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Brazilian Money Laundering

This week there was a very high-profile killing and within just a few hours, we heard that the offender had a history of mental health problems and sought help only the day before. Since that time and despite the fact that there are other obvious points of interest and lines of enquiry to establish a motive or reason for the attack which has destroyed a family and reached to the very top of government, the internet and social media have been replete with comments which show that little else needs to be known: the mental health history explains the crime.

I want to show talk you through a far less high-profile case which also hit the news this week after the conclusion of a trial to show how potentially complicated the relationship is between mental health and criminal offending. It concerned a robbery in Dudley, West Midlands in February 2015 and the defendant’s trial was concluded at Wolverhampton Crown Court on Friday. The various twists in the investigation and trial process show how complex things can potentially be but ultimately how these things are determined. Needless to say, it is not the sort of thing that gets sorted out in police custody in the hours or even days following arrest.

In February 2015 Tommy SMITH attempted to steal a Range Rover that was on a driveway but was interrupted by the victim, Peter CHURM. In a sustained attack using an 8inch knife which snapped during the attack, Mr CHURM was stabbed to the back of the head and neck and SMITH fled the scene. He later attempted to flee an address where officers had traced him during arrest enquiries and was detained by a police dog handler. SMITH was charged with offences including attempted murder and appeared at the Crown Court.

SECTIONED, UNFITNESS AND INSANITY

I want to distinguish between these three separate issues, which can come up during criminal proceedings –

  • ‘Sectioned’ – sometimes in police custody, suspects are ‘sectioned’ under the Mental Health Act 1983 before they are charged and an assessment undertaken about whether it is in the public interest to prosecute them. We still conflate the issue of being ‘sectioned’ with the possibility of being prosecuted – yes, you can found guilty of a crime even though you were ‘sectionable’ throughout the whole investigation and trial process.
  • ‘Unfitness’ – we hear of unfitness to stand trial and unfitness to plead at the court stage, but also of unfitness to be interviewed in police custody.  These concepts are all different to being ‘sectioned’, even where mental ill-health is involved and many suspects who require inpatient hospital care are capable of following criminal proceedings, partaking in their own trial and instructing their lawyer. Broadly speaking, that’s what we mean by unfitness.
  • ‘Insanity’ – this is a legal concept in criminal law, not a medical one so it should come as no surprise that insanity and the clinical criteria for compulsory detention in hospital are overlapping, but ultimately unrelated concepts. Everyone is assumed to be sane and capable of being held responsible for their actions unless they prove otherwise to the satisfaction of a jury.

Tommy SMITH, who was 17yrs old at the time of the attack, was charged with the attempted murder of Mr CHURM as well as other offences including burglary. In the first instance, the trial took over a year to start so that Mr SMITH was well enough to participate in his trial – unfitness is something that is determined by the mental condition of the defendant at the point of trial, not the point of the offence. This is in contrast to insanity, which is based upon the condition of the defendant at the time of the offence. Thus, someone who may have been incredibly unwell during an incident, could be perfectly fit to stand trial and yet put forward a defence of insanity.

That is what happened here: the defence put forward that he was legally insane and therefore not guilty of the offences and the whole question was put before a jury. They had to make the ultimate determination of the issues, not least because two psychiatrists giving expert opinion in court, disagreed with each other. They ultimately found, on the balance of probabilities, that SMITH was not insane – in other words, the requirement to show that “he did not know what he was doing or did not know what he was doing was wrong” was not satisfied in this case. However, they also found that he was not guilty of attempted murder, finding him guilty instead of the still serious offence of unlawful wounding with intent to cause grievous bodily harm and burglary.

So this means he is now a convicted criminal, held fully responsible in law for his unlawful actions towards Mr CHURM. The court must then move to the matter of sentencing him in connection with those offences.

SENTENCING

None of this so far means that Tommy SMITH wasn’t mentally ill: it just means that the particular nature of his particular condition means that he did not convince the court that he qualified for a defence to the charges because of insanity. It is quite a high threshold to reach, that of insanity – hence there are comparatively few findings each year of criminal defendants being not guilty by reason of insanity. A much lower threshold in connection with someone’s mental illness is that required for compulsory inpatient care under the Mental Health Act 1983 and this is the direction the judge turned after the jury’s verdict.

