Medicalising and Criminalising

So, we’re still discussing the fallout of Sir Tom Winsor’s comments almost one week after they were made. A few of us have blogged our thoughts on this and many of you have commented on those posts and social medica more generally. We all share a view that there is a problem, but I’m not sure we share what it is, never mind a shared sense of what we should do about it. Some people have spent the week arguing that we are criminalising mental health and mental illness by relying upon the police to the extent that we do, but what I think has been interesting this week is the number of representations that we’ve got this the wrong way ’round: we’re not criminalising illness, we’re medicalising human behaviours.

Look at the literature on this stuff and you’ll see both positions well represented. The US academic Professor Linda Teplin did a lot of work in the 90s arguing about criminalisation; another US professor, Allan Horwitz wrote a book called ‘creating mental illness’ which argued we over-medicalise behaviour. Australian academic Deidre Grieg devoted a whole book to the discussion of one man and his journey through the mental health–criminal justice interface: Garry David from Melbourne ended up having a whole Act of Parliament targeted at him and him alone, given that politicians were unable reconcile the public safety issues that arose from their perception that neither system was able to keep citizens safe from obvious risks. Less academically, we see a public narrative about the relationship between mental health and crime that seems all too often to assume that if someone with a mental health problem has offended, they must have offended because they have a mental health problem.

Then we need to remember we’re not always discussing things fully: acuity of someone’s condition is rarely discussed – not everyone who is mentally ill is psychotic and unable to lead a full and meaningful life full of employment, family and personal responsibility. But a few are. When you compare a range of issues for those who are often unable to function because of serious mental illness you see differences in approach by mental health services and by the police and prisons, compared to where we see the police called to a person with a non-acute illness that neither affects their personal responsibility for actions undertaken or means they should necessarily be treated any differently by the police.

CRIMINALISATION

This word is used in a couple of different ways, so as ever, we need to be careful with this kind of terminology – apart from anything else, some people just don’t like it. I’ve been told to remove this word from reports I’ve written on a couple of occasions, because it’s a bit opaque unless you spend time explaining it. Do we mean a) whether a person’s attempts to secure care occured via the police or criminal justice system when they were prevented from just accessing it directly? Or do we mean b) the extent to which the police and criminal justice agencies take different types of decisions when in contact with someone who is thought to have a mental health condition than they otherwise would – and of course this could be to a greater or to a lesser extent than they otherwise would.

It’s certainly true to argue that we have some set-ups which now mean patients and mental health professionals think it’s easier to access care via the police than otherwise. Street Triage schemes have often reported that they feel other parts of the health system, from GPs to Community and Crisis Teams, are occasionally pushing demand towards the police for someone who is not what you might think of as someone needing policing services. This ‘normalises’ the involvement of the police in healthcare, about which many patients have things to say, if you ask them!

However, if you have a situation in which 100 people are alleged to have committed an offence, you’ll see the range of responses from the police from arrest, to warnings to cautions or criminal charges, as thought appropriate. However, if those situations involved individuals suspected to be mentally ill, we are less likely to see arrest and / or prosecution outcomes because of diversion or referral to health services. Does this mean we ARE criminalising illness because care access was via the police or NOT criminalising because the officers took punitive CJ decisions less often?  Depends on your politics (small p).

MEDICALISATION

The other perspective is to look at whether we’re medicalising behaviour. I will admit, I’m less aware of any research that has been done on this issue so if anyone reading this knows of any, please leave a comment below and let me know. But yet again, this could mean one of a couple of things. Are we a) arguing that there may only be a limited and indirect relationship between behaviour and the panoply of health conditions which can be aggravated by social factors, but that social, non-punitive responses can be better than traditional criminalisation and punishment-rehabilitation?  Or are we b) assuming a causal relationship between someone’s condition and their behaviour and arguing that if you address the underlying condition, you affect future behaviour – there is some evidence that this is true, however, certainly not for all types of mental health condition, all of the time.

Human beings will suffer very bad events in their lives which are entirely predictable and awful: bereavement is one that will affect most of us at some stage. Other people suffer from traumatic accidents and injuries, redundancy, abuse or divorce to list just some examples. All of us will struggle to some degree to cope with such matters when they happen, but this does not automatically mean they ill. A few of us may need additional, sometimes professional support to handle our live experiences and some may become ill, usually for more than one reason as people are complicated things. But the difficult issue is where you draw the line between looking at someone’s behaviour and choosing whether to see it as ‘crime’ or ‘illness’. Indeed, there may be a need to see it simultaneously as both: the dichotomy between ‘mad’ and ‘bad’ is false one, both medically AND criminally! But however interesting this is, however philosophical you want to get about it and however much academics have written, if you’re a front line police officer and you’re going to have 43 seconds to take a decision as profound as this, we may have to accept here people are going to get it ‘wrong’ from at least some people’s subjective perspective.

