Whose Decision Is It To Divert?

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!

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9 thoughts on “Whose Decision Is It To Divert?

  1. According to the Inquiry report
    “On 23 August 2007 Mr Z assaulted with a torch, a female member of staff at the hotel. Subsequently MR Z has said he used a knife not a torch. Later the same day he sprayed another woman in the street with an air freshener. Subsequently he said he used a pepper spray. Mr Z was detained by police because they were concerned about his mental health. A psychiatric assessment was conducted at the police station and MR Z was admitted to hospital as an informal patient.
    On admission to the acute mental health ward Mr Z said he assaulted the women because of intrusive thoughts he was unable to control… He reported he had received messages from aliens when he was 13 years old….and described an echo in his head. Mr Z had a set of beliefs about milk being contaminated and it would dilute his black genes.” (p13)

    On admission Mr Z was identified as being at high risk of harming others because of his delusional beliefs, but the assessment did not note he had carted on those beliefs and had used weapons in doing so. Approximately three weeks after admission it was recorded that MR Z’s paranoid thoughts were getting more frequent…Mr Z also described a number of graphic sadistic sexual fantasies to staff…He had a preoccupation with serial killers and wrote the names of some of them on the walls and door of his room” (p14)

    In October he was still considered to be high risk and spoke about wanting to kill and harm people. He had vivid and copious violent fantasies. He watched graphic and violent films in hospital.

    In November Police issued him with a caution for the assaults on the two women, and a weapon was discovered in his room, and ‘October 2007 serial killer was here’ was discovered on the wall under a poster. No action was taken.

    After a period of release, discharge from hospital in March 2008 and responsibility for taking his own medication, he was readmitted into hospital in June 2008, saying he was receiving messages from God, the FBI and MI5, killing people and the world blowing up at the end of June. He had bought a sword but had thrown it in a river.

    He was released from hospital in August 2008 but stabbed Miss Yates a month later. He told Police he hadn’t taken his medication for 28 days.

    The Inquiry report is available at
    http://www.southofengland.nhs.uk/wp-content/uploads/2012/03/Mr-Z-Independent-Investigation-25-June-2012.pdf

  2. I don’t wish to make points specific to this case, but to a more general problem that this case highlights. For many years working in MH in the NHS I encountered, along with colleagues from all professional backgrounds, difficulty in getting offending behaviour documented / dealt with in a formal manner. None of us wanted to increase the stigma for an individual or in general for people suffering MH problems, but there were instances where serious offending was never followed up appropriately. The reality is that some use mental health difficulties wrongly as a means of abdicating responsibility for their behaviour and subsequently avoiding the consequences. This is NOT the case for many with real problems. However, even where an individual has a MH problem that may be directly responsible for risk of violence to themselves or others, deciding that voluntary or compulsary psychiatric treatment alone is the answer is not always the only or best solution.

    The most helpful risk assessment and management depends on having the most complete information and history available. This is not about blaming or controlling the person with the MH problem and is not without its limitations and complications. I have said this before, but stigma and legal procedure aside, what needs also to borne in mind is that if some-one who commits a serious or violent crime whilst under and due to an acute phase of mental illness they later have to deal with that. It may be a custodial sentence ( hospital order), major disruption to their family and social relationships and not least their own consciences and all that this entails. Access to appropriate services / therapies, especially in these increasingly prescriptive and financially constrained times, may depend on an accurate and documented history of risk. Careful and thoughtful use of the CJ process is obviously required, but swinging from under-appreciation of the MH needs to under-reporting of offending behaviour helps no-one, least of all those most in need of our professional care. One way to achieve this may be controversial, although the law and professional guidelines do already exist, which is a greater readiness for professionals from all backgrounds to share risk related information ahead of occurences of offending behaviour or on request when appropriate.

    All that said, I believe in the last 12 months I have welcomed a general police response not to have difficult, complex or challenging MH cases “dumped” on custody sergeants (who have as a body largely risen to the challenge well even if not having the resources to manage it). But it does appear for the time being they are going to need to be better assisted in making the decisions about who should be considered for diversion, and by what route. Mental Health Cop not included, who is going to support them in this? A multi-agency / MDT consultancy? And which of those is being commissioned 24/7?

    My fear is yet again the police will be left holding the problem risk that should not be theirs alone.

    1. Hear, Hear and Hurrah! I’m confident from reading this comment that if we discussed these issues we’d just end up agreeing. I agree with the concept of diversion in some cases, but believe it is overused – largely because it’s badly defined and legally questionable on many occasions. The law doesn’t do ‘mad / bad’, yet we seem to structure our response to mentally disordered offenders as if it does.