He was first of all remanded in to secure psychiatric care pending pre-sentence reports and this could have been under a number of provisions, the media coverage I have seen doesn’t specify it.  Section 35 MHA allows the Crown Court to remand for treatment and psychiatric reports – I’m guessing this wasn’t used, because reports were already available and used in the trial itself. Section 36 MHA allows the court to remand for treatment, during which time the Probation Service would be able to prepare the PSR; section 38 MHA allows the court to instigate an interim hospital order, which is something of a trial run for twelve weeks in hospital, to allow the court to understand whether or not a hospital order is the correct sentence, based on further advice from forensic psychiatrists. In sentencing this week, Tommy SMITH, now 18yrs old, was given a restricted hospital order under s37/41 MHA. This means he will be detained indefinitely and until such time as a review tribunal, authorised by the Ministry of Justice grants him conditional discharge from hospital.

Most importantly for anyone who might ask, why not just ‘section’ him anyway? – this process also means, having been convicted of serious offences and given such a sentence, that he will be subject to the public protection frameworks of MAPPA … Multi Agency Public Protection Arrangements. Alongside the conditional discharge framework in s42 of the Mental Health Act, this means there is considerable opportunity to manage any problems that occur once he is discharged from hospital, although that will probably be many years from now.

MENTAL HEALTH AND CRIME

I hope this disentangles various concepts that can come up during criminal investigation and trial where the suspect or defendant is thought to be mentally ill. It’s not often that they all come up during one case, which is why I decided to do this post. We should keep in mind, most people who live with a mental health problem are still capable, in theory, of being held responsible for their actions in a criminal court. Whether we chose to do so, is quite a different matter! Generally speaking, the less serious the alleged crime and the more serious someone’s illness, the less public interest there will be in a prosecution. The more serious the offence or the more risk there is to the public at large, the less relevant someone’s condition becomes to the police or CPS charging decision and the more important it is to let the courts make the necessary decisions against being able to fully weigh-up the relevant factors about fitness, insanity or sentencing.

Ironically enough, where someone is found unfit to plead, where they are found insane or where they are fully convicted of the offence, it remains open to the court to consider imposing a hospital order (s37 MHA) supported by a restriction order (s41), where necessary. So a restricted hospital order can be diversionary mechanism for someone who cannot participate in the trial process, it can be a diversionary mechanism for someone who is found legally insane and is therefore not guilty; or it can be a sentence in its own right after a full finding of guilt. It is therefore really important not to conclude anything about the relationship between mental disorder and crime just because a particular defendant has a mental health problem, was prosecuted or received a hospital order – those are just broad legal concepts and frameworks: each case needs to be treated on its individual merits.

What has all of this got to do with Brazilian Money Laundering, you may ask?! – Detective Constable Pete MILLER from West Midlands Police, the investigating officer in this case, knows only too well.  This tweed-wearing, criminal hunter’s devastatingly thorough professional skills we’re brought to true detective-readiness only when one of his former uniformed inspectors made him learn the importance of going the extra mile in the matter of ‘the Brazilian Money Laundering job’ that had started to appear doomed to collapse … and has never let him forget it since. 😉



Tour of the new Patchway Police Centre. Inside a custody cell.
Photo by Dan Regan
04/08/2014
Reporter - Rachel Gardner
Copyright - Local World

Spit Hoods and Child H

That was quite an unexpected day! The IPCC published a summary of one of their investigations along with the recommendations they have made to Sussex Police following a series of serious incidents in which a young person was arrested or detained. Sussex Police have accepted that a total of 12 police officers misconducted themselves and have instigated either disciplinary procedures or have given management advice to those still in service – two have since retired.  The media coverage has been considerable, raising more questions for me than it answered.

