The Public Interest

I keep encountering stories of incidents where potentially very serious crimes may have been committed and the criminal justice system appears to take no action because we have ‘transferred the person into the care of mental health professionals’ or similar.  Responses to crime where we fully and completely divert people into the mental health system without necessarily knowing the nature of the relationship between a suspects mental disorder and the act they are alleged to have committed.  That is, if there was any relationship at all.  I first wondered about all this when I was a custody sergeant – it seemed to me that if someone came into custody for an offence with mental health problems, they were never prosecuted if they were thought so unwell on that day to need hospital admission.

It seems fair enough that we give priority in most circumstances to health issues, but surely that isn’t the end of it if the original offence is serious? … or where someone is offending a lot?!

It’s all about how police officers and prosecutors interpret Home Office Circular 66/1990.  This is the current – yes, the current! – government policy on diversion of mentally disordered offenders from the criminal justice system.  This document is now approaching its twenty-fourth birthday and has not been superseded or updated.  It’s really is worth clicking the link to see a facsimile copy of a typed document! … that is how old our current government policy is.

It’s all very twentieth century, along with our mental health laws.

IN THE PUBLIC INTEREST

I often wonder about crime incidents where no specific reference is made in the police press releases we see about what is going to happen next.  For example, a man in Essex recently discharged a high-powered air rifle towards police officers and mental health professionals who were there to conduct an assessment under the Mental Health Act.  Having shot at them nine times he was swiftly arrested but all we currently know is that he was sectioned.  What happens with the firearm side of things? … if you shoot at the police nine times you generally expect to face a judge at some point so I would always expect to hear why this isn’t happening or that the investigation is continuing pending more becoming known about the suspect’s mental ill-health.  It’s about the public understanding how they are protected from future armed threats without a prosecution that has the potential to imprison someone.

I use this merely as an example because of the wording of the media coverage: not being involved in this particular case it may well be that the investigation is ongoing and the man is on bail.  My point is that we don’t know because this sort of thing isn’t mentioned by press releases.  Some may be wondering what business it is of the public to know this information, given that someone being sectioned is a medical matter and attracts considerations of confidentiality?  We saw following the murder of Christina EDKINS in Birmingham (2013) a press release which announced the suspect had been sectioned and it made no reference to the investigation continuing – it inadvertently created the impression that him being sectioned was the end of the matter and there was a predictable public uproar, especially on social media.  Whether we like it or not, the investigation of and the police response to serious crime is something which attracts public interest and it is in the public interest to understand why some of us who offend seriously are not prosecuted.

You will notice in some other high-profile cases in recent days that we have been told suspects are retained on police bail after being sectioned under the Mental Health Act.  I would like to see this more often – it either reassures the public that matters are still looked into or ensures we explains why they’re not.  The recent examples include the 47-year-old man who was arrested for a bomb hoax on a Qatar Airlines flight into Manchester Airport; and also the 23-year-old woman who was arrested (by my response team) on Monday evening on suspicion of administering a noxious substance to numerous people in a residential care home.  In each case, the inquiry is still active despite the person being ‘sectioned’ and both police forces were content to say so.

This means that once psychiatrists have established the nature and degree of any mental disorder, they can then decide what support is required and whether or not a prolonged stay in hospital under s3 of the Act would be necessary.  In due course, investigating officers can determine whether the psychiatric issues and the broader circumstances of arrest still give rise to the need for a prosecution in the public interest.  If a prosecution does follow – which it usually should for indictable-only offences, those triable only in the Crown Court – then Part III of the Mental Health Act 1983 allows the courts all the options it needs to manage any risk to the public whilst still ensuring that people receive any necessary treatment or care.

OUTCOMES FROM DIVERSION

Let’s not forget this: diversion was never intended to mean that people responsible for serious offences do not face justice and in the main we do expect to see people charged where they have committed more serious matters.  Being charged and going to court does not presume guilt, but it does allow the courts to request full psychiatric reports and allows them to weigh the circumstances – criminal courts have a huge range of options available to them that are not available to the police and prosecutors or to doctors and AMHPs.  We should never forget that most people who are diverted from police custody under the MHA after arrest for an offence are under section 2 of the Act.  This simply means that mental health assessment is occurring against a certain. background and it may conclude that there is nothing to know. 

Examples exist of patients being sectioned only for the conclusion to be reached that they are not mentally disordered – at all!  So imagine if this conclusion was reached after someone had been arrested for a serious offence and then diverted? … what happens with that original allegation and the victim’s rights to justice?  Perhaps nothing, unless the suspect had been retained on police bail when sectioned or otherwise followed up by an investigating officer who didn’t close their mind to the possibility that someone’s mental health problem may be quite incidental and entirely unrelated to the original circumstances.  Perhaps more importantly, diverting people from justice and taking no formal action on criminal allegations assumes a relationship that often just isn’t there:  mental disorder does not usually cause criminal behaviour.  There are normally other contributory, far more important variables in play likes drugs and alcohol.  And even if you did have a case where someone’s mental disorder was a causative feature of a serious offence: Part III of the Mental Health Act may still have a role to play in balancing public protection and the right to treatment.

