You might want to grab a cuppa before reading this one – it’s a little longer than normal because it touches on things I’ve been working on an arguing for twenty years now.
Given my interest all week in the sentencing proceedings in Nottingham, I paid close attention to media coverage and social media reaction to the court’s conclusion. Only a few days after it ended, we already know a referral has been made to the Attorney General to consider whether Mr Calocane’s sentence was unduly lenient and we know NHS England has announced a major review of his mental health care in Nottinghamshire. We remain to learn whether or how the police contacts will be reviewed, but I wouldn’t be surprised if the NHS England review touches on that, even if just in passing: other care reviews have seen joint consideration of criminal justice and mental health care interactions.
We’ve seen statements from senior people in CPS, mental health and policing and we know there is much still to be understood and untangled before the surviving victims and all victims’ families can begin to understand how this came to be.
There is ongoing debate about whether this was manslaughter (diminished responsibility) or whether the prosecution should have pushed for a murder trial. For what my view’s worth and for reasons I’ll explain if someone asks me to, I think the CPS and the Court reached the only decision they reasonably could, based on the law as it stands. However, that view is subject to the caveat that little is known about assessment of Mr Calocane at the time of the killings – he was not assessed under the MHA after his arrest, despite everything that’s known about his history involving repeated assessment and detention under the Act. The politics and optics of this are very different, however to looking at this in entirely legal terms. I appreciate people have their views on what the law should be – and fair enough: our MH-CJ laws have twentieth or nineteenth century origins.
INTEREST AND IMPORTANCE
What I think is of far greater interest and is far more important in the future, is the background to how we ended up with this unfolding on the city of Nottingham’s streets. We’ve seen a detailed timeline of contact between mental health services and police in the years prior to June 2023 and I’m not sure we’re fully exploring or understanding it.
- Mental Health Services —
- We know Mr Calocane was sectioned under the Mental Health Act 1983 on four separate occasions between 2020-2022.
- We know he disengaged from community mental health services after discharge from hospital on those occasions – he stopped taking medication and lied about his whereabouts and compliance with treatment.
- We have also seen that Mr Calocane was detained on some of those occasions under s3 MHA (treatment) and yet I’ve not read anything about whether he was considered for or subject to a Community Treatment Order. This is a legal mechanism which can contribute to ongoing oversight in the community with a mechanism to recall someone to hospital if, for example, they are no longer resident at their address, stop taking medication or don’t meet staff who are supervising them in the community. Why didn’t we hear about this in coverage of his MH care? –
- I’ll assume until I know otherwise because there was no CTO.
- We heard nothing about Assertive Outreach (AO) – this is a form of intensive community supervision for treatment resistant, hard-to-engage patients who often have complex lives and conditions like schizophrenia, inc the treatment resistant version.
- We saw comment from the Chief Executive of Nottinghamshire Healthcare (the MH trust) who said —
- “If a patient no longer engages with our services and support and they do not meet criteria to be detained under the Mental Health Act, they are discharged back to the care of their GP and can be referred back into our services at any time.”
- There are a number of psychiatrists online very seriouslly calling out this statement as outrageous and outdated. Some consultant psychiatrists in Assertive Outreach who think this case is resonant of mental health disasters in the 1990s which led to AO being conceived.
- Many trusts phased out or changed their AO provision and Nottinghamshire is one of those – AO provision is ‘merged’ with more general community mental health services, an idea some of those psychiatrists have maligned as non-workable.
- Nottinghamshire Police —
- We also know he was arrested by Nottinghamshire Police on three times for causing damage to other student’s flats in 2020.
- We know he was accused of assaulting a police officer during transportation to hospital in September 2021.
- We know the police were called after a report of assaulting and holding another student in their shared flat during January 2022 (albeit not arrested, due to no formal complaint being made by the victim).
- We know a warrant for his arrest was issued in September 2022 when he failed to appear in court in relation to the alleged assault on the police officer during the execution of a MHA warrant in September 2021.
- We know it was alleged (to Leicestershire Police) he had assaulted two colleagues at a warehouse job the month before the Nottingham attacks and was not arrested.
- Standard problems there in terms of cross-border knowledge – would Leicestershire officers have known about the background in to which they’d now been drawn?
- We don’t know how and why prosecution and non-prosecution decisions taken, in the context of what was knowable about the defendant’s mental health care (inc his resistance and disengagement from it).
- We don’t yet know what multi-agency discussions tried to take an overview of all this.
So yes: one might reasonably ask, was hospital discharge planning and community follow-up adequate in those circumstances? We know NHS England will be looking at this in the review they’ve announced. We know psychotic patients can disengage from treatment, not believing they are mentally ill and we know stopping medication abruptly can have very problematic effects on someone’s mental state and I repeat my point about being interested in whether a Community Treatment Order was considered after his s3 MHA detentions? (It can’t be used after s2 MHA admission).
In that context, where offending occurs, it becomes challenging to decide whether someone is best handled by the mental health or the criminal justice system but that’s a false dichotomy — not just in my view. Plenty of academics have written about this over the decades and the interface of policing and mental health when it involves crime allegations is the topic not really discussed. It’s laid bare in this example.
WHAT ABOUT THE INTERFACE?
