This is a much bandied about word – criminalisation – meaning various things to different people and academics have argued for some while about extent to which society now seeks to criminalise the vulnerable in managing the ways in which we access care. Two US academics in particular have written about this: Professor Linda TEPLIN who has argued we overly criminalise the vulnerable and Dr Melissa MORABITO who has argued the opposite. Each acknowledges various academics who came before them like Egon BITTNER who did research on police decision-making and on police mental health encounters in the 1960s.
So what do we mean by ‘criminalise’?!
It could mean a few different things, and this seems to be why TEPLIN and MORABITO disagree with each other. If you mean accessing care – or only being able to access care – via the criminal justice system, then you may have a point. We know of many cases over the years where families have seen their loved ones convicted after an offence only to then point out that they were asking for help well in advance of the crisis incident that led to offending behaviour. So the argument goes: you want / need help now but don’t manage to secure it, but you are forced into it after a serious untoward event: you have just been criminalised because you would not have had to go via that route for any of form of emergency medical assessment or care. This is an intuitive, quite instinctive type of definition: having to tolerate exposure to criminal justice agencies to a far greater degree than would have been experienced in any other area of health or wellbeing. This compares mental health with physical health and opens up the parity of esteem debate.
Conversely, it is argued that in a model of care that is a broadly deinstitutionalised, human rights-oriented model of community support, vulnerable people are, from time to time, going to have contact with police and criminal justice services. This is true of society as whole, so why would it not be true of those of us who live with mental health issues? The key thing to establish would be to assess and understand the extent to which this is different, for those in mental distress. Research by Melissa MORABITO pointed out that if you compare samples of contact with the police, samples of arrests and then of prosecutions, what you learn is that those members of society in distress are far less likely to be arrested or detained at all, more likely to be detained under mental health law if an immediately coercive intervention is required and less likely to be prosecuted if they were originally arrested for offences.
In other words, from her research and according to the definitions of criminalisation to which she works, mental health is a contributory factor to people being less criminalised than they otherwise would be if they were not unwell or in distress. So maybe it depends on whether you accept her premise that you measure criminalisation with reference to the extent to which we do it for those of us considered mentally disordered compared to the extent to which we do it for those who are not and compare the way the justice system treats each group. This approach obvious rests upon it being possible to define ‘mental disorder’ and ‘mentally disordered offender’, so that we can easily establish who is ‘in’ and who is ‘out’ of any approach whereby we need to distinguish. These definitions, as Jill PEAY points out in her remarkable book Mental Health and Crime (2010) survive attempts to be precisely defined, especially by definitions that survive contact with both law and medicine.
So which conceptual construct of ‘criminalisation’ works for you?!
THE CRIMINALISATION CONTINGENCY
This post arises from a Twitter exchange – passing reference to the above and my explaining that in some cases, you can get access to mental health services only if you are ‘in contact’ with the criminal justice system; or that access is faster if you are. What do I mean by this, given that I’ve argued for years that we do not have a fully functioning emergency mental health care system in the UK and that the police and criminal justice system plug gaps? Regardless of which of the academic debates you find more interesting, we do know that there are some services in the NHS that won’t touch you, unless the police are involved:
Think about section 135/6 ‘place of safety’ services – they exist purely and simply for those in immediate need of care or control who are detained by the police. You cannot access a PoS service, unless you are legally detained. So we have emergency mental health triage, care and assessment for those who may not want it, but where is that equivalent for those who do? Well, it’s available via your GP or Accident & Emergency but neither of these involves direct access to specialist mental health professionals. If you happen to be under the care of a mental health trust already, you may be able to access the Crisis Team, but their ability to respond to your needs will depend on many things and we know that such services are experiencing large increases in demand at a time where budgets are shrinking. But PoS services are an example of rapid access to assessment / care, only for those who are in contact with the police and legally detained by them. Otherwise, you can sit in A&E and hope to be seen – if you can wait that long and aren’t put off by the idea of waiting a long time.
There are other examples: I’ve known several detentions in police custody where mental health professionals have suggested that certain types of care are required, but have requested that the police prosecute patients in order to ease their access to those services. I’ve never really understood why the legal framework to which someone is subjected should affect their ability to access a clinical service deemed necessary, but it’s happened so often over the years. If you’re legally detained under s2 or s36 of the Mental Health Act, you’re still legally detained against your will and can be treated accordingly under the law.
