Justice Delayed, not Denied

On August 3rd 2018, Kaylsey Smithen was convicted of the manslaughter of his 46yr old mother, Janice, which took place in Birmingham more than six years earlier. This short post is a little bit of speculation on my part, based only on media reports of the legal process, but which seeks to outline why such a delay can occur and challenge again assumptions that professionals might make about serious mental illness being a barrier to criminal prosecution.

You may remember this case if you follow me on Twitter: at the start of 2018, Birmingham and Solihull Mental Health Trust apologised to Mrs Smithen’s family for the standard of care he received prior to her killing. There was some debate arising from the Safeguarding Adults Review about whether the police should have been called to a Mental Health Act assessment and / or whether the police were at fault.

Following his arrest for murder in 2012, shortly after his mother’s body was discovered by the police, he was detained under the Mental Health Act (MHA), having been diagnosed with paranoid schizophrenia. He was assessed as being unfit to stand trial – meaning he would be unable to follow legal proceedings or to instruct his solicitor. One report from the Birmingham Evening Mail implies he was given a restricted hospital order in 2013 after being found responsible for fatally beating his mother. This implies a legal process which found him unfit to stand trial but guilty of going the act during a ‘trial of the facts’. Whether or not I’m inferring correctly there, he remained in hospital under one provision or other of the MHA.

FORWARD TO 2018

Fast-forward to recent events and his health has obviously been deemed to have improved, at least sufficiently to allow him to instruct a solicitor and understand legal proceedings despite remaining in hospital under the MHA. Remember: this is one of my key messages across this whole blog?! –

The fact that you are mentally ill enough to be in hospital, detained under the MHA does not automatically mean you are not criminally responsible for your actions and it does not mean you cannot be made to go through the criminal justice process. All individual cases are taken on their individual merits – no presumption either way.

Kaysley Smithen stood trial at Birmingham Crown Court for murder in recent days and he put forward a defence of ‘insanity’ – this means he argued that “he did not know what he was doing and / or did not know what he was doing was wrong”, by virtue of his mental health condition. Yesterday, he was found not guilty or murder but was convicted instead of manslaughter on the grounds of diminished responsibility, his insanity defence having been rejected by the jury. This reinforces the importance of this panel of twelve peers: notwithstanding that there would have been significant psychiatric evidence in this case, it all amounts to opinion only – important opinion, no doubt – but opinion nonetheless. It remains necessary for juries to form their own view about things.

Important things to remember –

  • Any ‘fit to stand trial‘ considerations, is about whether someone is fit to stand trial at the time of the trial: it is nothing to do with the mental state of the person at the time of the offence. Lord Janner would have been fit to stand trial had he been prosecuted in the 1990s, but he had degenerative dementia when he was eventually prosecuted in the 2010s and was, predictably, found unfit to stand trial.
  • Kaysley Smithen’s case has worked other way: he was initially ‘sectioned’ and too ill to stand trial – several years later, his condition has improved and regardless of his mental state in 2012, he was prosecuted because he was not fit to understand the process to which he was central.
  • Insanity and diminished responsibility defences are all about the mental state of the defendant at the time of the offence – so in any case like Mr Smithen’s where his health has sufficiently improved over time to allow for a trial, it remains open to him to argue and / or for the court to find, that his offending was explained (insanity) or partially explained (diminished responsibility) by his mental state.

PUBLIC INTEREST

You might wonder what difference all this makes, especially if Mr Smithen was given a restricted hospital order in 2013 after being found unfit to plead; only for his recent manslaughter conviction to give him a … restricted hospital order?! There are a couple of things to say: the first being that there is an obvious difference between the following two types of patient –

  • A person with serious mental health problems who hurts another person when they were very unwell and did not know what they were doing.
  • A person with serious mental health problems who hurt another person when they were very unwell, but who did know what they were doing.

When it comes to the point where Mr Smithen is being considered for discharge from hospital, or any other patient who has been through this process in a similar way, the Mental Health Unit at the Ministry of Justice, as well as the psychiatrist in charge of their care, will have to give consideration to the risk to the public of release. This is the purpose of s41 Mental health Act: to protect the public from the risk of serious harm and it is what distinguishes a hospital order under s37 from a restricted hospital order under s37/41.

