When we hear mental health professionals talking about someone going ‘down the forensic route’, they mean a patient with healthcare needs being managed under Part III of the Mental Health Act 1983. This Part of the Act includes all those sections from 35 to 55 and it covers a range of provisions for the criminal courts and the Ministry of Justice to manage those offenders who are thought to be seriously mentally ill and in need of treatment, whilst their case progresses through the criminal justice system.
So, if you don’t mind, we need to get rid of one really important issue very quickly, before talking about issues around forensic options: if the police or CPS are yet to prosecute someone for any alleged offence, Part III is of no application whatsoever to that patient, no matter what their ‘risk status’. There are plenty of people walking around in society today that I think are dangerous criminals and I’d prefer they were behind bars for my family’s and your safety, but until I can get evidence to prosecute them for something, it’s a risk we all have to bear as the general principle of our justice system is that we would rather have guilty people at liberty than innocent people in prison.
THE CRIMINALISATION CONTINGENCY
First things first: when someone has gone down ‘the forensic route’, they will most usually be managed initially within a secure hospital, often categorised as low, medium or high secure. There are four high secure hospitals in the United Kingdom: Broadmoor in Berkshire; Rampton in Nottinghamshire; Ashworth in Merseyside and Carstairs in Scotland. Typically there are several ‘medium’ secure hospitals in every region of the UK, some specifically for women, some for children, most for men as male patients make up the bulk of the secure patient population – just like men make up the bulk of the prison population. Many of the people in these hospitals are their during their transition through the criminal justice process, on ‘remand’ for psychiatric reports or for treatment pending trial (sections 35/36) or they are there as a consequence of sentencing under various kinds of ‘hospital order’ (sections 37, 38, 41 and 45A). Secure hospitals are also the place to which remanded or convicted prisons are transferred if someone is identified in prison has having become sufficiently ill to require inpatient mental health care. So Part III MHA contains provision to transfer remanded or convicted prisons (sections 47/48) and to transfer them back again, if necessary (s50).
Now, there is nothing in the Mental Health Act itself which demands that secure hospitals can only be used if the patient is in the criminal justice system. Nothing in the law prevents a ‘civil’ of Part II detention in a secure unit. This would be someone who is detained under section 2, section 3 or section 4 of the Act but who is deemed to need to kind of ‘therapeutic security’ that can only be delivered by our secure hospitals. So to give you a real example to hang your hat on, Ian Huntley (who murdered Holly Wells and Jessica Chapman) was taken under s2 MHA to Rampton hospital from the police station he’d been taken to after arrest. Whilst at Rampton he was prosecuted for murder and the trial process took its place.
The argument that secure hospitals can only take forensic patients is one I hear a lot and I’m blogging on this today because an AMHP asked my view on all of this during the AMHP Leads event in London on Friday. A murder investigation had begun and because of concerns about the suspect’s mental health, a mental health act assessment had concluded and formed the view that the patient required admission. However, the NHS had stated that the man would need to be prosecuted and ‘go down the forensic route’ because he was accused of murder and, to quote the AMHP, “no hospital in the country will take someone accused of murder unless they’ve been charged.” I’ve referred to this before as ‘the criminalisation contingency’ – the suggestion that you can only access certain kinds of healthcare if you’ve been prosecuted and that unless you’ve been prosecuted you will be denied access to this care even if you needed it.
PARITY OF ESTEEM
Meanwhile, criminal investigations involving vulnerable suspects are occurring. In many cases less high profile than Ian Huntley’s, the suspect is ‘sectioned’ under the civil provisions to a secure hospital and the police investigation then concludes at some stage. Where necessary and once authorised by the CPS, the police then charge the person and they appear in court. At that stage, if necessary, the defendant is then remanded under Part III of the Act. A good example of this in case that did make national headlines at the time, was the murder of Christina Elkins in March 2013. In that case, Philip Simelane was arrested on the Thursday Christina died and on Friday afternoon he was ‘sectioned’ to Reaside Clinic, the main medium secure unit for men in south Birmingham. The following week, once there was evidence to charge him, West Midlands Police went there to complete the formalities and in due course, this s2 MHA patient was ‘produced’ to the city’s Crown Court for his first appearance.
