Do you remember what I mean by “the criminalisation contingency”? – the process whereby access to certain types of healthcare are made dependent upon the legal framework wrapped around the patient? If not, I wrote about it last year and you can take a look at that before reading on, if you wish.
But try to imagine if your access to healthcare were made conditional upon certain police decisions about legal issues? What if this happened in other areas of health? – “I know you have diabetes, but you’ll have just keep seeing your GP about it even though you need a specialist diabetic consultant, unless the police prosecute you for some offence arising from your diabetes.” Replace the word diabetes with “cancer” or “a broken leg” if you want. It all adds up to the same thing.
Well, we saw yesterday how this has occured again in 2010 following the tragedy of an infanticide offence. Infanticide is the killing of a child under the age of one by its mother in circumstances where “the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child”. Although such cases are rare, they inherently give rise to mental health considerations admidst legal recognition in the Infanticide Act 1938 that this is always connected to mental ill-health.
In the particular case of Ms X, who suffered from severe depression, it was alleged that she had smothered her ten-day old son Leo, with a pillow having received inadequate mental health care both before and after giving birth. As required following any homicide, an independent report has been published regarding her treatment and care by various healthcare providers and it revealed inadequacies in care planning, risk assessments, and informtion sharing as well as a failure to listen to her to family.
When I read the report, one thing struck me beyond the obvious tragedy that this obviously is for everyone involved: there was a clear example of the criminalisation contingency. Let me remind you of the main parts:
- Ms X was assessed in police custody after arrest as being in need of admission under the MHA.
- Despite the criteria for an admission under part II MHA being satisified, a deliberate decision was taken NOT to apply for her admission to hospital under either s2 or s3 MHA.
- Instead, the prosecution of Ms X was sought so that she “could be admitted to hospital under s48 MHA”.
- This was so should could access a secure service.
- If someone needs a secure service, why can’t they just access one? – we know that some people do, so why some and not others?
- The man arrested and sectioned after the killing of Christina Edkins accessed a secure service without having (yet) been charged, so why didn’t Ms X?
Can you see the similiarities in criteria for direct admission to hospital under s3 MHA and transfer from prison under s48 MHA?
- Section 3 – “Suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and appropriate medical treatment is available.”
- Section 48 – “Suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and he is in urgent need of such treatment; and appropriate medical treatment is available.”
I submit it amounts to the same thing, for Ms X’s purposes but what the report doesn’t make clear, is what is actually involved in getting there. Having been denied an application to hospital for section 3 admission because of the preference for immediate prosecution, she was placed before a Magistrate’s court who has no power whatsoever to remand her to hospital for the treatment and care which had been identified as necessary in the police station. This means the court only has two options: to remand her to prison pending transfer under s48 MHA; OR to release her from court on bail, which then means amidst a suggestion of serious mental health problems and a criminal prosecution for a homicide offence, she is at liberty whilst, one presumes a potential suicide risk, if nothing else.
Of course, some reading this will say, “But she had killed her child!” Well, there are two things to say – firstly, innocent until proven guilty and even if guilty we now know this was partly due to poor healthcare and a failure to mitigate known risks at least partly beyond her own control; but secondly, admission to hospital under Part II does not preclude a prosecution occuring. It potentially makes it easier to manage all of the mental health implications of preparing for a criminal trial where mental ill-health will feature large. This is what I outlined recently in the case of the man arrested following the death in Christina Edkins.
And of course, transferring any prisoner under s47 or s48 from prison to hospital can take weeks, if not months. Whilst waiting for that transfer to occur, you have a person in prison, suffering from serious mental health problems who is at best, receiving some input on the prison hospital wing where the opportunities or benefits of treatment under the Mental Health Act cannot touch her at all. Far from satisfactory.
Here we have the criminalisation contingency writ large: a woman who this independent reports had already been failed by the healthcare system on several levels, is then prosecuted for an offence amidst suggestions that she needed immediate treatment and care and then put through a period of imprisonment during which she could not fully receive it, pending the bureaucratic wheels of transfer turning, to arrange her removal to a hospital.
Here’s my question – why not, just divert her to the appropriate secure hospital from the police station, prioritise her treamtent and wellbeing and once that is in hand, prosecute for the offence because of its serious nature and allow the court process to take its course? Dignified, humane and a proper balance of ensuring treatment for a vulnerable person whilst ensuring a proper legal hearing of the relevant issues.
Ms X pleaded guilty to infanticide and was given a hospital order (without restrictions) in what is one of the saddest cases I have ever read about.
Update on 01st April 2015 – since writing this article, a new Code of Practice has come into effect in England. It doesn’t substantially alter the post but certain reference numbers have changed. My summary post about the new Code of Practice (2015) is here, the new Reference Guide is here and the full document is here. The Code of Practice (Wales) remains unchanged.
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