We need to understand how all things are taken together, surely? —
It’s all very well arguing about hospital admission, discharge and community care; it’s all very well talking about arrests, prosecution and warrants – but this stuff overlapped and inter-connected, didn’t it? Offending behaviours took place and escalated (in frequency and severity) whilst Mr Calocane was mentally ill, no doubt consideration is given to ‘capacity’ to commit offences (not that capacity is a concept in criminal law, but many think it is) and consideration about what the public interest would be in prosecution for more minor offending – and I mean ‘more minor’ only relative to the horrors we’ve been contemplating over the last six months.
This is all common stuff at the interface of mental health and criminal justice.
There’s the issue here about a picture building up over time as the number of arrests increased and the number of hospital admissions and discharges followed by disengagement built. The weighing of the public interest in prosecution for offences is affected by the viability of alternatives and this is far from the only case where we end up talking about fatal outcomes where there were previous offences which were not subject to prosecution amidst concerns about someone’s mental health.
Diversion is all very well – but that requires cooperation with the offer as an alternative to prosecution. Just before Christmas, a driver knocked me off my bike and injured me when they were pulling out of a junction and whilst I was doing nothing wrong. The driver has been offered diversion to a driving improvement course as an alternative to prosecution for careless driving. But if she chooses not to engage with that re-training opportunity at her own expense, they will revert back to prosecution.
Why is mental health offending any different?
Mr Calocane’s first hospital admission under the MHA in 2020 followed him being arrested twice in the same day, for causing damage to doors in student accommodation. After his first arrest, he was assessed under the MHA and not deemed to require admission to hospital. We know he was then sent home and it’s not clear whether he remained on bail or subject to investigation for that initial incident of damage, bearing in mind he wasn’t “sectioned”. Regardless of that, he was then arrested again within an hour or so for causing more damage to a second property, re-assessed MHA and ‘sectioned’ for the first time. Nothing I can find helps me understand whether it was admission under s2 MHA (for assessment) or s3 MHA (for treatment). For me that’s important for the interface between mental health and criminal justice: whenever a person who had been arrested for an offence is ‘sectioned’ under s2 MHA, I would argue they should be kept on bail or under investigation until we know what the mental health outcome will be.
Then you decide whether to take no further action, whether to do some kind of informal, out-of-court disposal or to consider prosecution in the public interest. Detention under s3 (treatment) can be easier, because it means we know more about someone’s mental state and it’s easier to consider the public interest in a prosecution when we know someone has an established condition and requires treatment, especially where the offence is minor and there is no concerning history behind it.
ADMISSION FOR SECTION
But section 2 admission just means someone is thought to be suffering a mental disorder and they require assessment. Assessment might conclude a serious mental illness is in play and requires further inpatient or community treatment. It might conclude, however, the person was just temporarily affected by drugs or alcohol and there is no underlying condition. It may conclude someone’s condition is not acute and there would be no legal barrier to a prosecution even though they had been ‘sectioned’.
For these reasons, I’ve always argued arrested offenders should be kept on bail or under investigation until the police and NHS liaise with each other about what happened after hospital admission.
- Of course, progress in to the criminal justice system is subject to normal rules of investigation / evidence and it will vary from case to case – prosecution is not always possible.
- But nothing in law prevents the prosecution of a suspect where they were ‘sectionable’ under the MHA at the time of the offence or the time of their arrest.
- The public interest test in doing so would be assisted by knowledge the patient is not cooperating with mental health services.
Mr Calocane was arrested for a third time in July 2020 for causing damage to flat doors in student accommodation having been discharged from hospital and started to disengage from services. He was further assessed under the MHA and considered for admission – but what should we think about the fact it was his third arrest in three months, having disengaged from the services to which he was diverted after the first two arrests?
By September 2021, we learn again he is disengaging from mental health services, to the extent they were concerned enough to obtain a warrant to allow the police to force entry to his home for assessment. Questions were already arising about whether he is being truthful with the NHS about his medication and his whereabouts. During transport to hospital he assaulted a police officer and notwithstanding that he was sectioned after the assault, he was eventually prosecuted for this – thus proving if we need to, you can prosecute people for offences committed whilst mentally ill.
DIVERSION FROM JUSTICE
How many times do we think offenders who are repeatedly arrested should be diverted before we start to wonder if diversion away from justice is the appropriate way forward? We know, for example, Magistrates have powers to impose mental health treatment requirements at court, as part of sentencing for lower level offences. If we see examples of arrest, diversion, disengagement, re-offending and re-arrest, perhaps we should be thinking about the potential for MHTRs as part of community sentencing? – to assist in trying to keep patients engaged with the NHS.
The Mental Health Act and the criminal justice system operate in parallel to a large extent – we’ve erected these two massive state paradigms by which to manage social deviance and falsely reinforced that one system prevails in some circumstances, whilst the other kicks in when things are very serious. In reality, they need to work well together and be able to operate before things become seirous, I’ve written before why I think Liaison and Diversion services in police custody cannot get this right for us – we need to bear in mind Coroners have also highlighted problems.
The current discussion about policing and mental health is all about the Right Care, Right Person initiative, which I think we can fairly say is about police over-involvement in the crisis care aspects of mental heath responses. I’ve consistently said on this blog and whilst working on this topic over the last twenty years: we need more and better police involvement in mental health issues involving crime and we need to get beyond the all-too-simplistic and legally spurious view that behaviour displayed whilst mentally ill can never be subject to criminal justice intervention. We see reports and clear evidence that offenders with mental health problems are under-investigated and under-prosecuted where they commit offences and this must be especially true where there is ongoing suggestion of risk to others.
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, 2024
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 