Those of you who’ve been kind enough to read this blog since its inception will remember there have been plenty of posts which push the obvious idea the police are over-exposed to many demands which relate to mental health which are not something the police can adequately deal with. Favourite examples have always included the conduct of welfare checks, the undertaking of conveyance to move patients detained under the Mental Health Act 1983 and who require admission to or transfer between health care facilities. This is argument is what has underpinned a lot of the frustrated discussions which have happened at both strategic and operational levels for, quite literally, decades. Sometimes these conflicts and tensions are resolved at operational level with officers agreeing to “crack on” because it will consume fewer resources just to get on with something than it will to stand a position in hope of more appropriate services to take on board those responsibilities. Others have been known to stand their ground on principle, but there it is: conflict arising from police over-exposure to mental health related demand.
But those who’ve read from the beginning will recall another argument which I’ve very much suggested has always been the flip-side of that same coin. The police are under-involved in matters which very much are their domain and there’s an irony to this: it is the area of crime, where someone involved in the alleged criminal incident has a serious mental health problem. We see variance in how the police and, in fairness to them, the whole criminal justice system deals with mental health related crime compared to how it deals with investigation, prosecution and trial of incidents involving none of us so affected. My argument has always been that these two things – over-reliance and under-involvement – are related and we need both less of one thing and more of the other.
VICTIMS
We know from good quality research commissioned by Mind around a decade ago, that victims are treated differently, subject to that key variable of mental illness. In addition to being more likely than someone without a mental health problem to be a victim of crime, you are less likely to see your allegation taken forward by the police or prosecuted by the CPS, for example. Adults with a serious mental illness are three times more likely to be victims of crime than adults without; women with a serious mental illness are ten times more likely to be victims of violent crime then women without, to give just two examples. Attrition, as it’s known, is higher for those of us adversely affected by our mental health.
In one case in particular, a man with schizophrenia brought legal action against the Crown Prosecution Service after becoming victim of grievous bodily harm. He lost a part of his ear in an attack which led to the prosecution of the offender, but after material was made known to the prosecutor of his mental health, the case was suddenly and inexplicably dropped on assumption he would not be a reliable witness to events, because of his illness. In the legal challenge, this assumption was called out and he won his challenge, albeit too late to ensure his alleged attacker faced a trial. It goes to highlight the point well the criminal justice system need to make sure all decisions are objective and evidenced based on their individual circumstances.
We’ve all got stories as well: I recall a senior detective commenting on an incident in a psychiatric hospital after hearing “a section 3 patient attacked another section 3 patient.” “Well that’s not going anywhere, is it?!” It hasn’t even been investigated yet and here we have a senior person wanting to see an early conclusion without further action. Some section 3 patients may have been recently admitted, actively psychotic and genuinely unable to give account of the incident and be held accountable for actions if they offended in such a condition. But what if the NHS staff on that ward had witnessed it all? It may be the victim was extremely unwell and their evidence may be less robust, but if two nurses witnessed it, what does it matter? It would then move to the potential for the assailant to be held responsible.
SUSPECTS
This brings us nicely on to subjects and we also know there are problems there. I’ve written before about the misuse of the concept of “capacity” as a determining factor in whether a suspect could or should be prosecuted. I won’t repeat all of that because you can read why if you need to, suffice to say “capacity” is not a concept in criminal law so it’s not something we should be discussing when undertaking consideration or whether an unwell defendant is prosecuted. The legal questions always remain the same —
- Is there sufficient evidence to charge – this involves two parts, the actus reus and the mens rea. The act done and the guilty mind. Can we prove, for example, the person used their fist to punc the victim, intending to cause them discomfort or injury or actual bodily harm, etc.?
- Is it in the public interest to prosecute – this involves a careful balancing of many things, including the offender’s mental health and the impact prosecution may have on that. But it also includes factors such as offences committed with weapons, or against those serving the public or against vulnerable people, etc..
WHAT’S THE POINT?
All of this quick rattle through what I’ve covered before is to re-state the point that the police could and should do better and do more around the crime aspects of their mental health related demands. We are undoubtedly in a period where emphasis is on the police reducing their footprint on mental health, in their attempts to focus on that first side of the coin. But the second side also needs work and the risk now is that attempts at demand reduction in the crisis care aspects of policing will lead to “overpush” on crime, to encourage it to be dealt with as “a health issue” –
The post is motivate in part by an anecdote from a mental health professional. An incident had occurred involving a patient with a difficult history, both of self-injury and violence to others. The patient had, in the past, served time in prison for violence and been ‘sectioned’ under the MHA. The incident itself involved an allegation of GBH being made after an assault on professional staff undertaking a community assessment and the police were called. Upon arrival, the person was encountered outside the location where the alleged offence occurred and it was stated the officers detained the man under s136 MHA and removed him to a Place of Safety for assessment, rather than arrest for GBH and undertake an investigation. Of course, I haven’t heard the police version of events, but the professional expressed concern someone would not be arrested and investigated for a serious offence.
For the avoidance of doubt, even where a patient is ‘sectionable’ or ‘sectioned’ under the MHA, it remains perfectly legal in principle, to prosecute them. Whether you prosecute is, of course, a different and difficult question – it should be an individual decision taken in the specific circumstances, but one reason it may well be necessary is this: only the criminal courts in the UK have certain powers under the MHA which may be necessary to ensure both the treatment the patient requires and the legal frameworks which are necessary to ensure public protection as far as it’s possible to ensure anything.
MAPPA and PART III
Now, you may well have a view about the idea that criminal courts are the only place who can impose certain orders under the MHA – you might wonder if it promotes the criminalisation of vulnerable people, requiring prosecution perhaps where it might not otherwise occur? This isn’t the case – the orders the courts alone can impose are known as hospital orders and in terms of care and treatment, they operate in a similar way to section 3 of the Mental Health Act. The difference is the public protection framework this places around that order. It limits, for example, the ability of patients to appeal to tribunals for discharge and where such tribunals do convene, they operate to different rules because of the criminal background. Where a hospital order under s37 MHA is restricted by an order under s41 MHA, it means the patient’s discharge is subject to a raft of checks and balances by the Ministry of Justice mental health unit.
Where patients who were prosecuted and sentenced to a restricted hospital order – which can be imposed by the Crown Court following any finding of guilt or following a finding of insanity or unfitness to plead. The courts also have recourse to other orders under Part III of the MHA which are about securing psychiatric reports or remanding someone for treatment pending trial. So it’s not so much about criminalising patients in order to access care, but about ensuring public protection and effective court processes for those patients whose offences are more serious and concerning, which can not be easily or confidently labelled as “a health issue”.
The relationship between mental illness and crime is complicated: whole books have been written about it and I’ve covered more detail about this elsewhere. What remains pertinent for this post is just to emphasise that being too quick to label more serious or repeat offending as “a health issue” without adequate investigation, risks failing to ensure people are held to account for their offending where they can be, and it fails to protect the public even where they can’t. That’s why the police and the CPS need to give proper and serious consideration to the investigation and prosecution of offences, because there is historic under-investigation and under-prosecution.
You can read mental health guidance from the CPS on both victims and suspects on their website.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2023
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – www.legislation.gov.uk
Mental Health Cop 