‘defining behavioural boundaries’ and ‘showing consequences to actions’ and ‘therapeutic jurisprudence’; it remains the case for all offenders, that there must be a public utility in a prosecution.  I think there would be, more often than we currently recognise – for a range of reasons I’ve covered in other blogs.

Most solvable criminal offences are not prosecuted.  Where we know who the offender is, less-than-formal mechanisms are employed whereby we informally warn; we reprimand or caution; we issue fixed penalty notice fines and we arrange restorative or reparative justice without reference to the CPS, courts or prisons.  We also sometimes put a criminal offence to one side, even where actus reus and mens rea could be proved, because it is clear the public utility is better met by a mental health intervention or schools intervention or an employer’s sanction.

This is where for mentally disordered offenders (and young people) ‘diversion’ comes in – oh, how I just hate that word.  If someone is mentally ill, to a degree that warrants a therapeutic response, it may not be necessary to prosecute at all, if the necessary, available mental health intervention takes care of immediate risks and mitigates against recurrence. Indeed, it may provide longer-term rehabilitation.  For example, the re-offending rate for restricted hospital patients is about 6%; that for prisoners and community sentences sometimes ten times that rate.

Of course, all cases on their merits: if someone with a very real mental disorder who can be held responsible for their actions, is unwilling to engage with mental health services; it may be that we discount diversion before charge and take someone to court. The courts then have powers under Part III MHA to manage the issues around liability, fitness to plead / stand trial and The Masked AMHP is absolutely right to point out that “you cannot make any blanket judgments according to diagnosis, along the lines of ‘someone with a diagnosis of schizophrenia lacks capacity’, or ‘someone with an emotionally unstable personality disorder has capacity.’”

These cases can be complicated. So where someone “lacks capacity”, you may still seek to prosecute them because they’ve raped someone and all the balances and protections of the court, the criminal justice and potentially the Mental Health Act are needed. This can only be done under our Constitution by a criminal court.

But we can agree at the end, as the Masked AMHP concludes: “So the brief answer to the question posed at the beginning of this post: “are people with mental disorder responsible for their actions?” It all depends …”

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4 thoughts on “A Response to The Masked AMHP

  1. Again, I agree with you and the Masked AHMP.
    If only all police and AMHPs were like you two, the country would have a better mental health system in place.
    Your views are commonsense, and practical and understanding.
    As you say not all crimes are punishable in the courts. And it all depends what is a crime in the first place.
    The more complicated a situation is the more likely it is for someone to be wrongly accused of criminal activity and the more chance there is for a bad judgement to be made by a jury which might end up in the High Court and Court of Appeal and even the European Courts.

  2. Thanks for your kind comments about my blog. The issues around mental capacity and commission of and prosecution for offences are extremely complex and one or two posts are not going to resolve them to everyone’s satisfaction. Indeed, Monica continues to pose questions following my post devoted to answering her previous enquiries. In the past I was heavily involved in devising my county council’s policy on diversion of mentallly disordered offenders from the criminal justice system. At that time we used to try to divert almost everybody; over time I have come to the conclusion that there are many instances when the courts should be allowed to make decisions relating to the disposal of a mentally diosordered offender. For example, use of Sec.37/41 imposes far more safeguards for the public than Sec.3 for an MDO who has committed offences against the person.

  3. I have made several FOI Requests in regard to Mental Health and would be most grateful to have people’s views. Not all of it is about criminal activity, but then people can be detained without having committed any offence.

    And this is where I believe that there is a need for reform of the law.

    MERLIN, MAPPA AND MARAC – details of history
    ROSEMARY CANTWELL made this Freedom of Information request to Metropolitan Police Service (MPS)

    Waiting for an internal review by Metropolitan Police Service (MPS) of their handling of this request.
    From: ROSEMARY CANTWELL

    18 March 2012
    18 March 2012

    Dear Metropolitan Police Service, CPS, Mr Grieve, MP, QC, Attorney
    General, Mr Clarke Lord Chancellor, Secretary of State for Justice,
    Mr Starmer, QC, Director Public Prosecutions,

    I am making a formal request for information regarding MERLIN,
    MAPPA and MARAC and their detailed history and their precise role
    and status in policing and prosecution.

    MERLIN
    1] What is MERLIN? According to Wikipedia it is about Child
    Protection. But elsewhere it says it is a police database about
    vulnerable people, Found people, Missing Persons, as well as child
    protection.

    The blurring of the lines seems to me to be problematic when police
    make mistakes and use the wrong forms for saying a person was FOU
    when in fact they were NOT found at all wandering.

    How does one access documents to disprove what has been claimed in
    Metropolitan Police documents when the “facts” are in fact wrong
    and untrue and pointed out to be wrong by another agency but still
    the paperwork is kept wrongly, eg a Detective Inspector using a PAC
    form about potential child abuse when in fact there was nothing at
    all about that? And that the local social services has pointed out
    the mistake but it stays on file nonetheless? What sanctions can be
    brought by the wrongly accused? What legal remedy is there? After
    all, it is a terrible charge to be thought to be a potential child
    abuser and it would appear that any police personnel doing so might
    be called on a charge for so doing, especially where it has not
    been sought to be rectified, and then these documents are used in a
    subsequent investigation. As the ORIGINAL documentation is
    INACCURATE then it follows as night follows day that any SUBSEQUENT
    reliance on such evidential material will be INADMISSIBLE in Court.