So it’s easy to see why a finding of guilt for manslaughter matters to the overall assessment of risk to the public, especially given it implies very strongly the relationship between his offending and his illness – it was NOT found to be directly causal. If you open up my blog and enter any of the legal terms for which I’ve given hyperlinks in this post, you will find other posts with particular examples that have occurred over the years.  And if you want to read an excellent book on all this, get yourself a copy of the book in the header image, above – Mental Health and Crime by (LSE Professor) Jill Peay.  My favourite book on all this MH-CJ stuff.

And so the familiar saying that “justice delayed is just denied” is not always true! – where an offender has serious mental health problems, some delay may mean that necessary to support and care can be given to a suspect or defendant and that this allows for a trial to occur which subsequently assist in protecting the public from serious harm.


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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A Safeguarding Call

The recent conclusion of an inquest in to the death in 2016 of Mr Luke Leggatt in Canterbury has given rise to a social media debate amongst police officers about the East Kent Hospitals NHS Foundation Trust’s reaction to Coroner’s process. Mr Leggatt had been taken to the hospital by his brother after taking cocaine and having resisted assessment or any treatment for this, had left the hospital. The police were not called when he walked out and he  tragically died of a heart attack, caused by a fatal level of cocaine toxicity.  Faced with an obvious degree of criticism, the East Kent Hospitals spokesperson announced that they have changed their policy on patients who walk out of A&E to make sure that every such patient is subject to a ‘safeguarding call’ to the police irrespective of any assessment of ongoing risk to that person.

Job done – over to the police.  Settles everything, doesn’t it?  I have at least few dozen questions and observations about this, not least because of how it appears to have been done.

Whilst missing patient / missing person investigations can often be frustrating to officers, the potential seriousness of each case is widely understood and most officers are told that one of the easiest routes to disciplinary procedures, is to be casual about them. What is more likely to promote casualness than a number of investigations in to people who are not at risk, reporting, it would obviously seem, to create the impression that another organisation has ‘done something’ to cover it’s back after a tragic, adverse event?

MISSING REPORTS

Here is just some of what a police officer would want to know from an A&E Department or any hospital reporting a patient absent, absconded or missing. Even if a person is at immediate and obvious risk where you start with crews looking for people nearby and making the urgent and obvious enquiries like “Did they go straight home” or “are they nearby to the A&E?”, the force would still try to have one officer gathering this information whilst a search begins, to maximise information and lines of enquiry if searches have to widen and investigations deepen. This stuff can be critical in the ‘golden hour’ of a vulnerable person being missing.

What has the reporting organisation done prior to ringing the police? – if nothing, why not?! … missing patients are still a hospital’s responsibility to a degree, certainly until the police are sufficiently briefed to take over the matter as a missing person’s investigation. It should always be borne in mind that missing patients and missing people are NOT the same thing, for what should be obvious reasons. The starting point is that hospitals owes a duty of care and that this cannot be entirely passed to the police with one phone call which says, “Michael Brown walked out: here’s his date of birth and address”. This is also about not duplicating effort, especially in more urgent cases.