It’s clear things went wrong: the Deputy Chief Constable of Sussex Police admitted as much on early morning radio and that has been repeated throughout the day. In addition to undertaking disciplinary procedures and giving advice where thought necessary, Sussex has stated they have reviewed policies and procedures, including around so-called spit hoods or spit guards, suggesting that there needs to be a debate with the College of Policing about these devices. That’s when my phone began to ring and I found myself in a small room at BBC Birmingham talking to Radio FiveLive (1:12:50). Of course, despite the fact that the College Press Office made it clear before the interview that we couldn’t talk about the specific case – after all, we’d read the news that morning but the College isn’t an automatic party to IPCC investigations and we hadn’t known of it previously! – the second question of the interview took us straight to it, “But she was ELEVEN!?”

These detentions clearly involved a difficult and challenging sets of circumstances and give rise to very sensitive issues. Perhaps the gravity of how Child H’s family are looking at this can be seen from the opinion of their solicitor who described this as the most “inhumane and degrading” case of a child being detained in police cells. I can’t stress this enough: stuff went wrong here, although the reasons behind those failures aren’t clear from public media coverage and I know no more about the particular case than you do. I want to read the IPCC investigation report, quite honestly!

SPIT HOODS

The controversy at the centre of these detentions was the use of a so-called ‘spit-hood’ or ‘spit-guard’ and many people will be unaware that a few police forces issue this equipment.  For those who are not familiar with them, such devices are designed to protect professionals from those who may spit or bite during restraint and there are various versions – one involves a more-or-less transparent mesh which means breathing is not restricted but bodily fluids wouldn’t easily penetrate the mesh. In another, an emergency restraint belt mainly intended to be used for restraining people’s legs is also claimed by the manufacturer as being something that can be used as an ‘improvised’ spit guard. Such a device is alleged to have been significant in the case of Thomas ORCHARD which involved a custody sergeant and two detention officers standing trial for manslaughter – and they are due to face re-trial in early 2017.

So we know these devices are and approaches are not without controversy and difficulty.

I’m aware in mental health services of a spit guard which involves applying the device to the professional, not the detainee. It is basically a visor that covers the face and ears and leaves the patient or detainee unrestricted. Each of these devices has different risks and benefits and – obviously, if worn by the professional, the visor can become covered in bodily fluids and restrict the professionals’ view; and there are probably more on the market from specialist companies that I haven’t come across because I haven’t taken extra time to research this stuff. But for all the various risks and benefits, one other point remains true: not using them at all also has risks and benefits. It opens up the reality of what would happen in forces where such devices are not avialable: manual handling of the head and neck and I’ll be honest, I’ve been forced to do that, because I am not going to let myself be spat at during my work.

Most police forces do not issue a spit-guard of any kind to their officers, but I’m aware that many forces and groups of frontline officers, have discussed these issues, because spitting and / or biting – whether by an 11yr old or a 21yr old with a neurological disability or from a 31yr old who has been arrested for burglary – is particular challenging behaviour to accept and manage, despite allowances that are made where officers know the person has a disability. Some officers who have been spat at have subsequently contracted diseases like hepatitis and meningitis and despite all the discussion today about the rights of those detained, especially children, it also remains true that police officers are absolutely entitled in law to take reasonable steps to ensure they are not assaulted at work – they do not have to tolerate the very real risk of being assaulted in any way. I have experience of my own of a detainee wanting to spit at me and I freely admit, in the absence of any other way of keeping myself safe, clean and unexposed to the unknown risks, I used phsyical force with my hands to ensure the face was pointed away from me. This business is not edifying and I’m sure it carries dangers in terms of placing pressure on the head and neck. Such risks are obviated with the use of an effective spit-guard, but it’s about how you trade off the various kinds of risk involved.