THE 9 AM JURY

It’s quite easy to walk in as the morning hindsight squad and have a view about what some frontline cop should have done last night, in the dark, but always fascinating when you ask people to put themselves in the officers position. What the reaction this week has shown me, categorically and beyond doubt, is that there are a wide range of passionately held, solid views that officers are over-medicalising behaviour AND that they are over-criminalising the vulnerable; AND they are making these calls in situations most of us aren’t prepared to place ourselves. The person in the high street who is waving a knife around, you have a minute to think about it: should they be arrested for possession of the knife or detained under the Mental Health Act. No, you can’t have any more information, you have to decide and you have thirty seconds left.  Have you decided yet? … not easy, is it?!

In other words, this touches upon my very favourite question in all of policing and mental health and the very thing that could be profoundly interested in this stuff when I was custody sergeant fifteen years ago: when is it “right” to prosecute someone for a criminal offence if we know they have a mental health problem? The public policy answer (in Home Office circulars 66/90 and 12/95 as well as the DPP’s Code for Crown Prosecutors) is “the more serious the offence, the less relevant a person’s mental health issues are to the police / CPS decision to prosecute.” This is my attempt to summarise pages and pages of stuff in to one sentence, so please forgive the deliberate over-simplification! Where someone is stealing food whilst psychotically unwell and living rough in crisis, we probably don’t want them prosecuted for being hungry and very poorly. However, if they stabbed a supermarket security guard whilst doing so, it becomes a different assessment to make. If that assessment were influenced by a history of non-engagement with mental health services, absconding from hospital and / or a background which showed they posed a serious risk to the public as a whole, it becomes easier still to start taking these decisions. But make that a less serious but non-trivial offence, mix in social distress and substance use? How easy is it now?! … you have thirty seconds to decide.

Remember, only the criminal courts can issue certain kinds of protective orders under our mental health legislation which balance an individual’s right to treatment with the need to protect the public, where necessary – that’s true in most jurisdictions around the world. But given how far apart the views were this week – we need decide what we want our police to do and back them because whatever they get right or wrong, I know this: frontline officers only have blunt tools to take decisions that require sophistication and finesse.  Have you ever tried playing a musical instrument gloves?


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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8 thoughts on “Medicalising and Criminalising

  1. This is a question that has tried the patience of many a police officer or mh professional for over 150 years. In 1843, the McNaughton rules cam about following the shooting of a secretary to the then Prime Minister and the debate around mad or bad was established.
    “The insanity defense reflects a compromise on the part of society and the law. On the one hand, society believes that criminals should be punished for their crimes; on the other hand, society believs that people who are ill should receive treatment for their illness. The insanity defense is the compromise: basically, it reflects society’s belief that the law should not punish defendants who are mentally incapable of controlling their conduct.
    In the 18th century, the legal standards for the insanity defense were varied. Some courts looked to whether the defendant could distinguish between good and evil, while others asked whether the defendant “did not know what he did.” By the 19th century, it was generally accepted that insanity was a question of fact, which was left to the jury to decide.” [https://www.law.cornell.edu/background/insane/insanity.html]
    It should not be decided on the nature of the crime but whether the perpetrator was aware of right from wrong. Anyone involved in criminal activity should answer charges made against them and the outcome should be CJS or MH support
    In the discussions to the MHA (07) amendments there was an attempt to introduce the Dangerous and Sever Personality Disorder Bill, it never made it to that statute book but did lead to the repeal of the exclusions for sexual disorder or immoral conduct effectively meaning (although some would disagree)that we could medicalise behaviour. No answers other than sometimes we must let the jury decide.

  2. People behave in socially unacceptable and sometimes dangerous ways and society attempt to prevent that and reduce harm. We then spend time working out whether the behaviour is their fault. If it is then it’s criminal justice, if they appear driven by forces outside their control we call that a mental illness.

    But as practitioners know in practice there often is no neat dividing line. People feign illness to avoid criminal responsibility sometimes and some illnesses leading to anti social behaviour are wholly unlike other illnesses. How is dissocial personality disorder an illness? If I fall out with my lover, get drunk then become distressed saying I’ll kill the lover and then myself, is that an illness like diabetes or asthma? It’s a category error as Gregory Bateson would say

  3. The points made in this blog are important and inevitably nuanced. The original blog grappled with the broader contextual issues that Sir Tom Winsor raised and I think it is important that this is not lost. The reason why police are increasingly involved with mental health matters is a direct result of the Transforming Care agenda to close inpatient beds which came about following the awful ‘care’ at Winterbourne View. What is less often talked about is that the emergence of this strategy coincided with the fiscal downturn in the public finances and the need to make savings; specialist inpatient beds supported by well trained professionals are expensive. One of the results of not providing this specialist mental health care is the increasing impact on our police services. So nuances are important, but the macro tectonic movement (public policy) that created it, more so.