And this is the most important point to remember: whether or not the criminal justice system can stick that legal framework around you, is uncertain and nothing whatsoever to do with your health and wellbeing. I have numerous examples in my career, but I prefer to use the one of the young man who was arrested on suspicion of murdering his ex-girlfriend after a missing person enquiry led police to an address where they found the young man present and discovered her body there. He was very obviously mentally unwell and assessment immediately declared him unfit for interview and in need of urgent admission to hospital. Given his own history and the present circumstances, everyone was saying that medium secure care was needed and full forensic assessment.
This makes sense, doesn’t it? Requests were made for him to be charged with the offence but the senior investigating officer had to point out, that there was insufficient evidence to charge anyone at that stage. All the detectives had, in terms of criminal evidence, was the police having found a body in a house where a mentally ill young man was present and clear indications that the victim had been killed by someone else. That didn’t prove beyond all reasonable doubt that he killed her: forensic enquiries were not yet complete; he had not yet been interviewed about the matter because he was too unwell; and there were other enquiries still ongoing to gather other evidence.
FASTER ACCESS TO SPECIALIST CARE
So my only point here, is that some parts of our MH system are only open to those in contact with the police and that some other parts, prefer to see criminal justice frameworks imposed which are inherently unconnected to clinical need. And they prefer this, even if the legal criteria for criminal justice service intervention are not met. This was true in the MS v UK (2012) case.
A young man had, in all probability, seriously assaulted his aunt. She declined to support any kind of prosecution against him for his acts, knowing that he was seriously mentally unwell and just being glad the police had safeguarded him by using section 136 of the Mental Health Act. In custody, he was profoundly disturbed and unwell – as highlighted in the judgment – and the police and CPS did consider whether he should be prosecuted for an offence committed. It was determined that he could not be prosecuted, because there was no admissible evidence to place before a court: his aunt declined to support a prosecution and would not give evidence against him, there was no other corroborative evidence of any kind. And yet his prosecution was still requested for reasons that were partly connected to accessing a medium secure mental health bed. Presumably, the man either met the criteria for admission to an MSU or he didn’t? … we know that MSUs don’t only admit patients concerned in criminal proceedings.
This is what Linda TEPLIN would argue is criminalisation: accessing services via the criminal justice system when that wouldn’t be necessary for cancer or pediatric services. Where are the PoS services for those who know they need them? They don’t exist. Where are the specialist mental health services (like secure services and inpatient CAMHS) for those who have not been prosecuted by the police because opportunity to intervene early has been recognised either before an offence has been committed or before the evidence exists to prosecute someone? They often don’t exist. Doesn’t structuring mental health services’ access criteria around crime, offending and contact with criminal justice reinforce stigma and prejudice that mental health issues are implicitly linked to crime?
And it is against this backdrop that some of my concerns about street triage schemes rest. We know that in many cases, some of the demand for crisis intervention shifts to the police because people cannot access mental health services in a timely way. As BITTNER said, “Something’s happening that ought not to be happening about which someone ought to do something now.” The police, having been found wanting in some of their responses, have moved into close partnership working with mental health professionals and can now get a mental health nurse into the heart of the incident. We know from those schemes that have run for a couple of years, that many, if not most, of the incidents are resolved without the need for police intervention at all. For me, this raises questions about criminalisation: your crisis care now comes wrapped up in a police car with a security dimension in case you need to be coerced and it puts a dynamic into the incident that may not always help. I know why we’ve found ourselves doing it, but the extent to which people in crisis may want to be criminalised by implicitly coercive nursing care, I don’t know.
I put it out there, for what it’s worth. But what I do know, as with the American experience over the last twenty or thirty years, is we are finding increasingly inventive ways to weave together our mental health and criminal justice systems in an approach to crisis intervention that means they are starting to look the same as they see distress, dissent and different through a similar, blurred lens that is neither one thing, nor the other. And I also know that some patients don’t want the police to be involved in their mental health crisis – whether because of previous poor experiences, because of paranoid perceptions about the police or simply because it makes them feel like criminals because we wouldn’t call the police to become a routine part of any other kind of medical treatment.
That’s why we’re criminalising vulnerable people and leaving gaps in the system we operate through which people will fall.
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