  • Name of the person who is being reported missing
  • DOB / address / phone number / description
  • Details of anyone known to them – Next of Kin; person who brought them in.
  • Circumstances in which they went missing – this means more than “walked out of A&E”:
  • Why were they thought to have come to A&E?
  • What condition were they complaining of?
  • How long did they remain there?
  • Is there any reason at all to question in law their mental capacity to take their own decision to leave? – who did that capacity assessment, when and why?
  • What are thought to be the medical risks to this individual? – not just on this presentation, but from any hospital records, is anything else relevant to the investigation or risk assessment?
  • If no assessment of capacity, because there was no reason to question their capacity; why is the report being made to the police, given that people are entitled to leave if they wish and, although it’s rude and inconvenient, they’re not obliged to ask permission or tell the hospital.
  • What are thought to be the medical risks to that individual of having left?
  • Given that there are some limited situations in which A&E departments and hospitals can hold people, why was this not done in this case? – again, this is not a criticism: it is about the police understanding whether it is because the hospital themselves believe that no legal grounds existed … that, in turn, may influence how the police make their legal decisions.
  • Precise circumstances of leaving: did they tell staff they were leaving and leave against advice; did they slip out unobserved? – because this begs further questions.
  • What direction did they go? – are they known to have left hospital grounds or could they still be on hospital grounds?
  • Extent of any search of hospital undertaken by hospital staff / security – if we can’t rule out the patient leaving the hospital, I’d be asking security and staff to search it (because we have had patients turning up dead four days later in toilets that weren’t searched).
  • Any available CCTV of what the person last looked like when they went missing.
  • Bearing in mind that the police will often be entirely unable to make an assessment of whether or not a person is ‘safe and well’ (medically speaking), and given an obvious lack of legal powers over people in a lot of circumstances, what exactly are the police being asked to *do*, strictly speaking?
  • This question is about way more than pedantry: it goes to clinical leadership of a clinical situation that the police cannot fully absorb. If the answer is “once found, call an ambulance”, fair enough – but any request the person be ‘brought back’ to hospital will invite questions about what legal powers are open to the police in that medical situation, especially if a person has not been assessed as lacking capacity.

CAPACITY & UNWISE DECISIONS

This list is not exhaustive – I can think of other questions and issues that would be relevant in some cases. I wonder if the hospital, described in the press article, as “under extreme pressure due to staff shortages” actually has the organisational capacity to sit down with officers and answer these questions for everyone who walks out who is not thought to be at specific risk?!<

And it invites this obvious question:

Are we saying that this process will be what the hospital attempts to initiate if a sober adult man attends on a Friday night because of a cut to his hand from a DIY accident but becomes bored of waiting whilst appreciating that A&E are struggling to see him in four hours because of all the critical, trauma and alcohol related cases coming in like heart attacks, car crashes and assault injuries? Surely, once it’s noticed he’s not there, you get reception to ring him on his mobile number (which you took during booking in) to wonder where he is and he’ll say something like, “Just appreciated you’re really busy on a Friday night – I’ll bear with it tonight and come back in the morning when you’re less busy.” Are we seriously saying that this means the hospital will phone the police to make a ‘safeguarding call’?!

Frankly and bluntly, what on EARTH for?!!? … a capacitous adult, exercising a lawful choice – even if it’s unwise, it’s still lawful. What would the police do on arrival that a phone call couldn’t try to do? Nothing – it’s this aspect of this sudden change of policy by East Kent Hospitals that risks being labelled ‘back-covering exercise’ … and it is being labelled as such on social media by officers reading the article. It also invites the other question, was this policy change discussed with an agreed with Kent Police so that the kinds of questions I’m raising here were raised with hospital managers? – and if not, why not?! It is my current understanding this wasn’t discussed with them and it amazes me to contemplate that because of the number times in my work the NHS stress that consultation is everything and working in partnership is key.

TRIAGE

There is also one question that arises for me here that has niggled at me all my service. I have dealt with reports like this, during all of my operational roles. What is always missing in those reports from the various NHS hospitals I’ve worked near, is two things –

  • Any obvious consider at the triage stage of mental capacity to take decisions, including that to walk out, for whatever reason – it strikes me that where there is no reason to question capacity (and bearing in mind that capacity in adults must be assumed unless there is reason to question it), this should influence how hospitals respond to adults making choices.
  • Any contingency planning for those who might leave, whether indicated or not – this article does not cover what the hospital thought the risks to Mr Leggatt would be if he left and on the one hand they called security but on the other hand didn’t stop him leaving.

