When we hear some commentators discuss the impact upon policing of things like mental health related demands, we often hear the words of the Home Secretary tripped out to defend a preferred view that such things are not core police business. The Home Secretary said in a Police Federation conference that it was the role of the police to “reduce crime – nothing more, nothing less.” So given that some twenty percent of policing is connected to mental health and that the legal duty upon police officers does actually go much further than fighting crime, where does this leave us?
Well, plenty of things support a view that it leaves us in a position where we are still going to have to pick up demands connected to mental health, even where there is no obvious link to crime, directly or indirectly. Searching for and recovering AWOL patients, requests to attend inpatient wards to restrain patients(!) as well as conveyance requests alongside or in lieu of the ambulance service. We know of ongoing problems in many areas – not mine, I’m pleased to say! – of provision for those detained under section 136 of the Mental Health Act and we know that officers are particularly anxious about the potential that they could be the next ones to be suspended and criminally investigated following a death in custody.
So we can agree, there is a lot for us to complain about in our police stations. And we do, bolstered recently by things like the Adebowale Report which states “the police cannot do this alone.”
But the ultimate irony, as we bemoan the effect all this demand has upon our ability to fight crime, is that when the NHS get in to rooms without the police being present, one thing very high up their list of complaints about us is our unwillingness to fight crime at the intersection of these demands. Assaults on NHS mental health staff unprosecuted – often, not really investigated; decisions made not to prosecute offenders with mental health problems, despite clear professional opinion that it would both be possible and desirable in order to open up Part III of the Mental Health Act – provisions in there, only available to criminal courts, may better balance treatment and public protection; also there is a perception that the police think certain criminal obstructions of AMHPs should just be tolerated as they go about their statutory duties. I could go on.
I’ve seen this occur and have intervened to push things in other directions; I’ve heard officers recounting stories in good faith that show we really don’t get it.
So for officers who really do think they’re just here to fight crime, let’s look at the opportunities to do so.
In the last week alone, I have had numerous phone calls asking for advice about a situation after an incident, where officers wanted validation for their decision to do little or nothing to bring offenders to justice who had seriously offended. I’m talking multiple deliberate and sustained assaults on staff, thousands of pounds worth of damage, threats to people’s intimate wellbeing that looked planned for implementation. I have in each case, referred those things back to senior officers suggesting we went awry – either in the way we went about reaching that conclusion; or in the conclusion itself.
There is nothing that prevents the investigation, arrest and prosecution of offenders who are currently inpatients within the mental health system. Obviously, this remark is subject to the relevant tests of evidence and public interest – I’m very far away from saying that all offences should be prosecuted; I’m merely trying to make the point that it will be possible and necessary in just some cases. The challenge is to ensure we have a decent way or working out which cases should proceed from those that shouldn’t.
Seventy percent (70%) of last year’s assaults in the NHS were against mental health staff. Put this against approximately 2% in A&E and 2% against paramedics and technicians in our ambulance service. Focus upon that figure: seventy percent. I write it in words and numbers in case you thought it was a typing error: I really do mean that just under three-quarters or just over two-thirds of all assaults in the NHS. It must follow that someone of those incidents involved people who were criminally liable for their actions. But if you look at the number of formal sanctions, they are exceptionally low. Bear in mind, that the starting point of our criminal law is that
There are numerous blogs on this site about the details of how to go about this properly, which I won’t recount here. If you’re a response or neighbourhood policing officer, please read them. Suffice to say here, there are a couple of things I hear which make me want to put my head in my hands —
- Anything that includes assumptions that inpatient suspects cannot, ever be prosecuted —– and that they will always be too medically unfit to be detained in a police station under arrest for investigation and interview. Some will, some won’t – all case on their merits. Let’s be honest: if we responded to an incident where a patient had killed another patient or a member of staff, we’d arrest them and take them to custody. If we accept that it is then possible, why not consider this when someone has committed a s18 GBH or a serious sexual offence? I’m not saying it’s desirable, I’m saying it’s possible and occasionally, it may be necessary.
