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Covert Crisis Pathways

Policing and mental health as a subject cuts right across all of policing. We often end up talking about section 136 and places of safety – even when it’s completely irrelevant to the outrage prompting discussion – and I suspect that this prevents us from talking about, or even identifying, the larger and far more important issues and philosophical questions.

Remember that last September, Her Majesty’s Inspectorate of Constabulary highlighted in their report ‘Core Business‘ that Nottinghamshire Police had approximately 1,100 detentions under s136 per year, which compares very roughly with the number who are detained by West Midlands Police, before the introduction of each forces’ street triage schemes.  I’ve mentioned before that in terms of both officer numbers and resident population, the West Midlands is just short of three times the size of Nottinghamshire, so it seems superficially surprising that their use of s136 is so similar.

HIDDEN DATA

What we’ve never fully explored, nationally, is something which might help us understand the context of those s136 figures: the prevalance of mental ill-health in the group of people who are detained or arrested for legal reasons other than the Mental Health Act.  How many alleged shoplifters, drunks and other suspected criminals are assessed in custody under the MHA? – and what are the outcomes?!

I know the answer for this in the West Midlands but not for elsewhere and I have often wondered what we’d find if we looked.   What would it tell us, for example, if we learned that in Nottinghamshire, a much smaller percentage of criminal suspects were assessed under the MHA and then diverted into the NHS than in the West Midlands? – what would it tell us if it were roughly similar?!  You could repeat this exercise in any two areas where obvious questions should be asked about 136 usage. For example, I’ve often wondered why West Midlands Police – the second largest police force in England – is using s136 less than West Yorkshire, Devon and Cornwall and Thames Valley Police. Each of those places is smaller in terms of resident population and officer numbers so why are they using s136 more often than one of our country’s largest forces?

In some cases there are obvious but only partial explanations to consider – Devon and Cornwall’s resident population expands by many, many millions of people every year because of it being such a popular tourist destination. That will account, in part, for raised usage as police forces don’t obviously just use section 136 MHA on people who are resident in their area. But there will be other explanations and this is what I want to see Liaison and Diversion services looking at.

CRIMINALISATION TENDENCIES

What if we discovered that West Midlands Police were using criminal offences more often than Nottinghamshire in circumstances where a choice between MHA and criminal law could be made?  For example, a man on a bridge threatening to jump onto the motorway or railway line below is committing an offence – if he is successfully persuaded down, what do we then choose to do and how do we make that decision?  Maybe Nottinghamshire and West Midlands have two different views or more likely they have two different evolved cultures, hence different usage of the MHA?

Which of them is ‘right’ – what is section 136 for, strictly speaking?  What would a street triage nurse think – perhaps their access to NHS information might help inform the decision one way or the other.  This links to the point made by Lady HALE, the deputy President of the Supreme Court.  In her book on Mental Health Law (2010) she wonders whether s136 is in fact underused, partly because it’s potential to safeguard overlaps with our substantive criminal law.  She went so far as to say that we could argue that s136 is under-used.  It’s a though-provoking idea especially in light of initiatives like street triage which openly aim to reduce the number of people who are detained.  So I suggest we need to understand more about what is going on and have a clearer view about what we’re trying to achieve here.  We need, in my view, to articulate without prescription how we want officers to think about these decisions and exercise their discretion so we don’t unnecessarily criminalise people, but so that we don’t fail to protect the public where that is the balance to be struck.

It’s an absolute pain in the posterior aperture to collect new data in policing but we can’t work out too much about this stuff because police IT systems were not designed to capture it.  Any data gathering exercise would have to be done by designing an ad hoc form and which operational officers would need to fill in.  Having spent most of my career as a frontline cop, these sorts of ideas are usually viewed as additional bureaucracy which has to be inserted into an already busy shift but we also have to accept across policing and mental health that unless we try, we’ll continue to be blinkered, not only about what we’re doing and what we’re trying to achieve but also about how we go about making progress towards those goals jointly with our partners in mental health and social care, putting patients and the public foremost in our thoughts.

WHAT IS THE RIGHT THING TO DO?