As a hospital manager, I’d be interested in why staff were reporting people ‘missing’ to the police – another public organisation that I would also know by watching the news are “under extreme pressure”, unless there was an obvious reason to do so. But in fairness, Mr Leggatt presented whilst acutely intoxicated by cocaine and we know that consumption of cocaine can affect mental capacity to take decisions – it is, for example, listed as a mental disorder in the medical manuals and no attempt appears to have been made to keep him there prior, or to call the police at all. It’s all very well comments being made to say that hospitals can’t force people to things, but actually the law provides a framework for that, in extremis. Whether or not those frameworks apply in a given situation is a far finer judgement, but if you read the Kent OnLine article for yourself, you may form the view that I did: that there are a lot of things going on between the lines that are important and not being made plain.

There reasons to suppose a cocaine intoxicated, distressed adult man may be vulnerable on various grounds and that the police should have been called when he left – it strikes me that is the problem here: risks and vulnerability were under-estimated and a call that probably should have been made, wasn’t made .. one can only imagine why. I’d be interested to see what the Coroner’s verdict was or what any Preventing Future Deaths report may say (if there is one), but this stuff doesn’t stack up to a unilateral amendment that everyone who gets bored waiting in a busy A&E and makes a capacitous decision to leave should be subject to a ‘safeguarding call’ to the police.


IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


Telephone Triage

A curious thing appeared on the internet recently: a preventing future deaths report from the Warwickshire Coroner, which has been sent to the Chief Executive of Birmingham and Solihull’s Mental Health Trust (BSMHfT). It follows the death of a man by suicide, thirteen days after the BSMHfT street triage (ST) scheme had contacted with a man who ended his own life in a hotel. No details were given about why the contact with ST occured in the first place, but we know from the PFD report that it was contact by telephone. Amongst other concerns the Coroner had about record keeping by ST (there was none), point 5 on the PFD leapt off the page at me when I first read this.

  • 5) The purpose of the telephone triage was unclear – it was described as not being a mental health assessment … so what was it, then?!

And if it wasn’t a mental health assessment, what does it mean, if anything, for police officers who have ST schemes across the country where they become involved in police incidents because they believe the person needs MH assessment, often as an alternative to the use of s136 MHA? If I believe someone may be unsafe because of mental health problems and requires a level of assessment beyond my capability, are we saying that no telephone discussion can ever be a mental health assessment or that this telephone exchange wasn’t? … it’s not clear, is it?!

This fits in to the narrative unfolded by Her Majesty’s Inspectorate of Constabulary earlier in the year: that ‘street triage’ schemes needed clearer strategic objectives; as well as evidence of evaluations being ‘poor’ or ‘very poor’, according to the NICE Guidelines on the Mental Health of Adults in the Criminal Justice System (2017). We still don’t understand these things as well as we need to – I remain of the view they were set up too casually and some of the problems we’re seeing emerge were predictable and forewarned by some of us!

THE FIRST RULE

Over many years, I’ve heard a number of clinical mental health professionals say that the first thing you do when you undertake a mental health (Act) assessment is a physical health check, if for no other reason than to ensure there aren’t obvious concerns about other medical issues or alcohol or drug intoxication. I’ve seen the importance of this myself: how many times have paramedics turned up at s136 detentions made in good faith by officers, only for the good people in green to say, “Err … A&E: this is not a mental health matter.” Diabetes, brain tumours, encephalitis, meningitis, etc., etc., – all because a decent physical of basic observations was done by an experienced healthcare professional.

There was also that job when I was shadowing a street triage team … we walked in to a man’s house one evening after a GP, who had not attended his patient’s house to examine him prior to ringing 999 for the ambulance to serve to ‘send triage and section him’; and it was obvious to me and all my clinical qualifications (expired first-aid certificate) that the only thing needed was for this bloke was for him to be taken as soon as possible to A&E by ambulance. His head, stomach and foot were heavily swollen and largely purple: something the GP and his medical degree would have noticed himself if he’d bothered to turn up and examine the man before reaching for the 999 bat-phone In fairness to him, though, it was end of office hours on the Friday before Christmas and he probably had a family or a party to get to.

