I read a news article this week about another independent review into the treatment and care received by a mental health patient who went on to commit a serious offence. The review argued that there were three major opportunities for mental health services to intervene which ‘may’ have prevented the killing.
(Incidentally, another way of saying the same thing, is that there were three opportunities to intervene which ‘may not necessarily’ have prevented the killing, or may have just delayed it and / or displaced the identity of the victim. In any event, that is not what this post is about.)
This is about examining – from a police perspective – the considerations that should, could or would have been in play when police officers, prosecutors and mental health professionals were managing the earlier offending behaviour. Inherently, they were managing it unaware of what would happen in the future. This was one part of what the report apparently argues represented a potential intervention point. Diversion.
The police and the criminal justice system have a role to play in the management of offenders with mental health problems, even where they are ‘sectionable’. Let us remember something I have now written countless times on this blog: some parts of the Mental Health Act 1983 can only be accessed through the criminal justice system. So it follows that some people with mental health problems should be prosecuted – usually where offences are more serious or risks to the public are significant.
It can be inferred from the reporting of this case (the full report does not yet appear published online) that he was arrested for assaults and assessed under the Mental Health Act. Following assessment concluding that he required admission to hospital because he was “suffering from a mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment” the decision was reached to take no further action (at that time) for the assaults.
Why not take action? <<< I ask this question not because I think it is obvious that action could or should have been taken – it may have perfectly proper not to do so and I am certainly not armed with the full facts. I ask the question in order to prompt a more generic consideration in all our minds about the types of situation in which the police may say, “Well, regardless of your intention or preference to admit under Part II of the Act, we’re going to seek criminal prosecution and let the courts manage it, if need be via Part III of the Act because we believe there is a public interest in so doing.”
NB: A reminder for those unfamiliar with the details of the MHA –
- Part II is concerned with direction admission to hospital of patients where they may have committed no offence at all; or if they had, it was minor and able to be set aside in the context of their mental health problem without risk to the public.
- Part III is a serious of provisions specifically reserved for patients concerned in criminal proceedings and they include remand for assessment provisions, as well as treatment and restriction provisions for those who require them. Most international jurisdictions have mental health law distinctions of this kind.
This is a difficult business: no-one wants to criminalise and stigmatise a vulnerable person at all and certainly not unnecessarily; but we do wish to make sure that those who have been shown to cause harm to the community in random attacks are managed as well as they can be, in proportion to the risk they pose, to prevent further or more serious attacks. Often this means diversion from the police station; but occasionally it can take appearances at court and / or full psychiatric assessment under Part III of the Act and pre-trial hearings to establish whether diversion from court is appropriate or whether someone should stand trial.
What I do not know in this case, is the extent of any other offending background known to the police or risk background known to mental health services. In a sense it does not matter. The case of R v Rosso (2003) was not about a prosecution or diversion dilemma, but it did involve an appeal against the imposition of a s37/41 hospital order for an offender who had been convicted of an assault involving a knife. The assault, more through luck than anything else, was not a serious as it may have been. But again, it involved a patient who was reluctant to engage with mental health services and continued to pose a risk. He was prosecuted for an offence of assault against police officers who were assisting an AMHP to ‘section’ him – in fact, the AMHP had ‘sectioned’ him when the assault took place – and he was nonetheless prosecuted for assault and stood trial. Having been convicted of the offence, he was sentenced to a s37/41 order, despite no previous convictions for violence. The Court of Appeal upheld this conviction and sentence when he challenged the legality of the officers forcing entry to a hotel room to detain him.
The report makes clear that on previous occasions where ‘Mr Z’ had been detained under the Mental Health Act, it was following two assaults on the same day on two women involving the use of a weapon. Elsewhere in his care, there was indifference to medication regimes and stated threats to harm. So it may reasonably be inferred, prior to the attack Lucy Yates, that Mr Z may have posed “a significant risk of harm to the public” as laid down by s41 of the Mental Health Act 1983. It is also obvious from the fact that he was ‘sectioned’ that two psychiatrists and an AMHP thought he suffered from a mental disorder “is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment.” So I am interest in what consideration if any, was given to prosecuting him for the attacks on those two women, with a view to seeking or asking the court’s consideration of imposing a restricted hospital order under s37/41. Such orders need not follow only the most serious offences, but can follow from more minor matters where it is obvious that serious risks are presented.
Unnecessarily criminalisation leads to the reinforcement of stigma against those with mental health problems and even discussing the response to people with mental health problems who have (allegedly) offended is something which has previously led to suggestions that this blog reinforces a false relationship between mental health and violence. Of course, whether the relationship is false is something still debated.
Meanwhile back the in custody office, the custody sergeant has got a man in custody, arrested for assaults on two women with a weapon. There is information about non-compliance, threats and risk. The person has been assessed as being in need of admission to hospital and the AMHP coordinating the assessment seems both willing and able to arrange for admission. Are you going to ‘let’ the mental health professionals take the person under s2 or s3 MHA, or might you wonder about a prosecution in the public interest?
In fact, is it even your decision to take if medical professionals are saying admission is needed?! Well actually – yes it is. The position of custody sergeant is key to diversion, even though the responsibility for charging suspects sits with the Crown Prosecution Service, it is a custody officer’s decision as to whether ‘allow’ admission under Part II by taking no further action for the criminal offence where it is suggested as necessary following MHA assessment in police custody. Should they prefer to see consideration of charges being brought, they can refer the matter to the CPS. Should they choose to ‘divert’ they can exercise a decision to release the person from police custody under the Act, but also subject to police bail.
This all provides a good framework in which to balance all risks and vulnerabilities: if only we used them!
OTHER MEDIA AND LINKS
The Mental Health Cop blog
– won the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
– won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs
– was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
– was commended by the Home Affairs Select Committee of the UK Parliament.