When is it acceptable to criminalise a child who is already detained under the Mental Health Act within our secure mental health system?
I asked this question on Twitter and it did amaze me, quite frankly, that I didn’t get a single reply saying ‘never’. It surprises me that no-one thought that – but that’s our cultural heritage for you and we need to see it in those terms. I remember a lecture on comparative criminology when I did my MSc in which Prof David NELKEN was talking about the difficulties in comparing criminological and legal approaches to the kind of deviance we call ‘crime’. Citing the Jamie BULGER murder, he pointed out that there have been murders in Europe where children have killed other children and the criminal justice system was barely involved, not least because the killers were not old enough to bear legal responsibility for their actions in those places. Some European countries were very surprised that those two boys were prosecuted in an adult crown court for murder when so many things had obviously gone very wrong for them. Children cannot be prosecuted until they are 14 or 15 years old in many continental jurisdiction but in the United Kingdom, it is 10 years old. When I first joined the police, we had the doli incapax presumption that no-one between the ages of 10 and 14 could be held responsible unless it could be established that they had the maturity to know the difference between right and wrong, between truth and lies, etc., but that was abolished by the Crime and Disorder Act 1998.
We need to remember how much of our attitude to towards what we typically think of as objective truths about crime and punishment are in fact just socially constructed and cultural attitudes, many of which don’t serve us well as we increasingly seek to criminalise. There is an operating presumption that the criminal justice system should not be the first way that we try to respond to children who offend. The Youth Justice System differs in very clear ways from the adult criminal justice system, not least in how use can and should be made of diversion from justice, not just for children with mental health needs. There is greater use of so-called ‘cautions’, fewer punitive sanctions and more rehabilitative ones which involve referral and supervision from other non-CJS agencies. Children should be prosecuted sparingly and even then, with a view to preventing re-offending through emphasis on rehabilitation.
I’ve written about many of these issues before, but not with specific regard to children, this post should be seen as amplifying the points made previously. Where does this leave our original question about children who are mentally ill, who assault NHS staff on inpatient wards?
THINGS GOING AWRY
I heard recently of a young woman who had been connected to seventy-one patient-on-staff assaults in a period of four years. On twenty-one occasions, the police were called and on seventeen of those, they gathered sufficient evidence to persuade the CPS to authorise charges for what were mainly low-level assault offences, with one grievous bolidy harm offence. The girl was convicted of them all, receiving a range of low-end sentences from absolute and conditional discharges, to minor fines. This was held up as an example of how things were not quite right, and hadn’t taken into account the effect on NHS staff and the other associated costs to the public sector of staff sickness, compensation claims, agency staff to back-fill the ward rota, etc.. There were various questions that arose for me, from all of that.
Regardless of them, I couldn’t help but think this: a young woman was detained in a secure MH unit, the police were called to a about one-third of the occasions where she assaulted staff, they gathered evidence sufficient to launch a prosecution over seventy percent of the time and she was convicted of them all. If we’re into criminalising mentally unwell children, then this sounds like a reasonable success rate to me. It seemed that the problem was the sentencing: not severe enough to reflect the overall circumstances. Bear in mind this is not a young man throwing chips and gravy at people down the off-licence and assaulting and abusing them, this is a mentally ill child, detained for years in an institution. The sentencing seemed to be what you would expect to see, bearing in mind the Magistrates in the Youth Court would be unable to make use of some of the sentencing options, because the child was detained in hospital under the MHA. So this all gives rise to certain thoughts —
We know from various sources that mental health wards can often be under-staffed, sometimes by staff who are not always trained in control and restraint; we know that some alleged assaults take place in that context. We know that some mental health wards are over-filled with occupancy often exceeding 100% – various people and inquiries are looking at this and associated issues, currently. We know from research, that anti-therapeutic environments within mental health units can be correlated, if not causally linked, to increased levels of violence – what effect should any of these factors have upon decisions to prosecuted mentally ill children, if any? It wouldn’t be irrelevant to assessing the public interest factors in any potential prosecution to know whether a child was in a (relatively) calm, well run, well staffed unit by staff who were properly trained and that the ward wasn’t fuller than it should be. If the opposite were true, surely that would affect our view of things?
Magistrates have comparatively limited sentencing options for juveniles who appear before them in the Youth Court and some of those options are diversionary in nature – referrals and supervision orders. They are intended to refer children and their families to support agencies but some of them are not appropriate sentences for children who are already legally detained in hospital under the MHA. Even the potential that the Youth Justice System could send a child to ‘prison’ by sending them to a Young Offenders Institute would be far less likely given the custodial nature of that child’s present living conditions. So this gets back to absolute and conditional discharges, along with fines. Remember, it is law to try to keep young people out of the justice system altogether, as far as possible and activity within the justice system is aimed at rehabilitation and recovery, not necessarily primarily at punishment.
