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:
- whether or not the actus reus of the offence can be shown (the act done);
- 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 …”