Hospital Orders are the main sentencing option in Part III – they authorise the inpatient admission of those who have committed acts of crime, irrespective of whether they were found guilty of an offence or whether they were thought to be insane or unfit to plead or stand trial.  The fact that hospital orders can be imposed both with and without conviction is what shows us that the law makes no assumption about the relationship between mental health and criminal offending.  Where a hospital order has been imposed – whether or not it was restricted under s41 – the person concerned will then be subject to MAPPA processes upon discharge from hospital.  MAPPA will ensure a risk management plan is drawn up after information sharing across relevant agencies and this will form the basis of ensuring as far as we can, that any risk of further offences is minimised.  But MAPPA only applies to mentally disordered offenders who have been made subject of a hospital order. 

If you don’t prosecute someone for something, you can’t get a hospital order which means they will never be subject to MAPPA and other risk management processes that the police service and probation services have.  All well and good if that offender was arrested for shoplifting in an isolated incident but not if they’ve shot at the police nine times causing the AMHP to be run for their life or if their offending behaviour is more serious and / or repetitive.

I’ve written specifically about my vision for liaison and diversion elsewhere on this blog and it addresses what I see as real shortcomings in the way we hear these new services currently framed.  We need to be thinking about potential sentencing outcomes and public protection frameworks when suspects are in police custody otherwise we will end up building hidden risks and that is not in the public interest.


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

Winner of the Mind Digital Media Award.


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14 thoughts on “The Public Interest

  1. I understand the points you are making but reading your post as a parent I feel sad – what about the impact of prosecution on mental health of the individual – is that not there in the guidance too? Or are you stating this approach you are suggesting is only for crown court offences not those heard in magistrates courts? How does this overlap with NHS insisting on zero tolerance prosecutions even if there mental health systems and services were deficient as you often describe?

    1. I’m suggesting a scale – this post focuses on the more serious offences and still opens up the possibility of diversion from justice. If you put the word ‘diversion’ into the top right hand search box, it will bring up various blogs on the wider subject. And if you click the link near the end on ‘liaison and diversion’ you will see my overall view on all offending.

      You’re quite right that the impact of prosecution on a suspect’s mental health is important. And if they were arrested for the very first time for shoplifting I don’t think anyone is suggesting prosecution is a good idea. But where that theft occured amidst a stabbing on the sccurity officer who attempted to detain the person and stop the theft, things become very different.

      So early, minor offences should absolutely lead to diversion from justice; very serious offences should be determinied by the courts and there needs to be a sliding scale in the middle to take account of seriousness and previous offences / diversion.

      Does that make sense?!

  2. As a CPN working in Criminal Justice I would like to respond. I am a Triage CPN and our first question is always one of “has an arrest-able offence been committed?”. If so, there are Mental Health workers, like me, at every point in the individual’s journey through criminal justice. We liaise with our Police team members and, between us, we look at all aspects i.e. seriousness of offence, mental state and capacity, public interests, risk etc. Most serious offences do result in Forensic Mental Health assessments. A rarely considered fact is that a mentally disordered offender, sentenced to hospital treatment, will face an extraordinary journey to gain discharge and, even then, this will be conditional. Their stay in hospital is often far longer than if they had gained a prison sentence too and after discharge they will be subject to intensive community follow up, always with the potential for recall to hospital. If a person’s mental health does indeed mitigate their crime then punishment isn’t right or just.
    I don’t believe (in our area at least) we are getting things wide of the mark, we seem to be gaining a fantastic, joined up approach, we’re cutting s136 detentions, people are put on far more appropriate pathways into mental health services. Another aside is ‘The Red Herring of Mental Health’ that is where a person, or people around them are shouting mental health, the job is marked as mental health but, when we arrive, it is clearly not the case. Yes they may be emotional, upset, angry and/or in great distress but there is not always a role for acute mental health services for those who are simply struggling to cope emotionally for whatever reason that may be. It is these cases where we consider we are really helping the Police to act accordingly, as they would for any of us who were causing issues due to our behavior. These cases are certainly not being diverted. In fact there are a few of the regular s136 cases who are now being diverted the other way… away from Mental Health! Finger pointing is counter productive.