Interestingly in this case, they had made a special arrangement that Mr Simelane’s first day at court would involved two hearings, one straight after the other: a Magistrate first handled his initial appearance, sitting in the Crown Court room; then judge heard his first Crown Court appearance. All the while, Mr Simelane was still in Reaside Clinic, appearing by video link. The reason for this is to do with technicalities of the Mental Health Act. Magistrates cannot remand patients to hospital under s35 MHA until the defendant’s guilty has been admitted or proved; Crown Court judges can remand after someone’s first appearance. By having successive hearings, it prevented a situation in which the Magistrates may well have ended up remanding the seriously unwell defendant to prison where he would then be subject to normal delays to be transferred from prison back to Reaside under s48 MHA. (If you want to understand the extent of the problem of seriously unwell people in prison, read Insane by Alisa Roth (2018) or just look at the image in the header from the Economist article on moving the institutionalisation of the serious mentally unwell from health to (US) prisons over the last fifty years – Britain is doing similar things!)
All clear so far?! … good! (It sinks in eventually, you might just need to read it a few times!)
Of course, in other cases, the problem is the one I hinted at nearer the start: that serious unwell, potentially very dangerous patients are arrested for offences and assessed under the Act, but there is not enough evidence to charge them with any offence by the time they’ve been deemed to need admissions.
A real example will probably make the point clearer:
THE BODY UNDER THE FLOOR
Stephen Devesey was convicted in 2012 of murdering his ex-girlfriend, Nicole Cartmell in 2011. He was arrested at a premises after officers undertaking routine enquiries in to her being missing attended the address in Birmingham and discovered her body. Twenty-four hours or so later, he had been deemed to need admission to hospital under the MHA and by that stage, all the Senior Investigating Officer could prove was that Stephen had been in the house at the time the body was found. There was no direct evidence linking him at that stage to her murder; various forensic enquiries were still ongoing and he could not be interviewed because of his health. It was going to be necessary to bail him for further enquiries, let his health improve so he could be interviewed and question him once all the relevant background information and evidence was gathered.
That’s when it happened: “Sorry, sarge – we can’t section him because he needs a secure bed and he can’t have one unless you charge him with murder”. That’s when the SIO rang me at home for advice. At that time, and still today: some MSU’s or forensic psychiatrists argue that secure beds cannot be accessed by people who are under arrest in police stations, that they are reserved for patients who are in the criminal justice system already. And it does beg the question: what do we do with someone like Stephen? … the working theory is he’s probably killed someone and the clinical risk assessment is he needs secure care: but there simply is no evidence (yet) that he is guilty of an offence. The evidence may be likely in due course; but it doesn’t exist today. So, by law, he cannot be charged. But he could be ‘sectioned’ and it’s only trust policy or forensic policy that he cannot have a secure bed.
Since 2011 and that case, West Midlands secure services, police and CPS have sat down together many times to discuss this an other issues, which is why when Mr Simelane was prosecuted a year or so later, a process existed by which to ensure he accessed secure care without being charged and was then brought to justice once the evidence was there. This demonstrates very clearly that this was nothing whatsoever to do with the law and everything to do with cultural practice in the NHS, which probably evolved for good reason, but which was too rigid for the reality of the world. Very pleased to say that when I gave these kinds of examples at a study day yesterday where Professor Nigel Eastman was present (unarguably one of UK’s foremost forensic psychiatrists), he totally agreed that denying access to secure services for Part II patients with relevant risk histories was bizarre.
The forensic route is fine for people who are charged with offences – what about those who need that care but can’t be charged?
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