    MERLIN AND BROMLEY POLICE:
    I would like to know how I can make specific complaint about such
    an issue. To whom do I address my complaints? Is it Bromley OCU or
    the Mayor’s Policing Body or whom? Once a person’s reputation has
    been maligned in such a way, it becomes seeded in all kinds of
    other people’s minds that here is someone not to be trusted.

    2] MAPPA
    What is “MAPPA”? According to the internet there is an organisation
    calling itself MAPPA – Multi-Agency Public Protection Arrangements.
    However this seems to be a shadowy operation based on loose
    partnership arrangements. According to one website, MAPPA is
    specific for KNOWN OFFENDERS but NOT for suspects or defendants.

    So which is correct? That MAPPA is for ANY multi-agency public
    protection arrangements or that is solely for known offenders?

    Again, the use of MAPPA seems to be being used interchangeably with
    modern policing in partnership with local authorities and NHS
    facilities such as GP practices, PCTs, hospital trusts and mental
    health trusts.

    I would greatly appreciate the PRECISE definition of MAPPA and its
    PRECISE TERMS OF REFERENCE and its PRECISE DATA CONTROLLER and
    details of how an FOI request can be made to MAPPA itself, and how
    Data Subject Access requests can be made to MAPPA itself.

    For if the public are to be protected, then they need to know who
    are the custodians of the information database on which their
    public protection is based.

    MAPPA and BROMLEY
    As I understand it, MAPPA was in force in 2006 in Bromley. Who were
    the agencies involved in 2006, if that is so? Where are the
    links/details for MAPPA in Bromley in
    a] 2006,
    b] 2007,
    c] 2008,
    d] 2009,
    e] 2010,
    f] 2011,
    g] 2012?
    And please provide the specific and comprehensive details of all
    MAPPA in Bromley for each year from 2006 to 2012 inclusive, to
    include named MAPPA agents and personnel as being NON-personal data
    as they are public servants or people acting on behalf of a public
    service. Thank you.

    3] MARAC
    I refer to a document on the Bromley Police part of the
    Metropolitan Police website authored by Julian Hurst, FOI.

    I wish to know when “A purpose specific information sharing
    agreement between Bromley Borough Police and Bromley Multi Agency
    Risk Assessment Conference (MARAC).” was first mooted.

    It states:
    “Summary An agreement to formalise information sharing arrangements
    between Bromley Police and partner agencies within the Safer
    Bromley Partnership and those representatives attending MARAC’s.
    This is for the purpose of ensuring all members are aware of
    intelligence and information which fall within remit of MARAC and
    the sharing personal information attributable to
    victims,perpetrators or children of the family. (B)OCU or Unit /
    Directorate Bromley Borough”

    It states:

    “Multi Agency Risk Assessment Conference (MARAC) is comprised of
    Bromley Police, Broomleigh Housing, Victim Support, Bromley council
    (Housing/Social Care/Drug and Alcohol), the Probation Service, the
    Education Authority, the Primary Care Trust, Domestic Violence One
    Stop Shop, Hyde Housing Association, Kelsey Housing Association,
    Woman’s Aid, Social Services, Oxleas NHS trust and PCT.”

    MARAC specifically is shown as including Oxleas, and names Barbara
    Godfrey – giving her contact number.

    The rationale is to provide support:

    “The objectives of the partnership are to provide effective
    partnership working in order to enable the MARAC members to perform
    their necessary duties. This will provide an opportunity for early
    support and intervention to the victims and their extended families,
    improving the quality of service to vulnerable victim and their families
    across the borough.
    It will assist with victim care and investigation in cases of
    domestic violence. It will also present opportunities for partner
    agencies to assist in dealing with offenders within their core
    business.”

    I wish to draw attention to the word “offenders”. In legal
    terminology this can ONLY apply to people who have been convicted,
    and not to people who are suspects or defendants in a criminal
    investigation.

    So, where it states “vulnerable victim” again this can ONLY be
    shown to be the case where a CRIME has been proved. Until then an
    alternative terminology must be used.

    For a crime there must be a victim. Without a crime there is no
    victim. But for there to be a victim there must be a person
    convicted of a crime before the term “victim” can be used.

    I am very surprised that such loose terminology is allowed to be
    here.

    Including the use of the word “perpetrator” because again unless a
    person has been convicted of a crime, a person is INNOCENT OF
    ANYTHING UNTIL PROVEN GUILTY.

    Therefore I believe that this is wrongful to use, just as CareFirst
    is wrongful to use the word “perpetrator” where there is no crime
    proved and a person MUST be presumed innocent.

    I find this all deeply disturbing.

    We seem to have gone from a legal system where everyone is presumed
    INNOCENT until proven guilty to one where the person has to PROVE
    THEIR INNOCENCE.

    Because I know that it has happened. And I want this to be changed
    immediately so that we return to INNOCENT UNTIL PROVEN GUILTY ON
    ALL OFFICIAL FORMS IN USE FOR CAREFIRST, MARAC, MAPPA, MERLIN AND
    ANY OTHER DOCUMENTATION IN USE BY MULTI-AGENCY PUBLIC PROTECTION
    AGENCIES.

    OXLEAS
    I wish to know how Oxleas should be proposed to be sharing MEDICAL
    data with Social Services and the Metropolitan Police in 2007
    regarding a family member of mine when according to this document
    it was not legally entitled to do so.

    Thank you very much,

    Yours sincerely,

    Rosemary Cantwell

    Campaigner for liberty, truth and justice

    However, I may be in for a long wait for an answer.

    I would be most grateful for ANYONE to help me in this.

    Thank you so much,

    Rosemary

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