So whether you want to get consequentialist about all of this, or whether you just have a political (with a small p) instinct about whether and when some people should be criminalised, notwithstanding some degree of mental vulnerability, you end up having to have something of a plan for how you are going to ask police officers to make detention decisions when faced with operational ambiguity or plurality.  For what it’s worth, this is something I wanted to start working on with partners after starting my current role at the College of Policing and I’m going to a meeting in Newcastle to talk about this next week.  Once I’ve been, I’ll put out a blog highlighting where I think we’re getting to, but it seems it won’t be a million miles away from what I first wrote on this BLOG a few years ago, which you can read for yourself.  If you have a view on any of this stuff, please do make it known – either write a comment on this post, below; or if you prefer not make your remark public, go to the BLOG’s homepage and scroll down: there is a contact form that sends an email straight to me.

It’s difficult stuff:  criminalisation; fairness; social justice – how do you balance these things off to provide the requisite balance between consistency in roughly similar circumstances and a population level impact that doesn’t further stigmatise already vulnerable and stigmatised groups amongst us all.

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The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

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Legal Literacy

You may or may not remember that a couple of years ago, I somewhat vented my spleen in a post which contained a list of all the legal myths and nonsense that we tend to hear at the interface of the policing and mental health.  It remains the case, in my humble view, that we need to improve the standard of legal education across the 999 and related professions, not just around mental health law, but around the basic operation of the criminal justice system.

Little seems to have changed in those two years, so I thought I’d list them all over again with a few new ones!  Things I still frequently hear from all of the relevant professions despite the fact that none of them are correct! —

  • The police cannot arrest under s136 MHA if the person is in A&E
  • To decide whether or not to prosecute a mental health inpatient for an offence, the police need a statement of evidence from a psychiatrist affirming the patient’s “capacity”.
  • Only the police can keep someone detained against their will in a Place of Safety, after being removed there under s135(1) or s136.
  • Only the police can use physical force to restrain a patient in a community MHA assessment, in order to compel that person to hospital once ‘sectioned’.
  • It is always the role of the police to recover AWOL patients.
  • If the police are in a private dwelling dealing with a mental health crisis, they can use the Mental Capacity Act to remove the person to A&E or a place of safety.
  • Victims of crime with mental illness are inherently unreliable at court.
  • Once you’ve detained a patient who is AWOL from hospital, you can keep them in a police cell if the hospital to which they should be returned does not have a bed.
  • A&E is NOT a place of safety.
  • An AMHP cannot use force on a person who they’ve just ‘sectioned’ to move them into an ambulance.
  • Paramedics cannot use force on a person that has been sectioned by an AMHP [who has properly delegated authority under s6.]
  • An AMHP can order or instruct the police or ambulance service to detain and convey under s6 MHA, someone for whose admission to hospital has been applied.
  • If we don’t have a bed into which the admit someone who needs ‘sectioning’ then we don’t have a bed and that’s the end of it.
  • Violent patients detained under s136 MHA should always be detained in the cells.
  • A person who is detained under the MHA in hospital can’t be arrested or prosecuted.
  • You cannot get a s135(1) warrant for an MHA assessment if you already know you can get access to the premises.
  • The police can neither apply for nor execute a s135(2) warrant on their own.
  • You cannot arrest and remove a s37/41 hospital order patient from a secure unit after they have committed a serious offence.
  • You can’t stop psychiatric patients leaving a hospital ward and going AWOL if they want to.
  • You cannot arrest an inpatient for an offence, unless the RC in charge gives permission.
  • There is no point, legally, in prosecuting a s3 patient for violence on wards because they’ll end up back in the same place getting the same care from the same professionals.

I want to add a few more, that have emerged in recent times and in particular I want police officers to focus on the fact that the first of this new list is something that AMHPs are very frustrated by.  So much so, that they’re actually laughing at us! —

  • An AMHP without police support can execute a warrant under s135(1) or s135(2) of the Mental Health Act.
  • You can’t assess someone under the MHA if they have consumed alcohol.
  • Where paramedics have declared someone to lack ‘capacity’, this allows officers to remove people against their will to hospital.

