Legal Opinion Sought

Help! – first blog I’ve written asking for help, so any will be gratefully taken, either in comments below or in emails to mentalhealthcop@live.co.uk.  I will write a blog summarising the feedback, if I get enough responses, especially from the lawyers because I’ve spoken to lots of AMHPs.

SCENARIO

Imagine a person under arrest for a (non-trivial) criminal offence at a police station.  The person is perceived to be mentally ill by the police and the Force Medical Examiner.  They have a history on intelligence systems suggesting mental health problems so it is decided to undertake a full MHA assessment, potentially for admission to hospital under the Act.  The solicitor happens to be there when the AMHP and s12 DR arrive to do it, with the FME acting as the 2nd DR for the assessment.  The solicitor expresses a preference to be present and the client indicates they have requested them to be present; they would both prefer to be in a position to take / give legal advice on whatever questions are put to them by the AMHP or DRs.

I have numerous questions that I can’t find direct answers to:

  1. Is there a ‘right’ to be exercised here: either for the solicitor to be present or for the client to be legally represented because the MHAA is occuring in the context of a criminal investigation and, ultimately, what is said in that assessment is not confidential (ie, client could disclose intentions of threats which would need to be disclosed back to the police because they are very serious threats with credibility around intent.)
  2. On what legal basis, if any, can the AMHP exclude a solicitor – ie, just because they prefer it; because the solicitor is advising the client not to answer certain questions or where the solicitor is perceived to ‘obstruct’ the AMHP and the assessment as a whole.
  3. At what stage does any advice that has become obstruction – including criminal obstruction contrary to s129 MHA?

I ask these questions because this is what I have gleaned so far from asking around:

  • Some think the solicitor can be excluded full stop – just because they AMHP / DRs may prefer a solicitor not to be present.
  • Some think that the mere act of advising a client mid-assessment not to answer certain questions – remember, they are obliged to answer nothing at all! – is in itself obstruction, including potentially criminal obstruction of the AMHP contrary to s129 MHA.

My un-informed reaction on which I can find little written down:  I can’t begin to believe – but I’m happy to learn – that there is a blanket ability to exclude.  Nor am I convinced that the act of a legal professional advising someone about answering questions that have a legal significance – either for their potential detention in hosptial or for criminal charges that may subsequently follow – is any form of obstruction and certainly not criminal obstruction.  As I say, happy to learn otherwise but we should remember that a solicitor may be privvy to confidential legal information that the AMHP / DRs are not and have professional duties in their own right.

I would have thought, especially remembering the query comes in the context of a criminal investigation of which the MHAA has become a part, that the solicitor could only be excluded – incidentally, one AMHP suggested they should be dragged out! – if the usual grounds for exclusion of legal representatives are met under PACE because the person is detained in police detention, subject to PACE and all the rights, protections and privilges it affords.  So far, I’m quite uneasy at the fear I’ve heard expressed about what a ‘threat’ the solicitor appears to be to an AMHP and not at all convinced that the mere act of giving legal advice is any form of ‘obstruction’, and anyway certainly not of the criminal kind.  It struck me as extraordinary, to be honest. <<< There: said it. 

Happy to learn, though – as ever … so all views gratefully received!  :-))

NB: in case any should argue that the MHAA is not a “part” of the criminal investigation, it should be borne in mind that one option following MHA assessment and necessary recommendations during a criminal inquiry, is to charge an “offender-patient” and place them before the courts with a view to utilising Part III MHA to further manage the legal / medical interface ahead of trial.

____________________________________________________________________
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12 thoughts on “Legal Opinion Sought

  1. I’m neither AMHP nor lawyer but I’d have thought that the right to an advocate (including a solicitor) would be protected under ECHR article 6 (right to a fair hearing). The ECHR principles certainly apply to other MHA principles. But, like you I’m very open to learning different.

    Cheers,

    Stuart

  2. My view would be that we could not exclude the solicitor, and indeed I have conducted MHAA with service users in custody for serious charges. What the AMHP and Dr’s need to insure is that they are assessing the mental state in isolation from the alleged offence. It is important that the detained person does not disclose information that may be considered evidence for the criminal investigation. In these circumstances, I have informed the service user that they should not mentioned anything related to the allegations, as that would not be confidential. I’ve never thought of it as a particular problem.

    1. Thanks for this … those were my thoughts, too but initial conversation on this lead to quite vehement suggestion from AMHPs that not only would they every right to automatically exclude a solicitor just because they preferred to, but that anything done by a solicitor to advise about answering questions, or prevent them being put would be a criminal obstruction of the AMHP, able to be handled under s129 MHA.

