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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.

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College of Policing – Newsletters

We are in the process of setting up some College of Policing webpages on mental health and will be putting various items on there in due course.  This BLOG post is just a temporary way of uploading some materials, like the College’s newsletters, so they can be publicly accessed and very easily circulated via social media and email.

They will be placed on the College website as soon as I can get the pages created –

NEWSLETTERS

The individual newsletters are uploaded as PDF files and can be access by clicking the links on the relevant date –

  • March 2015 – outlined of the College’s work-plan for 2015/16 on Approved Professional Practice and police training.  An update on various activities the College has undertaken on behalf of or in support of police forces in England and Wales.
  • April 2015 – noteworthy cases and reports from 2015, including the new Code of Practice to the Mental Health Act 1983, Court of Appeal judgments and the inquiries of relevance from the Equality and Human Rights Commission.

This page will be updated and re-circulated from time to time.

______________________________________________________________________
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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Another Dozen Little Details

Again, your indulgence is craved on what is essentially a repeat-publication post.  I’ve argued that there are a dozen or so little nuggets of legal knowledge in the Code of Practice to the Mental Health Act that police officers really need to know in order to be effective but the introduction of a new Code of Practice (2015) on 01st April means that all the numbering and references have changed.  All of it is still there, but renumbered just to ensure that the police get confused all over again!  Not really – but it does have that effect!  So it’s back to the text books for us all and as the new Code is almost five hundred pages long, divided into almost forty chapters, it’s an awful lot to take in.  I’ve now managed to actually read it straight-through, having done similar with the old Code some years ago and having vowed never , ever to do so again!  But I haven’t been able to avoid it, since it’s actually now my job to know this stuff.

But if you’re not at the stage where you are prepared to give up a few days of your life that you’ll never get back – and why should you?! – here are those dozen details, under the new referencing system.  Whether you commit them to memory, or just focus on remembering the summary of what they’re about, it should improve your ability to police effectively in this area —–

  • Paragraph 14.17Don’t threaten patients with being “sectioned” to induce them to agree to voluntary admission
  • The threat of being “sectioned” should never be used to persuade a patient to enter hospital. How voluntary is it anyway, if it only occurred after being threatened with legal detention?
  • Paragraph 14.48Explain why the police are still needed at a MHA assessment if it’s conducted without a s135(1) warrant
  • Where a Mental Health Act assessment is going to take place in a dwelling but where no s135(1) warrant is in force, the AMHP coordinating the assessment should explain why police involvement remains necessary if it is sought.
  • Paragraph 14.56MHA assessment does not always have to be delayed until the effects of drugs or alcohol have worn off –
  • It is often said that “You can’t assess someone under the MHA whilst they’re under the influence of substances. This is the paragraph that shows this is not correct. The paragraph certainly advises delay where possible, but it may not always be possible.
  • Paragraph 14.89 Applications for admission under the MHA must be made to a specific hospital
  • It is not sufficient to specify the mental health trust to which the patient will be admitted.  But this is the paragraph that is often cited to show that you can’t make an application to a hospital that is full.  Begs the question how the CQC ever find 120% occupancy on wards, doesn’t it?!
  • Paragraph 16.11You can make applications for s135(1) warrants without previous attempts to gain entry
  • It is often said that you can’t obtain a warrant without previous attempts to gain entry having been made. This is the paragraph that shows this to be incorrect. It stipulates that if applications are made without previous efforts, AMHPs need to set out the reasons for the Magistrate. This is in order to draw their attention to the fact that they can and to the reasons as to why in this particular case.
  • Paragraph 16.38 The police station should not be the automatic first or second choice as a place of safety
  • This is the paragraph that custody officers and detaining officers should bear in mind when considering the use of the police station as a place of safety. What else did you consider or try, before resorting to it? If you can’t answer that question, you’ve got more thinking to do before seeing the custody sergeant. If you’re the custody sergeant, I’d ask the question!
  • Paragraph 17.7 Sedated patients should be accompanied during conveyance by a suitable professional who is trained in the care of such patients
  • This will normally not be a paramedic because they are not licensed to administer drugs to sedated patients. It will normally be a nurse of a doctor and officers asked to assist in the transfer of patients from one place to another, should bear in mind this requirement and ensure such a professional is involved.
  • Paragraph 17.34 Police involvement in the conveyance of patients under the MHA should be based upon them being violent and / or dangerous
  • This is obviously a far higher threshold than patients being resistant to admission or transfer and officers should be certain to ensure that they are acting according to this part of the Code. It may be that local protocols assume all coercion under the MHA should be done by the police: this appears to be outside the intentions of Parliament who gave others the power to do so and this paragraph sets the bar somewhat higher than a patient being merely resistant to admission / transfer.
  • Paragraph 27.38Voluntary patients cannot be required to seek permission to leave hospital
  • But they can be asked to inform staff that they are leaving. This is important in situations where officers are called to mental health wards to reports of offending, involving voluntary patients. The Care Quality Commission repeatedly warn of the dangers of de facto detention whereby patients under no obligation to remain in hospital are ‘denied’ leave for various reasons. Where a voluntary patient chooses to leave hospital, either briefly or completely, they should be allowed to do so unless the nurse of doctor involved applies a holding power under section 5 of the Act.
  • Paragraph 28.14The recovery of AWOL patients whose location is known is a matter for MH services
  • But the police can be asked to assist in the risks involved suggest it is appropriate. So where, for example, a s3 patient who has been granted s17 leave fails to return on time and telephone enquiries by the ward reveal they are at home, it is up to ward staff to co-ordinate re-detention. It is for NHS managers to ensure they have access to resources by which to do so.
  • Paragraph 28.22All unauthorised absences by patients should be reviewed to identify risks and prevent recurrences
  • It is a requirement that all absences be reviewed.  Given the frequent involvement of police resources in searching for patients who are absent, it seems reasonable to for the police to have an input into this process, especially because the police will have a record of that persons absence history which may cut across different hospitals or even different mental health trusts. That could very well assist the management of risks.

This list is NOT exhaustive: there are other paragraphs in the Code of Practice where it may be worth committing the thrust of it to memory but in order to keep this list manageable, I have capped it at a dozen things. I would encourage frontline police officers (in which I include custody and communications staff) to read the full text of these paragraphs and consider them in operational situations. They can make the difference as to whether you say “Yes” or “No” to requests that are made of the police and help with building a rationale or audit trail for why you did whatever it is that you did or didn’t do!

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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.