Fit To Be Charged

In a lot of police forces, the form for medical assessment of someone under arrest contains three boxes to be ticked or crossed, as appropriate.  It asks the doctor or nurse whether someone is –

  • Fit to be detained
  • Fit to be questioned
  • Fit to be charged

We instinctively understand the importance of these assessments and the first two are legal requirements arising from Code C to the Codes of Practice to the Police and Criminal Evidence Act 1984, known as PACE.

But where does it say in law that someone must be “fit” in order to be charged? – actually, it doesn’t.  It’s not in PACE itself, it’s not the Codes of Practice to PACE.  I’ve always wondered whether it arises out of the requirement to ensure that suspects in custody have had sufficient period to allow the effects of alcohol to wear off; and because we’ve asked that question about “fit to be charged” for alcohol, it has evolved in our thinking that this is a legal requirement?  Where someone is arrested for drink-driving and they are found to be three times over the legal limit, they get around 12hrs B&B from Her Majesty before being prosecuted.  This also happens for those who are drunk and disorderly or drunk and incapable.


When someone is arrested for a serious offence and the evidence exists to suggest they should be prosecuted, it may be necessary to do so even though they are acutely unwell.  I find this completely counter-intuitive but bear with me on it.

I’ve written before about why there are particular benefits to a process where patients in need of admission are sectioned from police custody so that their health and wellbeing are prioritised and criminal proceedings can be instigated later, once someone’s recovery is established.  This also has the attraction of improving the potential that someone who was arrested whilst very unwell will be fit to plead and fit to stand trial once they actually appear at court.

But this is not the only way to proceed – occasionally, it is just not possible to do things this way and it remains legal to initiate criminal proceedings even though a suspect may be “suffering from a mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital.”  It has happened many times before, including in the case of Christopher HAUGHTON in London in 2011.


I understand why such a view would be taken and I would agree that if often would be.  When we remember that prosecution means appearance in the Magistrates’ Court and that magistrates have no power under the Mental Health Act to remand a person to hospital for assessment / treatment after their first appearance at court, it can risk the possibility that a Magistrate would end up remanding someone to prison.  Although reception prisons have mental health inreach teams, there are legal limits to the kinds of medical treatment which can be given and it is far from ideal.

But nothing prevents the Magistrates bailing the patient from court to re-appear at the Crown Court and stipulating a condition to bail that the person reside at the hospital which the assessing AMHP will have arranged for the admission previously indicated as necessary.  When an AMHP has two medical recommendations for admission following MHA assessment, they last for fourteen days and nothing prevents the (senior) investigating officer informing the prosecutor something along the following lines:

“Whilst in police custody, the patient was assessed under the Mental Health Act and it was suggested that the nature and degree of the defendant’s mental disorder made it appropriate for him to be in hospital for treatment under section [2 or 3].  However, because there was sufficient evidence to charge the defendant with serious offences and in order to balance his right to treatment and care with issues of public protection and the administration of justice, he has been charged and brought before the court.  It is recommended that you advise the court to consider granting bail with strict conditions that the defendant remain at [name of mental health unit], pending his appearance in the Crown Court and admission along these lines has been prepared for by mental health services, if bail is granted.  Following subsequent appearance in the Crown Court, the judge may make such direction under Part III MHA, as they see fit for the proper handling of the case ahead of trial.”


  • What about the situation in which there is no bed available within the NHS? – we know that bed numbers have been cut, radically so in some areas of the UK.  Although it’s not a very fair argument to say “You’re being prosecuted because of NHS bed shortages”, there are some real situations in which the police decision is “prosecute or release from custody.”  We’re back to the least worst option: clearly, if we are talking about vulnerable people who are alleged to have committed serious offences, the public interest may indicate prosecution in those circumstances because you can’t have someone sitting in custody for days whilst a bed is found.
  • What about the situation in which the only beds available in the NHS are in non-secure units from which the suspect has previous absented themselves with ease? – I can imagine the furor which would follow someone charged with a serious offence who had absented themselves from somewhere that was inadequately placed to ensure ongoing detention; especially if there was a subsequent serious incident of any description.  I often check the AWOL histories of people who are arrested for offences when it comes to the “diversion” decision.  Why would I divert someone from justice who has a history of not engaging with the very health structures to which they would be diverted?
  • What about the situation in which the patient’s forensic mental health history indicates to the assessing mental health professionals that prosecution and the use of Part III of the MHA would be most appropriately – we should remember, that when a patient is detained in hospital under Part II of the Act (sections 2 or 3, most usually), there is no automatic requirement on the responsible clinician to prepare psychiatric reports for the court process and to get into assessment of issues like fitness to plead or stand trial.

There have been recent examples I have known where police custody has reached a point where someone’s MHA admission is indicated at a point where the (senior) investigating officer has obtained sufficient evidence to charge and CPS authority to do so.  In those cases where someone being “sectioned” has taken the priority, it has been because of the availability of a medium-secure bed and because opting for admission has allowed for arrangements to be made that the person will be charged to directly appear in the Crown Court, thus allowing the judge to exercise powers under s35 or s36, as appropriate.  If these arrangements are not available, it may necessitate having to take a difficult decision which initially appears to disregard someone’s health.  It is a regretable aspect of the criminal justice system, that mere exposure to it can cause stress and aggravation to know conditions.  This is true for everyone, not just defendants with known mental health histories.


So sergeants in custody, must take decisions based upon a combination of views from the assessing MH professionals and the (senior) investigating officer:

  • Bail the suspect s37(2) PACE and admission under Part II takes effect – the (senior) investigating officer can either then manage bail for a necessary period until the suspect can return to custody and be charged; OR can arrange to postal charge the suspect whilst they remain in hospital.
  • Charge the suspect to court and bail them after charge, allowing admission under Part II to take effect – this could be accompanied by the use of conditions, negotiated with the MH professionals so that no circumstances beyond the control of the defendant lead to them breaching conditions without blame.
  • Charge the suspect to court and deny bail after charge for early appearance at court – whilst indicating to the Magistrates that admission was indicated and suggesting they consider bailing the defendant to hospital for appearance at the Crown Court.

One thing beyond the control of the police in the last option is the possibility that the Magistrates’ Court may remand the defendant to prison – it has been known.  Were they to do so, it would then be open to the Prison Service to apply for the defendant’s transfer to hospital under s48 MHA, based upon the original mental health assessment in custody.  Again, far from ideal.

I have written about a Liaison and Diversion model for police decision-making that brings about these considerations – all of this is just food for thought.

IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


3 thoughts on “Fit To Be Charged

  1. Why is allowing a person To go to prison and then use of s48 considered so wrong?
    Prisons have hospital wings and most wards seem to offer little more than prison anyway.

    1. I agree – where serious offences are involved, I don’t think it is necessarily wrong. That said, I do wish Magistrates had authority to remand s35/36 directly to hospital.

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