      1. I’m not sure AMHPs would exclude solicitors just on preference, but it would need to be for obstruction. As I said, providing the solicitor isn’t obstructing the MHA assessment there wouldn’t be a problem. But the client’s wellbeing would be paramount at the assessment and I’d rather exclude the solicitor if absolutely necessary and deal with the arguments later.
        With regard to assessing mental state in isolation to the alleged offence, I feel that could be extremely difficult as it could be the ‘Elephant in the room’ that needs to be explored. If a solicitor attempted to stop this line of questioning, I’d warn them and the if need be exclude them from the interview.

  3. Hello MHC 🙂

    As an ex-AMHP I’d have found refusing the lawyer to be present legally questionable. Especially if the client has requested they be present. However, I would remind the client and lawyer that the MHA assessment is not part of the criminal investigation. If during the assessment the lawyer was advising the client not to answer questions (Or answers for them), I’d politely remind them about s.129 MHA (1983). If the situation didn’t change I’d ask them to leave the assessment.

    The only proviso to this would be if the lawyer was being paid by the client. In which case, based on my view at the time, I might quote Chapter 7 of the COP. Of course, this is usually around AMHPs and Medical Professionals and conflicts of interest. But I think it would be an interesting point to argue around the lawyer having a conflict of interest. After all, if the client is going to be detained under the act, they probably won’t be charged with the criminal offence and the lawyer won’t get more cash.

    I hope this is helpful.

    BailDnide

    http://www.baildnide.me.uk

    1. Brilliant, that’s helpful. The one thing I’d say, is that the client is not obliged to answer your questions irrespective of whether they have a lawyer, so were a lawyer to be present and remind the client of this, I don’t see that as obstruction contrary to s129. Same applies to police interviews, different in nature though I know they are: you cannot accuse a solicitor of obstructing the police contrary to the Police Act, merely for reminding them of their rights.

      Thoughts?!

      1. I agree with you.
        Invoking s.129 would be a last resort. I’d only use it if the client was going to answer questions and the lawyer was advising them not to. If the client was refusing to answer all the questions there’s probably not much point in the lawyer being present!

      2. I am absolutely confident for a range of reasons, that a lawyer merely advising a client not to answer a question that they are not obliged to answer anyway – irrespective of whether they were going to answer it prior to the advice – is not a criminal obstruction. There is a special legal role for solicitors in all legal processes, that needs to be recognised. Advice of legal rights, as well as legal advice on the basis of acting in a person’s legal best interests is not a form of obstruction.

    2. I think this comment makes the most sense. Thanks. If a person has been arrested for an offence it is going to be really difficult if the AMHP asks the question: “What is your understanding of why you are here?” and the lawyer starts telling thier client that they do not have to answer such questions. How are the AMHP and the Dr(s) going to get a clear understanding of what is going on for the person if they are being told not to answer questions.

  4. Normally i can’t see why having the solicitor present would cause any problems as the role of the AMHP is to conduct a MHA assessment, not investigate if the person has or hasn’t committed a criminal offense.

    However does the assessment need to be carried out now. I’m presuming the FME has assessed the person to be fit for interview, why not get that out of the way first. There does appear to be a conflict within the law as the CoP states in 4.52 that the AMHP should assist if the person want someone with them during the assessment, but 38.11 of the reference guide states under sec 129 it is an offense to insist on being present (with or without reasonable cause) when asked to withdraw by a person authorised under the Act to interview or examine someone in private.So technically i think you could ask the police to remove the solicitor while you conducted the interview but realistically if they advised the person not to answer certain questions, you would just have to form your opinion on the information you have, same as you have to in most assessments

  5. I wouldn’t have a problem with a solicitor present and it would be dependent on the wishes (and best interests) of the person being assessed – I would hope the solicitor wouldn’t interfere with the assessment process – but I guess I wouldn’t know if they were going to or not until we had actually begun. In other words, BC is on the money with this in my view.

  6. From a mental health advocate. If a detained citizen request a lawyer or advocate, they should get one. Someone who is incapable and out of control, would they really know their rights and request a representative?

    The issue of criminal detainees being assessed I will not comment on.

    But when a capable citizen is being treated as mentally ill, and is refused their requested call to lawyer, and ask for call to family and that is refused also, then Houston we have a problem.

    How many police and or medical staff would be OK with not having a lawyer or representative from their union present if under investigation for something they did not do? Is their a difference?

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