For as long as I’ve worked in this area, the issue most often highlighted to me as being the one where the police, probably need to improve has been that of criminal investigation of hospital inpatients where they have allegedly assaulted NHS staff. There has been some recent activity on this issue and those of you attending the College of Policing’s conference on 24th May in Warwickshire will have the chance to hear more about it from NHS Protect, the organisation who oversee many of the security and assault issues in the NHS. NHS Protect have released annual statistics on assaults in the NHS for many years, the most current detailed format of them having been around for about five years, thus their recent five year summary document.
One thing that has long interested me in the format of data recording is the requirement over the last five years or so that following an incident of alleged assault in the NHS, there should be an indication given of whether or not it was believed to be an assault ‘involving medical factors’. First of all, I’m interested in what this means: if a drunk man is being treated in A&E for a suspeced broken arm after falling down following a gallon of something invigorating, does it involve medical factors if the lashing out was a direct result of staff manipulating his injured arm during the process of assessment, accidentally causing pain to him that he wasn’t expecting? Repeat that story with a dementia patient who is not intoxicated and doesn’t it change anything?
The NHS Protect’s definition of ‘medical factors’ is more or less the legal definition of insanity, “That the person did not know what they were doing or did not know what they were doing is wrong owing to illness, injury or mental disorder.” So let’s see what the NHS Trusts themselves say about their assaults, becuase it’s extremely interesting and it has the potential to affect investigations. If you haven’t already worked it out, you’ll see by the end that I’m arguing the definition of medical factors isn’t one that helps the interface with the police and it isn’t one that’s gets NHS staff to where the NHS seems to want to be, when thinking about what to report.
NHS MH TRUST DATA
West London Mental Health Trust and Cheshire and Wirral Partnership Trust each reported in the latest statistics that all of their assaults involve medical factors: that none of their patients knew what they were doing when they assaulted staff – or if they did, they did not know it was wrong because of their condition. Meanwhile in other news, Nottinghamshire Healthcare and Oxleas NHS Foundation Trust believe that none of their alleged assaults involved medical factors – all of their patients knew what they were doing. How likely is it, in major mental health trusts, that all of these returns to NHS Protect are correct?! … what is the major difference between the service users of Ealing and Greenwich that puts them poles apart?! I don’t believe it, quite frankly. When the latest data came out, I mentioned some of this on Twitter and to their credit, Nottinghamshire Healthcare responded to being tagged and invited me to email them. Suffice to say, they deliberately don’t answer the question at all – they didn’t say why – and this shows up in the return as a 100%, ‘no medical factors’ report. I didn’t get a response from the others.
So the next time a West London mental health nurse is punched and as part of the inquiry the investigating officer asks the question about medical factors and how that will be recorded in SIRS (NHS Protect incident reporting IT), it could – potentially – undermine efforts to prosecute. It also means that if investigations are being conducted by the same Metropolitan Police detective in Ealing and Greenwich, he or she will be about as confused as they ever hoped to be about what on earth is going on! As part of the investigation, is it not relevant to overall considerations that someone with clinical qualifications in the organisation the victim works for is saying that the accused person did or did not not know what they were doing or did not know what they were doing was wrong? … how could it not be relevant?!
Meanwhile in the other trusts, are we potenitally opening up the possibility of criminalising people who have been recorded as not having a relevant medical factor, when in fact, they do? … where is the middle ground and the likely reality? The NICE Guidelines on Violence suggest that less than 10% of mentally disordered offenders have offended as a direct consequence of their mental disorder. One of the Oxford Pocket Handbook series for doctors says that “most people who are violent need a policeman [sic] not a doctor” – of course, a different way of saying the same thing is that some people who are violent need a doctor not a police officer, but that determination is where the heart of this stuff is presumed to be. It strikes me that trusts like Birmingham & Solihull NHS foundation trust may have it right: their data more or less reflect this idea that in 10% of cases, the suspect may have offended as a direct result of their condition.
Of course, if we’re getting into the more interesting and high-hanging fruit of this debate, whether or not someone knew what they were doing is not always the crucial factor. If a s2 patient in an acute admission unit stabs a member of staff with a weapon, we can safely say they’ll be going to court soon – if they were legally insane, this is something for them to raise in court as a defence and it then still allows the court to consider disposals under Part III of the Mental Health Act and to secure reports from forensic psychiatrists and to impose remands or interim orders ahead of deciding the final outcome. Whereas if they’d pushed a nurse without causing any injury, whilst being secluded and still acutely unwell, if they did not know what they were doing was wrong, we’re far less likely to see charges brought.
I often wonder whether we’re over-simplifying things: I also wonder whether we’re over complicating it – as has always been the case with any criminal investigation into the alleged culpability of a suspect who is detained in a hospital, we’re attempting to establish whether a fist hit a face and whether or not we can prove the person who did it was intending to hurt or injure the person they’ve struck. (For the pedants, that last sentence was intended to paraphrase and generalise about the mens rea for all assaults – I understand it’s more specific than that, depending on the precise allegation!). The insanity concept is helpful to pre-emit issues of public interest but only where public protection is not at risk.
This stuff matters because the police do, in my opinion, need to get better at investigating criminal offences involving those of use who live with mental health conditions but we know they need background information and opinion from the NHS to help that along. We know that the attrition rate in the criminal justice system for victims with mental health problems is worse than for victims generally: and yet we also know that those of us with mental health problems are more likely to be victim of crime in the first place. But the suspect stuff is – in my own opinion – the most interesting sub-topic in all of policing and mental health:
When is it appropriate to criminalise a person for an action that was committed whilst they were mentally disordered to such an extent that they were liable to detention in hospital under the Mental Health Act?
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