  4. What great responses; I have to say I have been involved in mental health for over 40 years and with a personal , police , and ASW background , and still active live ! . it shows nothing has really moved on . And to be fair I am not sure how many “experts ” are still working on the ground so to speak . It was always an issue that often trainers and experts were out of contact with reality , and nothing has convinced me that there has been a change in my 40 years . We or the so called experts can quote statistics ! ( but to be fair people on the work face are not very good of completing stats forms so I am unsure how accurate they are with today’s pressures ) . Yes we have now place of safetiy in appropriate settings , something I was involved with and tried to promote within the government from 2000, But I still place an emphasise on the term ” Appropriate ” . What is appropriate , we still have people commitimg serious offences yet they come to the place of safety , the police advise us “we cannot do anything because they are under the mental health act of course it’s a training issue , we acknowledge that , but what message are we giving to the detained person , where is the forensic history , what are we saying to them “it’s ok to make an informed decision to stop meds , and if you offend we will take that into consideration but will not take action . I have always been pro active about people with mental health going to appropriate sign posted supports when picked up by the police , but what about those who are not detained or do not have a mental disorder yet have committed often quite Serious offences , a taxi home ? Which sadly is often the case . Yes ! they may come into contact with services again , and we are often lucky that they have not commited a serious life threatening offence as their forensic history is not recorded . Where does this ” No custody in police station “. Attitude come from ? ?? when some one has committed s serious offence ? And “may “? Be unwell . Is it resource led ? Doubt it. As someone under the influence of ” black mamba” etc will still need superviision by officers . ( and probably terrifying the other patient in the other room as well as the nurses ) I sadly cannot quote lots of professional s to support my experiences , though I am sure they are out there somewhere 🙂

    1. Should someone waving a knife around in public be arrested for the offence or detained under s136 if they are also thought to be mentally ill? I’m not referring to simple possession here, but where it is carried in the hand and not held by the side of their body)?

      What about someone who assaults another person to GBH standard but where the context of the report makes it absolutely crystal clear that the victim isn’t reporting an assault, but trying to get help for the person who has hurt them?

      Doesn’t matter what your answer is to each scenario, I’ll be able to find a senior, influential figure who disagrees with you. *THAT* is the issue here: we’ve all got opinions about how the world should work!

      1. Boss, Tricky question, 1st incident I would probably look at section.
        2nd as a response officer and having dealt with people in crisis many times I would have to say initially it would be arrest. With the caveat that on arrival at custody I would make the Sarge know that I believe the prisoner was mentally ill. Irrespective of whether the victim wants a prosecution or not it still has to be recorded and hopefully the prisoner gets the help they need. I do agree if you have someone who is genuinely in mental crisis the last thing they need is to be criminalised, but I also know what kind of reception I would get if I turned up at the local mental health unit explaining that I had sectioned them after they had stabbed someone to the point of serious injury. It is my experience that unfortunately sometimes people who are in crisis resort to extreme measures to try and get help. Hard situation not necessarily one you want to have to deal with but one that is starting to become all too common.
        By the way think the blog is excellent keep up the good work

  5. is there a correlation ‘tween Mental Illness ( however severe ) and Criminality ? Psychiatrists and other professionals do agree, there can be/may be. Science has no direct answers nor does Law.

  6. I think the principle of the more serious the [alleged] offence the more likely a person should be charged seems fair enough, but the threshold seems wrong.
    To be clear more often than not we are talking about violent behaviour, behaviour that risks harm to others and occasionally things like trespass or things labelled public order offences.

    I would suggest that a good threshold might be where the offence would need Crown Court rather than Magistrates, ie if found guilty punished with a sentence longer than 6 months.
    I haven’t plucked that out of the air. The forthcoming amendments to the MHA through the Crime and Policing Act have equalised the standard period of detention between s136 and PACE to 24 hours but after assessment under the MHA the person can be detained for up to 6 months.

    So for example waving a knife in a public place:

    “Section 139AA of the Criminal Justice Act 1988 makes it an offence to unlawfully and intentionally threaten another person with an offensive weapon or bladed article in a public place or on school premises, in such a way that there is an immediate risk of serious physical harm to that other person …
    Where a person is convicted of an offence contrary to section 139AA the court must (in the case of an adult) impose a custodial sentence of at least 6 months, unless it would be unjust to do so. the power to impose a community order is not exercisable where the mandatory minimum sentence condition is met.”
    (http://www.cps.gov.uk/legal/l_to_o/offensive_weapons_knives_bladed_and_pointed_articles/)

    Therefore an arrest for a criminal offence would seem entirely appropriate and safer. (I always wonder on what basis a person detained under s136 with a weapon legally has that weapon removed from them? It’s not evidence if the police have no intention to charge. Can it be confiscated if no offence has taken place?)

    Getting back to the point, there seems to be an unnecessary dichotomy, perhaps at its source from the CPS, about use of the MHAA and criminal prosecution as neither excludes the other, despite arguments about ‘not in the public interest’.

    Persons arrested for a crime can be (and frequently are) assessed under the Mental Health Act in custody. Persons charged and prosecuted can end up with a mental health disposal via the Mental Health Act.
    Similarly nothing precludes a person detained under s136 being subsequently charged with a criminal offence at a later date.

    Last but not least, the process of arresting and charging for an offence leaves a trail which is essential for risk assessment and management and is necessary to meet thresholds for some Forensic Mental Health Services. Look a most assessment forms for Mental Health Services and you will see two separate boxes for Risk History and Forensic History.
    It’s genuinely worrying sometimes to see that because diversion from the CJS by admission has taken place a significant crime and risk towards others drops off the radar even in repeat (non) offenders.

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