Help! – first blog I’ve written asking for help, so any will be gratefully taken, either in comments below or in emails to email@example.com. 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.
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:
- 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.)
- 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.
- 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.
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.