A Public Nuisance?

A scenario for you:  999 services are called to a person on a bridge, either over a major road or a railway line, and the person is either overtly threatening suicide or has been doing or saying things which mean it must be presumed that a possible reason for being where they are is the potential that they will jump.

Some of these situations are very public:  it was a major motorway, the M5 just west of Birmingham, the last time I was directly in charge of one of these events.  My sergeants have since dealt with several and I can assure you that the second thing going through officers’ minds concerning the background is the potential that we’re dealing with a vulnerable person with complex needs, probably connected to mental health disorders, possibly connected to the use or abuse of drugs or alcohol prior to the event.  The first thoughts are always about wrapping a security blanket around the incident so harm is minimised – bringing the motorway to a halt, getting the trains stopped, diverting passersby, etc., etc..

Some law for you –

• Anyone on a bridge in these circumstances would be in a place to which the public have access, so assuming the other criteria are met, section 136 of the Mental Health Act is in play should it be required.

• But it is not the only piece of law for this event:
• It is a criminal offence contrary to s22A of the Road Traffic Act to put yourself on or over a road, causing a danger to road users.
• It is a criminal offence contrary to s34 of the Offences Against the Person Act 1861, to wilfully endanger the users
• It is a criminal offence, contrary to common law, to cause “a public nuisance” – this is an offence where injury, loss, damage or inconvenience is suffered by the community as whole, rather than one or more specific victims.

So, having attended the incident and wrapped a security blanket around it, the police would commence the process of attempting to get the person on the bridge down, almost certainly by negotiation and this may involve specialist crisis negotiators taking over from the first uniformed officers at the scene.  Assuming we get to a position where the person is persuaded, the attending officers then have two important decisions to make:

1. Whether to detain the person under one of the laws, above;
2. And if so, which one?!

If we remember that officers will be thinking about mental disorders and vulnerabilities and information may have come to light during the incident that confirms a service-user’s background or personal history, section 136 of the Mental Health Act has been used a lot.  This leads to a non-criminalising assessment, we hope in a hospital, which will identify someone’s health and social care needs; either for the first time or in a way which establishes whether current care arrangements are sufficient.

WHEN MAY IT BECOME NECESSARY TO CRIMINALISE?

So given all of this, when would it be acceptable to arrest someone for one of the offences above, instead of using the Mental Health Act?  Some would say never.  When I tweeted an article earlier today, the reaction was almost unanimous –

• “Sounds like that man needs a thorough mental Health assessment and ongoing treatment – not arresting.”
• “Sounds like maybe a lot of money & distress could have been saved by providing him with a proper MH service.”
• “Clearly the man needs urgent medical & mental health treatment, not arresting for being a ‘nuisance’.”
• “Is this really the attitude the police are trained to have towards suicidal people?”

Of course it doesn’t help the debate about the important issues, that the article is badly written and implicity pejorative throughout, but few of us would disagree with the thrust of the notion that where possible, a compassionate route to assessment and care would be best.  So the rest of this blog is about a really controversial idea – the idea of criminalising a person who is clearly at risk for several potential reasons.

What if this was not the first time such an incident had happened? – what if following previous incidents, section 136 of the MHA had been used several times and thorough assessment had occured.  Perhaps the person was repeatedly found not to be suffering from a mental disorder, but had an alcohol abuse problem.  << This is a real example.  Support services were offered, but the MHA cannot provide a legal framework of compulsion by virtue only of alcohol use / abuse.

What if the person was quite well-known to mental health services and thought to be suffering from a personality disorder? – despite a few admissions under the MHA earlier in their lives, it had been deemed correct to provide community care and support, not always welcomed as sufficient, but repeatedly the path offered after ongoing s136 detentions.  << Again, a real example where MHA detention was thought to be counter-productive in the long-term.  Eventually, it was never selected as an option, but incidents kept occurring.

At what point do the police service have a right to say that diversionary approaches to treatment and care, to support and assistance, have been attempted and we cannot continue to keep making the same response to a situation which is not providing a long-term solution to behaviour which continues to put people at risk?

CRIMINALISATION

I cannot think of a single example where the response to an event of this kind appearing to be “one-off” has led to a criminalising outcome – it’s always section 136 of the Mental Health Act or non-coercive route into a health or care pathway, like being taken to A&E.  Health assessment whilst not under arrest having occured, referrals, support or admission was offered where appropriate.  I can only think of examples of criminalisation occurring where those health pathways had been tried and failed, for whatever reason.

Now it maybe that in some situations, the care or support offered was inadequate or perceived to be inadequate and to the extent that putting yourself on a bridge is obviously a cry for help, if that help is perceived as insufficient, it doesn’t matter whether it is considered the appropriate therapeutic or clinical response by the professionals offering it.  But where there are ongoing risks to public safety, where individual autonomy and dignity has been previously prioritised, what potential does the criminal justice system offer?

I have written before, very early in the blog’s life, about criminalisation.  My view, is that it is the role of the police to take intelligent decisions about whether and when to criminalise people and research going back fifty years shows that the police will usually choose a diversionary response to “deviance” (deliberately chosen as being both non-medical and non-legal language) where it is thought attributable to mental health problems and / or to substance abuse.  In fact, depending on how you define “criminalisation”, it has been argued that the police actually under-criminalise vulnerable people, compared to the general population.

But the criminal justice system offers things that the mental health system doesn’t.  For a start, courts can impose various kinds of orders upon those convicted of offences and where mitigation is offered that offending arose from drug, alcohol or mental health problems, it often is.  This can include drug / testing and treatment orders, mental health treatment requirements and anti-social behaviour orders with various conditions around relevant background triggers.  Obviously the probation service will on occasions supplement mental health services in monitoring them and the courts retain a role in handling breaches of orders.

Perhaps more obviously, the courts can send the message that however caused and however mitigated, offending behaviour will have certain restrictive consequences.  Although we will not enjoy the story, in one case of this kind about seven years ago, I remember we prosecuted a young woman with a history of alcohol abuse and a diagnosis of personality disorder, and the brief period of imprisonment whilst on remand the bridge incidents which kept shutting the M5 at rush hour just stopped.

Here is something even more controversial – for some patients with certain types of mental health disorder, I have heard it repeatedly said by a whole range of health and social care professionals, as well as criminal justice professionals, that ensuring people face consequences for their actions can be inherently therapeutic.  I’ve even heard the phrase “therapeutic jurisprudence.”

THERAPEUTIC JURISPRUDENCE

So when may it be correct to criminalise an apparently vulnerable person, found sitting on a bridge threatening or intimating suicide? – 

My answer is that it may be necessary if the history of that individual is well enough understood for us to know that other, diversionary based approaches to ensuring social justice have been tried and failed.  There comes a point where the balance between individual autonomy and rights to access treatment and care, conflict with broader issues of public protection.  There comes a point where an individual who is continuously putting themselves at risk, not to mention those using road / rail networks, deserves to be protected and if this cannot, for whatever reason, be achieved without the criminal justice system, then it deserves a chance to work.

It is not perfect – nothing is.  But those of us who have attended these incidents where someone has not been safely negotiated down have often wondered whether a different approach to the second or subsequent example might have led to a different outcome.  Some of these complex cases have shown that where legal orders, prohibitions and compulsions are ensured via the courts and the police, real human benefits can occur.

So the idea of prosecuting someone is not purely about automated, inhumane responses and the reinforcement of stigma – it can be about human dignity and public safety, as a last resort.

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

Winner of the Mind Digital Media Award

 

All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown, 2013

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I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

Government legislation website – www.legislation.gov.uk