- Anything that includes tortured legal gobbledygook to justify shutting down investigations —– sentences or questions like “has he got the capacity to form the mens rea?” or anticipating issues that are not the business of investigators but are matters for a court. Even if you think that question about capacity and mens rea means anything at all (it doesn’t), why are you asking a nurse or doctor? You wouldn’t ring a lawyer to take advice about a medical problem or to see pharmacy advice, yet we’ll ask legal questions of medical staff and feel entitled to shut down the inquiry when they don’t / won’t / can’t answer!
Read the blogs I mentioned: you only need to do three things when reports are made of inpatient offending.
- Get relevant background information from the staff involved in the patient’s care.
- Preserve the evidence in the normal way (statements / CCTV) if the context means it is going to be proportionately investigated.
- Reach a decision based upon that evidence and the public interest as to how to proceed – either NFA, or CPS for a charging authority.
In other words – it’s no different to other kinds of crime investigation. Not at all!
OUTPATIENT OR NON-PATIENT OFFENDING
Offences alleged against people with potential mental health problems who are not currently inpatients is little different, except you may struggle a bit more with point 1, above. Depends on whether the person is known to mental health services and upon what outcome, if any, is reached in police custody about whether someone is so unwell that they need admission under the Mental Health Act to hospital. This is where Liaison and Diversion comes in.
But it is particular important than if suspects are arrested for criminal offences and decisions are taken about them being “diverted” (whatever that means) into the health system without being charged, that the police do not simply decide to take no further action at that stage. A lot of people who are diverted are admitted to hospital under s2 MHA (for assessment) and it may or may not become confirmed that they have a mental health problem. The police need to ensure that they follow-up outcomes with NHS staff before then deciding whether investigations should continue or be brough to an end and this should include requests for information broadly along the lines outlines above, for inpatients.
So custody sergeants have a very easy, yet important role to play to ensure people don’t fall into gaps and to ensure public protection: why not make it a matter of routine that all patients diverted from custody under the MHA after being arrested for an offence are given police bail (s37(2) PACE) for 30 days? This then allows a period for medical assessment and for follow-up by investigating officers with NHS staff who can then help to decide whether police bail should be cancelled or to prepare for them answering it. This simple step can ensure that we avoid what we see with some patient-offenders whose offending behaviour and mental health condition is never that serious, but who is in a cycle of crisis > arrest > admissions > discharge > relapse > crisis.
As an incidental point, don’t forget that there are several criminal offences within the Mental Health Act itself. Sections 126-129 cover them, but one of particular use to frontline officers who get frustrated to attempts to locate recover AWOL patients, is the offence under s128 MHA of harbouring or assisting an AWOL patient to become or remain absent. Always worth bearing in mind when families or friends are attempting or succeeding in obstructing the police in efforts to find and locate people. Also a useful thing to remind people of, should they find that patients come to them for help in remaining missing once they have absented themselves.
WHAT’S THE POINT OF ALL THIS?
Read again about the case of Christopher HAUGHTON. This case shows, more clearly than any other that springs to mind, the potential for unwell suspects to be taken all the way through the justice system and be held fully responsible despite them being so unwell that at all times, they reached the criteria for compulsory admission to hospital under the Mental Health Act. it is a case that should chime more with police officers, too – because he assaulted and tried to kill several officers in north London. many of whom were formally commended for their bravery (right).
Cases that we have seen time and again, show that the criminal justice system is set up to make fully informed decisions about offenders who have challenging and complex needs, but it takes thorough, proportionate investigations by the police, gathering appropriate information about background and context as they go about it. It requires officers to move beyond simplistic assumptions that “mentally unwell” means “not criminally responsible” and to recognise the potential for those parts of the Mental Health Act that provide for remands, assessment and sentencing of offenders with mental health problems, to provide potentially far better outcomes that balance the health needs of people like Christopher HAUGHTON with victims’ right of redress and the public’s right to protection from people who pose known risks. Understand for example, what “interim hospital orders” and “restricted hospital orders” are.
And if you see yourself as a crime fighter, this is all worth thinking about quite deeply – you start from the point set out by Lord Chief Justice TINDALL after the case of Daniel M’NAGHTEN:
“Every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”
And once you do, you will see that there is plenty of crime to “fight” within and connected to our mental health system.
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