So as we’ve seen the expansion telephone based approaches to mental health, it’s important to understand what these phone calls are, starting as they do at a massive disadvantage that the clinician can’t see the patient. Is it really possible to fully,and properly assess someone’s mental health? There seem to be varying views on this; but it’s importance because of one simple fact: in most areas where ST operates, the nurses do not actually see the majority of patients face to face. There are some exceptions and ironically enough: West Midlands Police’s triage scheme with Birmingham and Solihull Mental Health Trust claims to see a small majority of all the people at the centre of calls, but they are the exception. In some areas, ST actually sees 15%-25% of people and the rest are supported by the provision of telephone discussion and information sharing. So it’s unfortunate that this PFD from the Warwickshire Coroner ironically relates to a job in the area who perhaps see most. And of course, in other areas, all of the ‘triage scheme’ is telephone based, with the nurse in the police control, acting in remote support and sometimes speaking to patients by phone.

NOT AN ASSESSMENT

So this question of whether telephone discussion is or can ever be mental health assessment is actually important to the vast majority of ST schemes and I would urge those involved in them, whether police or NHS, to have the discussion for the record: is telephone discussion never, ever or always or a mental health assessment? … and if not never or always, when is it ever?! Whatever actually was going on in the phone discussion to which the Coroner refers it was definitely thought to relate to someone thought by the police (or ambulance service) to be at risk because of mental health problems. But all we really know at this stage is that when after hearing the evidence in the inquest, it has caused the Coroner to be concerned enough to raise the question about what the purpose of it was, if it was ‘not a mental health assessment’ and the trust definitely stated it wasn’t.

Did the police or paramedics know this? … or did they think it was and therefore feel able to walk away reassured on the basis that an assessment had occurred?! Communication was and is always vital to joint agency working and police officers need to be careful to understand what has actually happened in an incident. There have been a few other Coroner’s incidents recently where officers have made assumptions about the nature and quality of healthcare assessments and then felt reassured to walk away, only to learn the very hard way (gross misconduct investigation) that healthcare professional hadn’t clearly communicated and in some instances, including this one, hadn’t made any professional notes about what happened.

The original point of ST, as outlined by the Prime Minister when she was Home Secretary and by various senior officers since, is to ensure more appropriate assessment of vulnerable people and this should lead, it was hoped, to a reduction in the use of s136 MHA and in the use of police cells as a Place of Safety under the MHA. It was further hoped this would, in turn safe police time and resources and I’ve written elsewhere about why I think in some cases, the opposite has occurred – I won’t repeat that hear, but Chiefs should think about it more!

PRACTICAL PURPOSES

Where my brain is completely seizing up is this – so all comments from mental health nurses welcome: is non-face-to-face discussion of someone ever a MH assessment? – or not?!

One-word, closed question.

Whilst I’m at it, I’m going to outline a related concern raised to my attention recently by an AMHP. In that AMHP’s area where he regular conducted a number of s136 assessments each month before the invention of triage, he would personally expect ‘at least a handful’ of people detained under s136 whilst so intoxicated by drugs or alcohol that they would be allowed 4-6hrs by him to sober up before his assessment – his colleagues would see other people each month and allow sobriety periods, also. He wasn’t complaining about the use of s136 on intoxicated people, except in the odd case here and there because the individuals were often found at risk on bridges, on high buildings or in positions where suicide was imminently accessible, if the choice were made. He also accepted a large proportion were found to be known to mental health services currently, or previously. His point was this, after discussion with his colleagues: they, as AMHPs, were *never* seeing people in such circumstances any more, or maybe 1 or 2 per month across the whole AMHP rota. Street triage were seeing them instead and his question was this –

Are mental health nurses in his local triage scheme assessing drunk / drugged on their own, whilst still intoxicated, in positions where they were previously being detained under s136 in order to allow them to sober up and be assessed? A section 136 is always at least two-professionals undertaking assessment in controlled conditions – sometimes three professional. Street triage is one MH nurse, usually operating alone (clinically speaking).

We still haven’t fully discussed all that we need to, in order to understand the new dynamics of these processes and on the day that publication is made of the IOPC deaths in and after police custody and contact report where, yet again, no specific mention is made of street triage despite the fact that s136 related deaths in or after custody have risen as have deaths after contact without custody, I think we need to start talking just to make sure we understand what’s going on here.


IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.