It’s all too often a contest, of sorts – or perhaps a stand-off?! … two massive paradigms of state intervention, constituted and resourced for a certain set of separate public purposes, governed by separate laws that were (substantively) written around the same time, in the early 80s; and yet in so many important respects, they overlap and expose each other’s problems and shortcomings in a “mental health is from mars and criminal justice from venus” kind of way. If only the main purposes of each weren’t focussed on people from earth! – the public we’re all here to serve.
If you want to read something exceptional on this, try Professor Jill Peay’s book, shown in the image above. This post is borne of a thread on the Masked AMHP Facebook group – an AMHP asking about a scenario where a man is in custody for GBH. The ‘mental health triage’ nurse in custody called for a Mental Health Act assessment and the doctors he contacted suggested they should not even assess the person, because the only recourse they would have afterwards would be to use s2 or s3 of the MHA, which “would not be apppropriate”. I will admit, I was aghast to read that without there also being further information that helps you understand. My instinct was, “well what if, as in many cases in years gone by, there simply isn’t the evidence to charge the person; and what if an assessment under the MHA were to conclude the person was detainable?!”
My only point is this: we’d need to know more before one of these state paradigms wipes its hands of the situation – they’d certainly need to know what the other is thinking and what they are capable of doing instead. This re-opens debates I’ve tried to address on this blog before and really, it’s about whether AMHPs and DRs understand the criminal justice system and how it makes prosecutions decisions, as well as whether police officers understand Mental Health Act assessments. If no other message is taken away from this post, then it’s a plea that no matter what professional role you undertake, you pledge to learn enough about prosecution or MHA assessments, to begin to understand how this stuff dovetails, if required.
THE MAIN PUNCHLINES
There are certain things that are non-negotiable legal requirements in MH and CJ. We all need to know them ALL —
- In CriminalJusticeLand —
- Prosecution can only occur where it is considered that there is sufficient evidence to charge the person and it is in the public interest to do so.
- If either of those aspects if missing – you cannot legally prosecute someone.
- In MentalHealthLand —
- Someone may be detained under the MHA if they have a “mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment or treatement”, under s2 or s3 of the Act.
- If that aspect cannot be satisfied – you cannot legally admit someone against their will.
It logically follows from there, we could have various scenarios in police custody where a person thought to be unwell is also suspected of offending. There either will or won’t be sufficient evidence to charge in the opinion of the investigating and custody officers; there either will or won’t be sufficient grounds to make an application under the MHA in the opinion of the AMHP (assuming the two DRs have given medical recommendations). So Leaving aside the public interest test for just one moment, you have four possibilities –
- Sufficient evidence to charge; detainable under the MHA.
- Sufficient evidence to charge; not detainable under the MHA.
- Insufficient evidence to charge; detainable under the MHA.
- Insufficient evidence to charge; not detainable under the MHA.
The public interest test only becomes relevant where there is evidence to charge a person with an offence and that is most often argued over in scenario 1, in my experience. The other three situations are quite straight forward, so let me deal with them to get rid of them quickly: 2) you’re going to use a CJ outcome, because the MHA is not an option for you; 3) vice versa! … and 4) the person just get released because neither prosecution nor admission is required. In all three of these scenarios any ongoing healthcare matters are for the NHS to follow up via a GP, a community or crisis mental health team or in whatever other way thought appropriate.
It is where the MHA system could admit someone and the CJ system could prosecute someone that these two paradigms interface most often and most contentiously – when, precisely, do we still prosecute someone for an offence committed whilst so ill that they require hospital admission? It’s a remarkably difficult question, most of the time; but it’s been made even harder in recent years because the ‘bar’ for how acutely ill someone must be to be ‘sectioned’ has gone up as beds reduced.
Scenario 1 is now a harder judgement to make, involving only the most unwell in our society. We usually agree where suspects are accused of stabbing people or stealing small amounts of low value goods when they’ve never been in trouble before. Stabbing someone is rarely going to be something the CJ system doesn’t take an interest in, but we also usually agree we don’t want vulnerable people criminalised for stealing some food whilst living rough in crisis. But people are often more complicated than that, aren’t they?! … we’re frequently referring to people who are neither straight-forwardly “ill” and who may have some history of previous offending and / or previous history of failing to engage with MH services and failing to show up to court, whilst on bail. It opens up that awful “mad versus bad” dichotomy that I hate so much. << It simply isn’t a thing – it is perfectly possible both legally and ethically to be ‘mad’ and ‘bad’, if people are going to insist on using those simplistic terms or any synonyms along similar lines.
The MHA itself contains provisions relevant to the overall operation of our criminal justice system. Part III MHA – all the sections between 35 and 55 – relates to a whole suite of remand, assessment, and disposal options, which are available to the criminal courts only. No doctor, no police officer and no AMHP in this country can do what the criminal courts can do under Part III MHA. So if those provisions are ever thought relevant, they can only be accessed after criminal prosecution. Criminal prosecution can only be launched where there is evidence of a crime – this is a fundamental tenet of criminal law and we would expect and demand nothing else. Prosecution without evidence is beneath us all.