      I think we need far better risk assessment and information sharing arrangements and I believe that both police and NHS under-share information at critical times, leading to peverse decisions in some cases and this includes over-diverting inappropriate offenders.

      I have a small map in my head of how this works, cheaply and is predicated purely on a willingness of organisations to point out that all too often Caldicott Guardians are over cautious and inappropriately protective of information that is needed to allow police officers and CPS lawyers to make legal decisions which are requried of them. That such decisions are then made half-blind, is not the fault of CJ agencies.

      We need better, more nuanced approaches to diversion.

  3. I’m not sure it often gets as far as Caldicott Guardians. Professionally, in my case it doesn’t have to, and I’m sure in others’ too. I have often, where it was indicated shared relevant risk issues / risk histories with police / probation and had them make info available to me where psychological risk issues reports had been requested for the courts (including tribunals) and MAPPA.

    Only NHS trusts would insist on that (Caldicott approval), and frankly in recent years they have been sidelined by HR / information governance. I could suggest reasons for that, but that gets us into political stuff ( not my preferred noun).

    I was not suggesting that CJ systems are always to blame, but we both know CPS is a little behind MH and police in their values for pursuing certain issues. We can only keep fighting, with all of our colleagues, for a better balance of rights and access/ recording of information.

    You do a great job of raising the right issues in the right way. The rest of us have a responsibility of interpreting our professional guidelines in an ethical way. That includes informing the relevant authorities of risks of harm to others, by whatever means, by whoever, under whatever circumstances, where those risks are indentifiable, quantifiable, significant and especially if imminent. We do have professional guidance and legal precedent to do so. e.g., DoH guidelines on risk management, Tarasoff, Osman et al.

    And we both, I am sure, would yet again say more training, but about the really relevant issues. Bless you for your work.

  4. Do I have this (roughly) right? Part II applies where the behaviour is deemed to be ‘minor’ and the person not representing a risk to others and Part III should be invoked where a person has allegedly committed a criminal offence and could reasonably expect to be brought before a court?

    Z would seem to be a clear candidate for Part III. Open and shut. Why on earth not? Can anyone explain?

    1. Not quite – Parts II and Part III can be used irrespective of gradations of risk: each requires psychiatrists to be arguing that someone is suffering a mental disorder of a nature or degree that makes it appropriate for them to be detained in hospital for treatment.

      So nothing prevents the police, having arrested someone for a serious offence, allowing psychiatrists to detain under Part II. If actually happenes quite often. I’m trying to put the argument, that it could and probably should happen less and Part III should be used more.

      This is because if someone is charged and then remanded under Part III a psychiatric report will be written for court which brings all of the relevant material together in one place for consideration by one agency – the court. In a police station, where there is a dearth of health information, I would argue it is inappropriate to be making decisions of consequence about whether to immediately take no legal action against someone whose background is not entirely known.

      1. Thank you. I see. I was observing in the Magistrates’ Court the other week and I realise that this is where the Probation Service may come in. Commissioning and collating reports. Unless you take a multi-agency approach (how I detest myself for succumbing to the jargon) you don’t get the full picture.

        If offenders aren’t charged then where is the record of their offending behaviour? How can the public be properly protected? Even one of my students has started using his learning difficulties to excuse his low-level idiocy to the local police. Name-calling in the town centre mostly. I don’t think it will escalate but I’ve been wrong about him before. I’m sure we’re all giving him the benefit of the doubt and I hope I don’t see his mug in the paper one day for all the wrong reasons. But are we doing him any favours by patting him on the head and letting him off?

      2. Records of allegations, behaviours or other intelligence which do not lead to formal charges are retained on police systems. Therefore, in theory, if a person is arrested for minor offending and diverted under mental health provisions, the police will have that record. If a person should be arrested again, then they first arrest / diversion, will be available information. However, the records are maintained by each police force, rather than nationally as is the case with convictions. So in principle, someone could get repeatedly diverted in Force1 but then subsequently move to or get arrested in Force2 and unless the officer in the case specifically contacted Force1 and ask for a check, information may not be passed on. This is what the Bichard Inquiry was getting at aroudn the poor information sharing arrangements for Ian HUNTLEY.

        Your final question is a complex one involving infinite shades of grey – I like the idea of taking each case as it comes, having given the relevant professionals the framework within which to do the right thing. Anything more specific, is potential prone to greater error, in my view. What do you think?!

        Made me laugh on the point about jargon! 🙂

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