    1. I’m sorry you seem to think I am ‘finger-pointing’ – I assume that’s what you mean with your final sentence? I have a few problems with your reply: firstly, there’s no such things as an ‘arrestable’ offence anymore and in any event the designation of that label in law never really did relate completely to concepts of seriousness. Stealing a mars bar was an arrestable offence – threatening to throw petrol bombs and causing fear of violence wasn’t. Furthermore, the House of Lords made it clear – if it wasn’t already – that ‘capacity’ is nothing whatsoever to do with criminal law when it comes to determining the potential for legal liabilities.

      I can’t agree with your claim that offences which are mitigated by someone’s mental health condition should not lead to punishment: mitigate doesn’t mean absolve or explain. Plenty of convicted killers have established mental health problems – some are fully convincted in law and still receive penal sentences despite their mental health problems; others are diverted at the sentencing stage into clinical settings. All cases on their individual merits.

      I’m also not sure you’re disagreeing with anything I’ve said: I didn’t use the words ‘mental health red herring’ but the post is replete with recognition and implication that we need proper input, assessment and clinical opinion. But like with all prosecution decisions: those are matters for justice officers like police and prosecutors as well as courts and juries. This post references and alludes to others where I’ve made exactly the point that many things that the police refer to as mental health problems are nothing of the sort.

      1. I’m sorry too, for the misunderstanding. The finger pointing I refer to is one of a general media led “the NHS are failing…” the Police are “bogged down with Mental Health…” I certainly didn’t mean to cause offence.

        Currently I believe Mental Health Services have never been easier to access. There is the ability to an almost immediate assessment and a tiered approach to urgency of follow up. The main issue is one of peoples demand for immediacy which usually comes mid crisis in the middle of the night. But this is off topic for this article.

        I apologise if my words aren’t entirely correct in terms of Policing language too. I do not need to be a Police officer, I am a nurse and one half of my team on Triage is a Police Officer. Together we are the Team. Equally, the officer doesn’t need to be a Mental Health professional. That’s what we bring to the party.

        I guess what I’m trying to say is that in most cases, most of the time, we seem to be making the right decision with the Law/Mental Health axis. People who have truly done something terrible that is the direct result of their mental health problem need treatment. Mitigate may be the wrong term but what I meant to say agrees with your reply…

        If someone stabs someone, regardless of their mental health, there is an issue of morality and values. They’ve crossed a line and rarely does a mental health problem cause someone to do such a thing. A lack of concern for the law or other people may do however which does require some form of rehabilitation above and beyond treatment for their mental health which may include criminal justice led interventions.

        I hope this is clearer. ‘A little knowledge is dangerous’ is a great example of an article highlighting the independent way we think at times when faced with the incredibly complex cases each shift. I certainly always attempt to consider my colleagues across agencies and the issues they may be facing in relation to each case. More discussion needed I feel.

    2. “Yes they may be emotional, upset, angry and/or in great distress but there is not always a role for acute mental health services for those who are simply struggling to cope emotionally for whatever reason that may be. It is these cases where we consider we are really helping the Police to act accordingly, as they would for any of us who were causing issues due to our behavior. These cases are certainly not being diverted. In fact there are a few of the regular s136 cases who are now being diverted the other way… away from Mental Health!”

      Let me guess; anyone who’s unfortunate enough to have ever received a personality disorder diagnosis, and already gets no help/support with their issues, gets no recognition of their difficulties? Wht about those with severe depression, trauma (complex, not allowed to be called ‘ptsd’) etc? Oh, they’re only ‘struggling to cope’, not actually deserving of sympathy or help!
      It’s no doubt someone like you who saw fit to prosecute me despite being so upset and begging for help to deal with the overwhleming pain inside that makes me unable to see straight at points. I begged for help, they said horrible things about me, mocked me, got me arrested when I asked for help and refused to leave til I spoke to someone. Do you think it helped, having no treatment, dealing with the legacy of trauma and terror, and being neglected aand laughed at and criminalised when I (non-violently) finally snapped?

      1. I don’t believe a Personality Disorder diagnosis is an unfortunate one. I agree that some may use the term dismissively but I am certainly not one of them. What I am clear about is that there are many different ways to support people who are struggling. there are many steps between the extremes of the debate, from Detention under Section 136 of ‘The Act’ to Arrest by the Police. Both of these are two opposite extremes with the same effect… incarceration of the individual. There are other options, other services and other ways to support people.

        The article we are commenting on is purely about those who have committed a crime. It doesn’t get close to differentiating between crimes and their impact on society. It is an opinion, part of the debate that needs to be open and out there.

        My main point in my reply to Mr Brown’s article is that sometimes people behave in a socially unacceptable way. They are not always suffering a mental health problem but they are sometimes labelled as such. I am working hard with the Police and other agencies to look at these cases and see how we can all work together to provide the best possible outcome.

