Contemplate the idea that a vulnerable person with mental health problems is arrested for a not-especially-serious offence. In custody the Force Medical Examiner suggests they are seriously unwell and may need admission to hospital under the Mental Health Act. An AMHP and a psychiatrist join the FME in assessing the person formally and it is decided that he or she requires admission to hospital under s2 MHA for assessment of their supposed mental disorder.
What now happens to the offence?
Well – if it was not-especially-serious and the person has never really been in trouble before, is there any public interest in prosecuting the offence? Probably not – maybe there would be utility in it if the offence had been murder but where the investigation had been into shoplifting or a minor assault, government policy suggests – in Home Office Circular 66/1990 – that diversion from justice is in order.
What if it were not the first arrest?
If someone is being repeatedly arrested, things may change. If the last arrest was also for minor matters and it was several years ago it may not but surely, if diversion has occured a handful of times or more, over a few of months or even years and there is an emerging pattern of admission-recovery-discharge-disengagement-crisis-arrest for ever-more-serious-or-more-frequent offences, then another approach may be justified? Certainly, more careful consideration is justified!
What if we’ve now seen a fifth person assaulted and / or a history of absconding from whichever mental health unit they were admitted to after diversion? Does it matter when determining whether someone should be or could be charged that they are sectionable under the MHA? – not necessarily. What if, within the arrests for offences, there are one or more detentions under section 136 MHA – diversion away from arrest – that also indicate a revolving door and an indication of rising levels of risk?
What if offences are escalating in seriousness?
We agreed above that if a one-off offence had involved a murder, the fact that someone is ‘sectionable’ wouldn’t prevent a prosecution. So somewhere between shoplifting and murder there appears to be a line – before this line we argue there is little public interest and seek to divert someone into health and social care services; afterwards we consider prosecution.
Incidentally, can we keep trying to find another word for ‘diversion’?! – diversion is NOT what this interface between mental health and criminal justice consistently does! I know the current government pilots are called ‘liaison and diversion’ but no-one seems to be able to answer this:
When are we liaising, when are we diverting; who is making this decision and how?!
Last month, we saw the publication of a report into the treatment and care of Philip SIMELANE in the lead up to the killing of Christina EDKINS in Birmingham in March 2013. You may remember the case because it was a very high-profile tragedy that touched us all and the heartache arising from it has been compounded by the report which indicated that Christina’s death was preventable. The report makes 51 recommendations to various agencies, including the police and CPS and I was very interested in it making case specific agency recommendations and broader, ‘national’ recommendations. In particular, I was fascinated by the suggestion that custody sergeants need to take a ‘longitudinal view’ of offending behaviour when suspects with mental health problems are in custody – fascinated because I’ve argued this for years, on this BLOG and elsewhere.
In other words, we should not look at each arrest and the potential appropriateness of diversion on an isolated basis – we should take a broader view of the risk / threat issues based upon a full understanding of offending, detentions and other health information of various kinds.
Disclaimer: Despite being a West Midlands Police officer I do not know anything about this case beyond that which can be read in the media. I was not involved in any way in the investigation or any of the previous arrests of Mr SIMELANE. I know nothing more than you.
What the report seems to be saying, is that where offenders with mental health problems come in to custody repeatedly, amidst a background of their families asking for their loved ones to be helped and supported because of mental health problems, the police and mental health services should look more closely at whether or not prosecution becomes necessary, given that this particular vulnerable person is arrested for offences more than once or twice and the latter stages they seem to indicate a concerning level or risk posed to people other than the patient. The police should consider all the previous arrests, detentions under the MHA as well as any other information that is available. This may include information about whether patients engage with mental health services or whether they abscond from admission under the MHA. It’s relevant, obviously!
What’s the point of doing again, something which has been tried already and failed? Little or none, say a lot of people. That said, if the offences are not escalating especially severely and if the it is not recurring especially frequently, then this dilemma can become difficult and very subjective.
INADVERTANTLY BUILDING RISK
If this report says anything to me, it says that we need to rethink our whole approach to ‘diversion’ (whatever that means). We need to remember that most people who offend whilst they are mentally ill do not offend because they are mentally ill. As such, one question that policy makers are yet to answer in anything like a convincing way is why we have special pre-charge arrangements for offenders with mental health problems when we lack equivalent options for any other particular groups, except children. Why are mentally disordered offenders distinct from other vulnerable adult groups, including those with addictions and substance misuse issues? Why do we build a criminal justice system with mechanisms that allow for the compulsion of mentally disordered offenders and then try as hard as we can not to use it, even in circumstances where we know that less restrictive options have been tried and failed or are wholly inappropriate?
This approach builds invisible risk into our criminal justice and mental health interface. It means that risk assessment of offenders in the future is less likely to take full account of risks known about today, because we’ve seen through cases like this how little previous contact with mental health and criminal justice will influence how offenders in custody are handled.
One other thing appeared within the report which concerend me, despite it’s intuitive nature: and it concerns the issue at the heart of many a homicide related treatment inquiry – information sharing. It was pointed out that whilst Philip SIMELANE was in custody he was assessed by doctors and nurses of various kinds and that this inforamtion was not routinely shared with his NHS clinical carers. As such, when NHS professionals were making risk related assessments about his mental health, they were unable to take advantage of this information and the report recommends the kind of routine information exchange that seems intuititive
SENSITIVE PERSONAL DATA
Of course, people are entitled to have their personal data protected and medical information is confidential just as criminal convinctions and police intelligence is confidential. Information that comes into the hands of the police (or their contracted medical providers) can only be routeinly shared with other people – the NHS – with the consent of the person concerned or where the criteria in the Data Protection Act 1998 are satisifed for disclosure without consent.
Buit the opposite is also true! … information and crime and offending which is known to the NHS can only be shared with the police, with consent, unless the criteria for disclosure without consent are met. So if a patient admits he has been stealing food from supermarkets whilst sleeping rough living in crisis, this remains confidential between patient and doctor unless the patient wants that informtaion disclosed – and who would?!
But if we’re going to get the police and the NHS into the routine sharing of what the law calls sensitive personal data, then we need to make sure that we are doing it lawfully. What if someone in custody for offence wants NOTHING of their arrest or health information made known to anyone else? – what if they were asked for consent to disclose and expressly stated they did not consent? Where is the lawful basis for disclosure? In many cases there would be one. In some, there would not.
As with everything important in life: no generalisations and all cases on their individual merits.
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