When I asked the opening question on Twitter, I received a range of answers about when prosecutions should occur: the most popular responses were variously worded versions of this: “when the person knows that they are doing is wrong and their actions are unconnected to their mental illness.” Taking that at face value, I suggest the sophistication of our approach needs to improve. What if a child – or for that matter any mental health inpatient – killed a nurse, as we tragically saw in Gloucester last year. What if the clinician overseeing that person’s care had said, “He suffers paranoia, delusions and auditory command hallucinations to hurt people.” Are we suggesting he should not be prosecuted because his actions were “connected to his mental illness”?! What if a 13yr old boy, detained under s3 MHA threw a coffee mug at a wall for reasons that staff were sure were unconnected to his condition after being admitted because he had started to seriously harm following years of sexual abuse at the hands of other professionals in his life? Are we seriously suggesting he should be prosecuted because his actions were “unconnected to his mental illness?”
The police don’t prosecute most of the people that we catch breaking the law: it is a constitutionally accepted point that officers – and CPS lawyers – exercise discretion in their response. So there needs to be discussion, especially in the CAMHS system, of other things that can be done, some of which may well involve the police. Most officers have that story from their early careers where they caught some young person breaking the law in a minor way and they took them back to their parents, explained the circumstances and the fact that arresting them would be legal and left it with parents to sort out. Most of us remember thinking, “His Dad will have far more of an impact than I ever could and immediate repercussions will last longer, too.” Perhaps we need greater police involvement and support to the NHS system, especially the CAMHS system, but not necessarily with a focus on prosecutions. After all, schools based police officers don’t undertake their work with the aim of prosecuting more, but with a view to achieving the broader aims of the Youth Justice System, in conjunction with teachers.
EVOLVING OUR THINKING
The NHS has been in a process of evolving how it thinks about the relationship between mental ill-health and criminal offending at least since I joined the police. As a PC I policed an area which had a large, inpatient mental health unit for adults which included a Psychiatric Intensive Care Unit. As a Sergeant my area covered a regional, tier-4 CAMHS service. Not once in all the times we were called to hospitals were we asked to prosecute a patient for anything – in fact, I was never, ever called operationally to the CAMHS unit. In the adult unit we assisted with seclusions, transfers, even with calls to restrain patients that staff wanted to medicate forcibly, which is something we now wouldn’t do. We met staff who had been threatened and assaulted and even asked on some occasions why they don’t prosecute patients. “It’s part of the job” was an answer I heard on more than one occasion.
But by the time I became an inspector where my area covered a regional medium secure unit, another large adult facility with a PICU as well as another A&E department, things were changing. Calls to prosecute were common place, not only for serious offences like GBH or sexual violence, which I can fully understand. It was this period where my infamous ‘coffee mug’ example comes from: can you prosecute this patient, he’s broken a coffee mug by throwing it at a wall. There was no aggravating or contextual factors to help better understand this: it wasn’t that he was trying to cause serious injury to a nurse who ducked, or that he’d done it a hundred times before, or that he’d caused thousands of pounds of damage. Cost to the NHS was about £2. I didn’t understand it then and I don’t understand it now.
If you look at NHS Protect’s own figures, they show how confused the NHS is, across the whole country, about the relationships between mental health and crime. In their 2014 statistics, you can see in the mental health sector figures that one mental health trust in London thinks that all of its assaults on staff ‘involve medical factors’; another thinks that none of their assaults do and a third trust thinks about half of them do. What chance that these are all correct and that no organisational, cultural or attitudinal factors are at play? You could look at other MH trusts and wonder the same questions. What assessment done, if any, about institutional factors that may have given rise to this: safe staffing levels; environment factors, etc.? I’m sure that NICE are not busy writing guidelines about staffing in mental health services just to reinforce that it is currently always about right.
WHAT AM I NOT SAYING
I am not saying there is no role for the prosecution of inpatients, or even for CAMHS inpatients. I am saying that we cannot expect justice outcomes for mentally ill children that would not be seen for non-mentally ill children. Those detained in the secure mental health system are already stigmatised to a huge degree, it cannot be right that they face prosecution in circumstances where other children wouldn’t or that they face harsher sentencing than children as a whole. Nor am I saying that prosecution in the public interest isn’t needed to ensure that for children or adults who pose a serious risk of harm to the public couldn’t be considered by the courts for relevant orders under Part III of the Mental Health Act that include dimensions and features designed to protect the broader public. But we also need to recognise a dichotomy: so often during investigations in police custody, we assume that people should not or cannot be prosecuted if they meet the threshold to be admitted as an inpatient under the MHA. Even where such suspects were bailed upon their MHA admission, that assumption often pervades further into their mental health care. Then when a nurse or doctor is assaulted, we suddenly see requests for prosecution that were not recommended upon their original arrest, let’s say for assaulting someone else. This is a contradiction we need to do more work on.
We need to be aware that we live in a system that often criminalises people to a far greater degree than elsewhere and often without a comparable impact on offending or re-offending. There is quite a bit of sociology and criminology to read on this topic. As has quite often been said about a range of somewhat intractable difficulties: young can’t always arrest your way out of long-term sustained problems. Policing, criminal justice and short-term safety nets underpinning other forms of social justice: they are not the primary delivery mechanisms of social justice. Policing and criminal justice is what happens after other things have already failed. It’s time to start making sure they don’t fail in the first place, especially where vulnerable children are concerned. And here’s a final truth: prosecuting someone for violence doesn’t un-assault the victim; that victim remains assaulted. If we were serious about prevention, then we’d put the effort into achieving it. As things stand, we seem to think that prosecuting people gives us a proxy outcome that repairs damage and with violent offending at least, we know this is not true.
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