THE CRIMINALISATION CONTINGENCY
I’ve written about this before: the idea that someone is prosecuted mainly or purely to allow them to access a kind of clinical care that is usually reserved for patients who have come through the criminal justice system and Part III MHA. Many medium secure units and high secure units will only accept patients from the criminal justice system or where there has been referral from units with lower levels of therapeutic security making referrals ‘upwards’. Some years ago, I became involved in a case, supporting a Senior Investigating Officer, after he hit up against scenario 3, above. The man arrested for murder was assessed in police custody and found to need admission under the MHA. By that time, there was insufficient evidence to charge, because the suspect had been arrested in a house where a body was found – and that’s not an offence. It was still not possible to prove that he killed the victim because he was too ill to be interviewed, there were no witnesses to the killing and recovery of forensic evidence was still in it’s early days with the location still being searched by the police.
This is where today’s Masked AMHP Facebook group began: a situation where someone has been arrested for GBH, where a clinician calls for an MHA assessment – we don’t know from the circumstances what the legal position was with the investigation. The AMHP contacted Doctors to undertake the assessment and it was eventually decided that they would not assess the person because they would only have s2 and s3 to rely upon, in the event that admission was required. Because of the seriousness of the offence and the perceived “risk” (whatever that means), it was being argued that the person should be prosecuted and then handled via Part III MHA. << I’ll come back to Part III in a moment, but there’s are other reasons to outline why prosecutions can’t always occur.
In the MS v UK human rights case (2012), we saw the police detain a man under s136 MHA after finding him in a car that was likely to have been stolen. When they made enquiries with the registered keeper of the vehicle, they met a woman who had been extremely badly assaulted. As the story unfolded for the officers, the injured lady turned out to be the man’s maternal aunt and she was just extremely glad he was now in police custody as a Place of Safety (there were no NHS options in Birmingham in 2004) and the police were getting help for him. It was almost beyond doubt he’d taken his aunt’s car without her consent (an offence) and caused her GBH injuries, whilst psychotic. She required extensive surgery to repair that damage, however she simply refused to make any kind of criminal complaint against her nephew, arguing she knew he was really unwell and that all he needed was help. The human rights challenge was against the NHS for failing to get him out of police custody and subjecting him to inhumane and degrading treatment whilst he was in ‘dire need of psychiatric care’ – worth bearing in mind for AMHPs and doctors who are refusing to do assessments without necessarily understanding the criminal justice position.
There are some misunderstandings about Part III that may influence some of the things I have concerns about —
Firstly, even if there is sufficient evidence to charge (scenario 1), this doesn’t mean the criminal courts have powers to ‘divert to hospital’. The provisions for remanding defendants to hospital are sections 35 and 36 MHA – neither of them are available to the Magistrates’ Courts at the point where a defendant first appears before them. In fact, s36 MHA is not available to them at all; section 35 only applies to someone who has been found guilty or who has been found ‘responsible’ for the act or omission charged, OR if they consent to the court exercising these powers. So it cannot be known for certain in a police station, that someone being charged with an offence would certainly be remanded to hospital by the Magistrates – it’s extremely unlikely and I’m not aware of it ever happening. Apart from anything else, s35 requires information from the ‘Approved Clinician’ from the relevant hospital, and if everyone has refused to undertake an MHA that will not be lined up ready for the court.
Also, if someone is charged with an offence indicating higher levels of ‘risk’, we can assume it is more likely than not going to be a more serious offence, like GBH in the example which promoted this post; or in the MS v UK case; or murder, as outlined in my own example, above. Where an offence is indictable only, the defendant is not asked to enter a plea until they reach the Crown Court, which means the Magistrates can either remand the person to prison or release them on bail pending the CJ process. What do we think they’re likely to do for a serious crime defendant who is thought to be seriously mentally ill?! How OK is it to send a vulnerable person needing hospital treatment to hospital, because NHS prefers not to admit them to a relevant kind of secure facility? … would we even be having this discussion about cancer patients and linking their potential for hospital treatment to whether or not the police have prosecuted them for something?!
My final point is this: we know from history that patients who require certain regimes of ‘therapeutic security’ like high or medium secure units, can access them where necessary. Preferred NHS policy that this should not happen directly from police stations is just that: NHS policy. It is not in the MHA and nothing prevents someone being ‘sectioned’ under the civil provisions like s2 and s3. This may, in the real world, be necessary from time to time, because it is simply not always the case that a criminal prosecution is immediately possible, as we saw in the murder case, as we saw in the MS v UK case and in others that haven’t gone anywhere near the news or the human rights courts. If someone is in ‘dire need’ of psychiatric care, then that remains the case regardless of the state of any criminal investigation that may be occurring and it remains incumbent upon the state to be able to ensure their fundamental rights.
Unfortunately for everyone, saying “secure beds take days to organise” and “NHS policy says they must be charged” is irrelevant and not a matter for the police. History also shows those arguments fail, for the reasons given, so we need to be accordingly prepared of these situations when they emerge.
NB — if you’re not a police officer and want to read more about how the Police and Criminal Evidence Act 1984 operates, there is a PACE for Beginners series of posts, for your consumption.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk