The Criminalisation Contingency

This is a post about an aspect of mental health provision that has long puzzled me and various other police officers: direct patient access to specialist mental health services like medium secure units, based purely on clinical need.

There have been a range of incidents in my own experience, some have featured in media or legal cases, where problems have emerged in rapidly accessing secure care – the case of MS v UK (occurred 2004, ECHR ruling 2012) shows this best, in my view.  These may be considered ‘hard cases’ and I’m very familiar with the adages and metaphors which arise from drawing general conclusions from rare, difficult events … I’m also aware that if such arguments were advanced in relation to a police or NHS inability to respond appropriately to rare physical health problems such issues wouldn’t stand up one bit. Anyway …

Once upon a time a man who was detained by the police under s136 of the Mental Health Act was removed to police cells as a Place of Safety (PoS) for a want of any other options.  He was extremely unwell: floridly psychotic, delusional and / or hallucinating and so disturbed that he was clearly frightened of the officers who were attempting to reassure him and feared they were attempting to poison him by offering a drink. He preferred to drink from the toilet.

The MHA assessment which took place occurred within a short-period, but it concluded that the patient needed specialist services.  Even if we set aside the debate which ensued between the psychiatric intensive care unit (PICU) and the medium secure unit (MSU), there was still a significant delay in accessing the MSU to which the man was eventually admitted.  This was not isolated: I can recall a murder investigation in which a suspect was deemed in need of medium secure care by the initial MHA assessment professionals and subsequently by forensic psychiatrists who did a specialist assessment.  I can recall a man who was arrested for attempting to murder a police officer who was taken to Accident & Emergency initially because of injuries inflicted to his arms by police officers repeatedly batoning them, to prevent themselves from being stabbed.

In each of these three cases – I have got more – the clinical assessment reached a conclusion that the intensity of care required and the safety implications of detaining a particular patient for compulsory admission all indicated access to a medium secure unit was appropriate.  Once admissions decisions are made, there are various legal duties which fallout of that: not least to ensure subsequent handling of vulnerable people in such a way as to ensure their European Convention rights.  Usually this is around articles 2 (right to life), 3 (inhuman degrading treatment), 5 (deprivation of liberty), 8 (family / private life).  There are others.

But here is the rub: it is often argued to police officers – and it was in these cases – that MSUs do not directly admit patients ‘from the street’; or from a police station after arrest under s136 MHA or a criminal offence.  For some, the whole raison d’être of MSUs and of forensic psychiatry and is to deal with patients who are in the criminal justice system and most usually, this means having been charged with a criminal offence and manages via the courts.  Patients are then legally managed under Part III of the Mental Health Act 1983 (the sections from 35-55) which contain provisions for remands and assessments; hospital orders and restricted orders for public safety and transfers to and from prison.

But why not patients who have been picked up by the police but are not yet charged? … we are still talking about patient-offenders in contact with the criminal justice system.

In each of the examples mentioned above, the police were repeatedly asked to charge the ‘offender’ with a criminal offence first, to have him placed before the Magistrates Court – they were all men – before they are admitted.  The problem was that the evidence for a criminal prosecution simply did not (yet) exist in two of those three cases.  In the third example, it could have been argued that a charge was possible but this would have involved prosecuting a vulnerable suspect without affording them any opportunity to say anything to the investigating officers about their involvement in the incident and this.

In the murder example, the suspect-patient had been found standing in a house in which there was a dead body.  There was no direct evidence that he had killed the person, no known forensic evidence (although that was immediately preserved in order to be fast-tracked) and no ability to interview the suspect to get more evidence because the mental health problems requiring admission, they were unfit for interview by the police.  Furthermore, another man was arrested in the premises and it was unknown whether one of them, both of them or neither of them had been involved in the woman’s death.  So for reasons, unconnected to awkwardness on the part of the police and prosecution, there was no ability to prosecute because the evidence was not yet sufficient.

In the s136 case the man was subsequently suspected to have assaulted his aunt quite seriously and prosecution was called for.  Unfortunately for those who wanted it, his aunt steadfastly refused to make any complaint against her nephew and would not stand in court to say what had happened.  With no other independent evidence at all – the assault took place in a private dwelling – there was a clear legal barrier to prosecution.  If you don’t want the person who has assaulted you to be prosecuted, that will most often be listened to and reflected in the legal decisions taken by the police or CPS.

So why do we appear to have designed a service which often applies a condition of access which requires criminalisation of people who may not yet be able to be prosecuted for legal reasons.  Clinical need is clinical need, surely?

What are the ethics and issues in linking access to clinical care to, arguably, unrelated matters such as criminal justice status?  Occasionally, arrangements which deny or significantly delay access to care have been regarded as a breach of law so we do need to look at this issue.

A naively simplistic question: why are we not making access to care contingent merely upon clinical criteria?

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UPDATE on 27/07/2012 – since publication of this post I have been given feedback from various mental health professionals, including AMHPs, two parts of which I would wish to add here.

1)  Several have said, it is inappropriate to admit someone to an MSU from a s136 detention, that the person should go via PICU or acute admissions ward.  <<< Fine.  My point was never about where patients should go, that is for others to decide, not the police.  My point was, that wherever they need to go, it should be able to be realised in timescales which avoid breaches of the Human Rights Act.

2)  Others have said, that as an AMHP, they are prevented from making applications to PICUs or to MSUs, but restricted to acute admissions wards.  Again, this is not an issue for the police, except where the location to which the AMHP is restricted refuses to accept a patient because of their risk history of current presentation.

It seems to me that if MS v UK is saying anything, it is this:  clinical care criteria should lead to available pathways and delays in realising this are what lead to adverse judgements.

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Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

 

All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2012

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