We all need to try and raise the standard of legal literacy around these issues and just for absolute clarity: the wording of these bullet points is the wording of what is not true!  I want to see professional practice influenced by greater reference to, use of and based on easy access to legal resources and therefore the law itself!  But as a starter for ten we need each and every professional not only to take responsibility for their own legal knowledge, but also for stimulating a culture in their professional environments where emphasis is on legal literacy.  This is not just about keep yourself out of legal difficulty, it is also about advocating for the rights of vulnerable people with whom organisations have contact because we read far too often about those rights being violated for the convenience of organisations.

I dream of a day when I don’t hear this sort of stuff, anymore!

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The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

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Unfit to Plead

I’m going to try really hard not to discuss the case of Lord JANNER after today’s annoucement by the Crown Prosecution Service that he will not be prosecuted for a litany of sex offences – mainly because I know no more about it than anyone else who has followed the media.  It has already been confirmed that a Deputy High Court judge has been asked to independently review the case and that some are contemplating legal action so if the CPS have err’d in their thinking, it will be scrutinised in those challenges.  Those processes should take their course and let people who’ve seen the relevant materials take the decisions – there’s a radical thought!

Nevertheless, today saw an outbreak of legal commentary on Twitter and having not particularly followed the case, I began to pay attention when it was confirmed that it was the developed extent of Lord JANNER’s dementia was the crux of today’s accouncement not to prosecute him.  When I then read the full CPS press release, I just thought it made sense and I wondered in light of its content what other options we thought they had?  It seemed to me to address the legal issues that were there for determination and whilst I’m not a lawyer, I also couldn’t help but notice that most of the reaction I was reading on social media was not a critique of the legal logic, but an understandable reaction of frustration, to put it very mildly, about someone who is alleged to have repeatedly offended, very seriously over many years and whilst in a position of authority will not face justice despite the existence of sufficient evidence to charge him with many of the allegations made.  How could any of us not have sympathy with victims and their families in this case and their desire to see justice served in relation to a man in respect of whom the DPP herself said there was sufficient evidence to charge with dozens of serious sex offences?

It all appears to reduce down to the question of the suspect’s dementia and to the health considerations that CPS must apply at the point of considering charges against any of us.  This is what I want to focus on here but not specifically with regard to a particular case – the CPS have to apply these kinds of considerations each year to a number of suspects who are vulnerable by reason of their mental health or their impaired cognitive functioning and this precise debate is one that has been going on for some years when it comes to the difficult issue of violence within mental health settings towards NHS staff.  I have written about the legal process of unfitness to plead before and I’m not intending to just repeat that, merely to focus instead on the application of discretion ahead of any criminal process.  Discretion exists during criminal investigations for both the police and for the CPS – by the end of this post I want to argue that without sensible application of discretion, our criminal justice system would be full of cases that would cause even more outrage than we have seen today.

COGNITIVE CAPACITY

The CPS must, by law, have regard to the health of suspects against whom they may consider bringing charges – they must consider both the implications on their health of a criminal justice process; and the implications of their health on their ability to engage in the trial process.  To stand trial, defendants must be able to understand the process going on inside the courtroom and be able to instruct their lawyers accordingly.  If they cannot do so, they are unfit to plead and stand trial.  The police also have discretion about whether cases are even referred to the CPS in the first place and we frequently exercise it after the investigation of minor crimes involving suspects with profound medical problems.  Elsewhere on this BLOG, I’ve written about violence within mental health settings where detained patients are alleged to have assaulted NHS staff.  Not everything that is reported to the police gets referred to the CPS and not everything that is referred to them is prosecuted – multiple legal officers, whether they be investigating officers, their supervisors or CPS lawyers ensure multi-scrutiny of the same case and discretion is often applied and cases stopped at various stages.

So there are a couple of considerations around individuals who are or who may be unfit to stand trial –

  • How is unfitness decided? and
  • Who decides upon a defendant’s unfitness?

The nineteenth century case R v PRITCHARD [1836] is the basis of determining ‘unfitness’ and it can be declared if any one of four criteria are met.  It happens where defendants are unable –

  1. to comprehend the course of proceedings on the trial, so as to make a proper defence;
  2. to know that he might challenge any jurors to whom he may object;
  3. to comprehend the evidence; or
  4. to give proper instructions to his legal representatives.