DIFFERENT APPROACHES

Of course, discussion on social media today has seen the police heavily criticised for ‘spit-hooding’ a child and Miss H, her mother, has called for the practice to be immediately banned. We can all understand why and when I listened to Miss H’s description of the shock and horror of seeing her daughter in custody, you couldn’t fail to wonder how it must have felt. I am the parent of an eleven year old and the very idea of this happening to him is extremely distressing to contemplate. But it raises broader questions than any individual incident can help us understand: how do we want the police to keep people safe within the laws we ask them to operate? We cannot demand the police remove children under arrest for offences to specialist CAMHS facilities because  –

  • They often don’t exist! – and we see the Government having to legislate to motivate the NHS to ensure adequate provision for children detained by the police under the Mental Health Act;
  • PACE says people under arrest should be taken to custody unless they require A&E treatment;
  • A&E have traditionally had their own views about the appropriateness of taking mental health patients of any age to a busy department, but especially so when they are distressed and exhibiting challenging behaviours – but we also know there are dangers in not doing so!

But this also gets us in to a topic in which I’m increasingly interested and to which Child H’s mother directly referred: by appearing to defend the general principles that sit behind police actions on the grounds that these are difficult situations and that ultimately, the police often keep people safe until situations have stabilised and formal assessment can take place, we see the restriction of a child using three separate pieces of police safety equipment as one where we define safety in purely physical terms. We thereby implicitly disregard this young person’s psychological safety and well-being. What do we think will be her anticipation of future encounters with police officers if she should become unwell in the future? – for some patients with mental health problems, physical harm is less concerning than psychological harm.

OTHER CUSTODY PROBLEMS

For those who have wondered about why no appropriate adult was provided during the various detentions, I would like to say a few things although we’d probably need to read the IPCC report to know why.  All I can say that may go some way to explaining why a child’s mother would not be permitted in custody on all occasions is that in three of the four detentions concerned, Child H was arrested for alleged offences, not detained by the police under the MHA. Perhaps this was a result of police being called to private premises where powers under the Mental Health Act for police officers are not available? … I don’t know.

But I do know that a person who is a victim or a witness in an incident subject to criminal investigation cannot act as the appropriate for the person under arrest. I also know that when Code C to the Codes of Practice to PACE was amended in 2012, the requirement for an appropriate adult where a person is detained under s136 of the Mental Health Act was amended – it now states (para 3.16 to Code C) that there was no role in the assessment process for the appropriate adult. Whilst I’ve always interpreted that to mean an appropriate adult should still be called for children and adults when they are first booked in to custody and their rights and grounds for detention are explained, there are varying opinions about this.

I’ve mentioned a lot over the last eighteen months, various people are confusing the proposals the Government are bringing forward about banning the detention of children in police cells. The proposed ban in the Policing and Crime Bill 2016 is purely a ban on the detention of children who are detained by the police under the Mental Health Act. Nothing will legally prevent the detention of children with mental health problems in custody where they have been arrested for offences and as more people are encountered in private premises than public places, it follows that where detention is necessary to keep someone safe, it will more usually be for offences than under the MHA and that’s what we see in the ‘Child H’ case: three arrests for offences, one detention under the MHA.

WORK TO DO

And of course the discussion that no-one has had here is about the broader health system: why was no health-based Place of Safety available to this 11yr old on the occasion where she was, in fact, detained under the Mental Health Act – a police cell shouldn’t have been necessary on that occasion according to nationally agreed standards on the operation of s136 that were in place in 2012. The medica report from the IPCC is very clear that there were broader failings in capacity and capability not just from the police but also from others that could and should have been involved here. Therefore this raises questions about the IPCC itself: it’s authority is over the police forces and officers where misconduct is alleged or suspected so what happens to the reports of the non-police shortcomings?

So the big questions: do all areas of the UK have in place the infrastructure and mechanisms to ensure that a young person exhibiting very challenging behaviour can be safely cared for, with dignity, irrespective of whether they were arrested for alleged minor offences or detained under mental health law and can we say this kind of thing would never happen again? If you look at the background reasons why this happened at all and then examine areas for their Place of Safety provision as they prepared to deal with the implications of the Policing and Crime Bill, there are some who think it is not possible to achieve and are lobbying for the proposals not to go ahead.