        The clarity is, if you commit a crime you ought to be arrested. If you are mentally ill you need treatment. If you have a problem coping with life’s hurdles then you need contact with the appropriate support. All three are not mutually exclusive, they are all available in the current system and can coincide.

  3. I have to say I am still confused but I am talking about slightly different situations maybe- If someone is acutely ill and delusional and perhaps is said to have committed an offence which is due to their illness – how is that different from someone with a biochemical or organic condition which causes their behaviour to be not appropriate. My problem is that there is always this undercurrent of “bad undeserving behaviour” when in fact someone is ill. It is back to the philosophy of how mental illness is defined?

    1. It is easy to be confused. It is incredibly complex and one person’s view of how a person should be treated by law or health may not be another’s. Only by acting as joined up agencies with joint assessments and being transparent about our thoughts and processes can we make anything close to the right decisions.

      I don’t think there is one answer to fit all cases, so different are they all. Ultimately we are all working hard to make the best decisions to help the person in front of us at any one time.

      1. Folks, remember the words of Professor Jill PEAY (herself a psychologist AND barrister). She wrote in 2010 (in her awesome book Mental Health and Crime) that work done at the interface of mental health and criminal justice by professionals from any of those backgrounds is the most complex of all the work undertaken by those professions.

        The collision of language alone causes incredible problems before you get anywhere near working definitions of disease, distress or disent that survive contact with clinical and legal situations.

        Totally agree we’re working to make the best decision possible, but I honestly think there’s a real problem in defining what ‘best’ is when we know so little about this area at this point in time. So many health reports are devoid of considerations of justice and we’re far too plagued by simplistic assumptions. I fully accept that areas do have examples of good practice, but these are currently few and far between.

        Keep chipping away! – or as Tom PETTY quite rightly said – https://www.youtube.com/watch?v=nvlTJrNJ5lA 🙂

      2. For some reason there is no way to reply to your reply above, so here goes…

        You say: “If you have a problem coping with life’s hurdles then you need contact with the appropriate support”.
        I did not have a problem with ‘life’s hurdles’ as oppose to a mental health problem (although what’s the difference really?!). I had been depressed, suicidal and self-harmed to cope since mid-teens. I didn’t know I was depressed of course, just thought I was rubbish but had to stay alive to protect my younger sibling from the things that had hurt me so much.

        When I sought help I was randomly (ie. without proper assesment) [mis]labelled BPD, and refused all help and support – even homelessness services (this was around 2005). There was no “appropriate support” on offer at all – and they even used that old chestnut of “not engaging with services” despite there being no services to engaage with! (perhaps you can see why I said the PD diagnosis is “unfortunate”). I was verbally abused and in one case kicked as I knelt on the floor literally begging for help with the pain inside. They treated me like a piece of dirt to be brushed away distastefully asap. Needless to say a complaint got nowhere because I couldn’t remember specific times and dates, or even names in some cases, months later when I could face making a complaint (even though it would have been identifiable eg “the CPN who saw me in March”.). Even the stuff I could remember was overridden by them basically saying “it doesn’t match our notes” (well obviously they’re not going to write down what they’ve done wrong!) I was terrified of them all, the power they held but still needing them to help me.

        It was they who got me arrested (and charged) under the NHS ‘zero-tolerance’ policy (again I remind you it was non-violent, but they call shouting ‘violence’ and it snowballs and the abusive ones back each other up). Because I finally snapped.

        I am now in therapy suffering the effects of complex trauma, which began before I sought help but was greatly added to by the lack of help and actual barring from other services I was subject to (there were other events too that I could have escaped had I had housing/mental health support).

        I think it gets very complicated once you look at complex trauma and the things people may be dealing with, not having the same tolerance to stuff as they are already operating on ‘overdrive’ or unstably, if that makes sense. Ends up at the complex ‘free will’/nature/nurture style debate!… but I would definitely say from what I have seen people really suffering who need loads of support to change things for themselves end up in the criminal system (I will not call it justice in this instance). There must also be an awful lot of people like me who can identify the problems and ask for appropriate help early on but just not get it because the services are bad and being scaled back even more.

        None of the above is supposed to be inflammatory to your comment btw!, thanks for replying and the clarity.

      3. This is a reply to Myrtle. Your response seems familiar to me and is true and is not a rare occurrence. How do you give a counter view? As a relative I am trying to do this now with great difficulty. For example when nurses recorded my relative AWOL when voluntary; threatened to call the police for his verbal aggression when wanting to smoke outside etc when he was still voluntary. There seems to be a different vocabulary used by some nurses which is not scientific and not psychiatric. Patients are either a management problem or not. A psychologist once told me that he believed you could suffer PTSD from being an in-patient.
        Now there will be more cuts in funding more people will be excluded …….. more suicides in the community?

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