If unfitness is being raised in court by the defence, it is determined on the balance of probabilities: where it is raised by the prosecution, it is determined to the full criminal standard of proof – beyond all reasonable doubt.  So in the case of any patient where four medical practitioners are all agreeing in light of those criteria on the potential of that person to take part in a trial, what do we want the CPS to do?  Of course, there are cases where medical opinion is divided and the CPS takes a view that the issues should be tested in court with doctors giving evidence before a jury.  It is also true that doctors are sometimes hoodwinked and they sometimes make errors:  a Guiness fraudster and a Lockerbie bomber are amongst the examples.  In the case of the Yorkshire Ripper, no fewer than five forensic psychiatrists examined the defendant prior trial and three of them ended up giving evidence as the jury weighted through it all.

PUBLIC INTEREST

So should all matters not be tested in a public court where they relate to a high profile individual and multiple, serious allegations aggravated by an abuse of authority?  Well, they often are but nothing in law mandates it – even where someone is suffering a severe or enduring mental health condition, it could be possible that they are fit to plead and stand trial and we should be clear that the easy decision for any criminal justice decision-maker is to kick something further into the system and let someone else decide.  Christopher HAUGHTEN, who attempted to kill a police officer and who grievously injured many more, was prosecuted and stood trial notwithstanding that he was seriously unwell from the point of arrest to the point of conviction – but he WAS fully convincted in the end.  We need to accept that each case of this kind is difficult and complicated in its own right and must be judged on its individual merits.

Of course what a lot of today’s remarks have often missed is victims and it is argued that a failure to prosecute a vulnerable suspect denies victims the change to be heard and validated.  I fully understand that and today’s CPS statement did make mention of the importance of victims being heard.  There’s no way that I can think of to avoid my next statement from sounding somewhat harsh: but the criminal hearing is there to determine the guilt or otherwise of a suspect accused of offending, – assuming that they can take part in it – and to determine an appropriate sentence where necessary.  If the CPS look at the medical information available and feel there is little or no doubt that the court will find a person unfit to plead, then they are vested with the discretion not to commence a criminal justice process and they have taken such decisions more than once this year.  But if you launch a prosecution in anticipation that someone will be unfit to plead, even after a finding of facts the court only has three options:  they can impose a hospital order under s37 MHA, they can imposed a supervision order or they can absolutely discharge the person.

Let’s look at those other examples: many people in our society living with various mental health and other cognitive problems are accused of offending, including some of them, very seriously indeed.  I read recently in an NHS document that it is not the job of the police to consider these medical or cognitive matters, they should ignore the question of the mens rea in any offence that involves a detained patient and they should approach the CPS to prosecute when they are satisfied that they can prove the act that was done.  If you add all of that to the calls we have heard today for the CPS to prosecute a high profile case notwithstanding what appears to be consistent evidence of a medical condition that raises very obvious difficulties when you read the Pritchard criteria (above), you see what an unresolved issue we have, which is largely to do with legal literacy outside the criminal justice system.

It would mean that where a patient is deprived of their liberty under the Mental Health Act or the Mental Capacity Act and where they are experiencing a disabling psychosis, disturbing delusions and auditory hallucinations and have never been in trouble with the police before, they would prosecuted in a criminal courtroom if a nurse complained that they were punched by a patient whilst medication was administered in circumstances that patient found frightening.  (Incidentally, it also means the nurse would be prosecuted if that patient complaint of assault, but that wasn’t considered either.)  Notwithstanding how unwell they are, notwithstanding that the trial may be quite unrecognisable to them and they can’t instruct their lawyers, they’d be prosecuted.  The system does allow for this if it can be argued that the criminal courts need to be able to apply certain orders to indiviudals who may pose further risk to the public.  Again, each case is judged on its merits.

You can read more about the CPS decision to prosecute on their website, and their guidance on mentally disordered CPS – mentally disordered offenders which includes explanation of unfitness to plead.

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The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.