If you remember that there will be no change to the way in which the NHS can distance itself from the immediate or urgent need to provide sanctuary to children arrested for minor offences following a breakdown in their homes where parents are struggling to keep them safe, you are forced to conclude that officers may – yet again – be faced with little or. no option but to start deciding whether they use or improvise a spit-guard or whether they manually handle the head and neck of a vulnerable person to protect themselves from assault whilst trying to keep someone safe who probably needs urgent medical care.

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New ABD Guidelines

The Royal College Of Emergency Medicine and the Faculty of Forensic and Legal Medicine have today published a new best practice guideline on the topic of Acute Behavioural Disturbance.

All 999 response officers, first-responders and street triage police officers need to know about them bearing in mind the number of deaths following police custody or contact that are still linked by Coroners to ‘restraint related’ or ‘cocaine related’ excited delirium, now more often termed acute behavioural disturbance.

The whole classification and conceptualisation of these ideas remains subject to debate within the medical professions, and the document alludes to this by stopping short of regarding these phenomena as a ‘disorder’. My point has always been: regardless of medical taxonomy, Courts and organisations like Inquest tell the police service that people die from whatever it is that’s going on and that alternative approaches are needed to learn lessons from history because we can control or reactions and responses, even if we cannot control the background or underlying issues.

It’s only sixteen pages long and when you strip out references, intros and covers, it’s perfectly consumable and the medical language is not impenetrable to those of us with a first-aid certificate as our highest clinical qualification!  It essentially says –

  • Suspected ED / ABD is a medical emergency until otherwise proved.
  • Restraint and restrictive interventions need to be seen as a last resort, although they may be unavoidable.
  • Urgent action to end restraint as soon as possible will be necessary.
  • Emergency Departments have a role to play – by definition then, so do the ambulance service!
  • It highlights the police as the inevitable first-responders because clincial presentation is associated with highly unusual, bizarre and often aggressive behaviours.
  • There is NO minimum safe period of restraint.
  • Treatment with benzodiazapenes, antipsychotics or ketamine may be required.
  • It could be safer to consider the application of Taser to allow for medication, rather than manual restraint, becuase the impact upon the person concerned may well be less, given the risks of acidosis in ED / ABD cases.

LEGAL ISSUES

What the document doesn’t massively touch on but which will be relevant for any police or paramedics who become connected to such incidents, is the legal basis for acting – that will also be relevant for EDs. The detention of a person by the police may have already occured before the involvement of healthcare professionals and it could either be for a suspected criminal offence or under the Mental Health Act 1983.  Neither of those things matter massively, because neither of them allows for the treatment of the person in the way suggested by this guideline. The Mental Capacity Act will be of relevance to those considering treatment options and where a case of ED / ABD is honestly assessed, there will be few limits to what is urgently justifiable under ss 5/6/4B of the MCA because these situations will be regarded as life-threatening until otherwise assessed and that may well take an ED consultant to do so.
But this revisits that old debate about violence and aggression. Only this week, as part of #MHAW16, I’ve seen police forces proudly telling their public how much they’ve reduced the use of cells for those detained under s136 MHA and that the examples which remain are only those where detainees are ‘unmanageably violent’. Always makes me wonder whose skill base has been able to say, “This is not clinically significant”.  The RCEM / FFLM document tells us that fatal outcomes can be expected in 10% of cases, so the odds are difficult ones to ignore if we are talking about potentially fatal outcomes. In reality, it seems we still have officers taking unmanageably violent detainees to cells and detaining them there, without that person having been seen by paramedics, without them having been seen by a DR in ED and with knowledge that the FME may be 90minutes or more away from the police station.

One of the Oxford University Press handbooks for Emergency Medicine says, “Most people who are violent need a policeman [sic] not a doctor.” Exactly the same intellectual proposition can be said in different way, “Some people who are violent need a doctor, not a police officer.” In reality, some situations are going to need both: because I’m fairly confident you don’t really want me taking decisions about your medical welfare when you lack capacity to do so for yourself and when 10% of the time, the outcome could be fatal for you.


IMG_0053IMG_0052Winner of the President’sMedal from the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award