The Right Care, Right Person narrative is that policing needs to move away from what I will call the crisis care stuff in order to focus on crime. Of course, RCRP leaders are rightly keen to stress crisis incidents which involve crime or involve and immediate risk to life or risk of serious injury should still see a police response but there’s something we need to discuss about how difficult it is to draw boundaries around all of this. Behaviour which can occur whilst someone is mentally ill can transgress criminal law. This can be the case in situations where mental illness is causal, contributory or coincidental to the criminal conduct we see.
Professor Jill Peay wrote her seminal book on Mental Health and Crime in 2010 and amongst other things, it does a damn good job outlining how near-impossible it is to isolate human conduct and say “ABC is mental illness” and “XYZ is crime”.
- (1) – a mentally ill, psychotic woman is stood in a public place, shouting and swearing at something which witnesses cannot see – she’s reacting to hallucinations and is frightened because she is paranoid about being persecuted by the voice she hears.
- Is this mental health or crime?
- (2) – Imagine the same situation but there’s report she’s threatening to hurt people, albeit no-one specific.
- Is this mental health or crime?
- (3) – Imagine the same situation, but imagine she is in open possession of a medium-sized knife, albeit not doing anything with it.
- Is this mental health or crime?
- (4) – Imagine she is approaching people whilst in possession of the knife, albeit making no attempt to harm them, asking for help with her struggle against the voices.
- Is this mental health or crime?
- (5) – Imagine the police arrive and she lifts the knife, pointing it towards the officers and threatening them with it.
- Is this mental health or crime?
The original vignette and each subsequent development of it is an example of a criminal offence being committed – s5 of the Public Order Act 1986 (disorderly conduct); s4 of the Public Order Act (threatening behaviour); possession of a blade; s3 Public Order Act (affray), etc. If I’d kept going with ever-more-serious examples and we had seen her attack the officers with the knife, it could have been any one of a number of assaults, including grievous bodily harm or it could even have involved attempted murder or murder, depending on the outcome.
None of this is “just” mental health – all of the above descriptions involve behaviour which transgresses the criminal law, to at least some extent. The problem we have is when we take such events and then have to start deciding whether we have a substantially MH response or a substantially CJ response? – or whether we need a blend of both.
DIVERT OR ARREST
If we learned the police had responded to vignette number (1) and then used s136 MHA to remove the lady to a place of safety for mental health assessment and had not arrested her, I doubt anyone would be too concerned. There was no specific victim of her conduct, anyone who understands serious mental illness and the terrifying impact on hallucinations and delusions will understand why she was agitated and upset, so what public interest would be served in either giving her a fixed penalty ticket for disorder – or a caution or charge? You could probably argue the same for vignette (2), it’s only a little more concerning and no-one specifically targetted.
Version numbers (3) and (4) is where opinion usually starts to vary and indeed, Coroners and judges have said contradictory things about open possession of knives. If someone in such a condition is in overt possession of a weapon, perhaps we should think more carefully about it all? – yes, mental illness may be driving what’s going on, but is there a role for more thorough investigation with less-immediate diversion so we can, for example, know more about the background to things? Yes, someone may be mentally ill and they may require assessment under the Mental Health Act 1983, but it may also be true they’ve been arrested before and this represents an escalation of frequency in their offending. It may be, that they’ve been arrested and diverted from justice before, perhaps for similar things and it may be that once diverted, they just ran away from the mental health unit and refused to engage … it may be they’ve then caused harm before. It would have bearing.
All of this might mean, that not-withstanding today’s obvious appearance of mental illness, we need to give consideration to prosecution anyway – either now or at some point in the future and that proper, detailed discussion with mental health professionals is necessary to determined the way forward, jointly.
CRIMINAL COURTS
Version and (5) and anything more serious than that and I’d be inclined to say, subject to the “evidential test” being satisfied, prosecution should be presumed – threatening anybody with a knife should see someone placed before a criminal court, regardless of whether there was subsequent injury and it’s for one plain and simple reason – the criminal courts in this country are the only place where certain orders under the MHA can be made and the way they work, they are designed to protect the public from those more likely to inflict serious harm. Of course, a trial can also argue out the relevant issues as to whether someone is likely to cause such harm and psychiatric as well as other evidence can be adduced to help the court decide on these matters and psychiatric reports can be completed to assist the court. You can debate whether prosecution needs to happen immediately or not, but you’ll struggle to convince me the criminal courts should not be asked to play a role in determining the appropriate balance between ensuring someone’s right to healthcare and the broader protection of the public from the risk of serious harm.
It was twenty years ago I first undertook a massive piece of work on diversion and it involved reading 10,000 custody records (yes, literally all of them) to understand how many people presented under arrest to the police with concerns for their mental health. The dissertation I did for my Master’s degree in criminology and criminal justice at Cardiff University led to me realising the police, in effect, operate diversion where the grounds for admitting someone to hospital under the MHA are met. The clear conclusion was: if you’re thought ill enough to require admission, you’ll be admitted to hospital without action taken for the criminal offence which led to your arrest; if you’re not that ill, you will be investigated and prosecuted on the same terms as anyone else arrested for something similar but not mentally ill.
There’s a problem with this, if you haven’t spotted it? – the threshold for hospital admission has been rising for decades and it’s unconnected in law to the concept of criminal liability. Although the words in the MHA to justify compulsory admission are unchanged since the Mental Health Act 1959, the practical interpretation of those words by Approved Mental Health Professionals and doctors, has changed a lot over time. We once had over 100,000 inpatient psychiatric places in England and we now have fewer than 20,000 – that alone should tell you we apply the criteria differently in practice, even though the words remain the same. Plenty of people who would have been ‘sectioned’ in 1960 / 70 / 80 will not be ‘sectioned’ now – so if it turns out the police are operating a proxy rule that anyone who is ‘sectioned’ will not face prosecution, it means more people being prosecuted when they are more seriously ill than they were in the past. We’re subliminally criminalising more and more people. And of course, the threshold for MHA admission is nothing whatsoever to do with the evidential threshold for criminal prosecution or conviction.
How MHA admission should affect our weighing of the public interest test is another question – we could debate that one all night and day.
POLICE ROLE
The police tell us they are over-used for mental health crisis care and that this detracts from them focussing on their core role, of crime. The problem they have in sustaining this claim is that whenever crime involves one of us affected by our mental health, interest can be seen to drop. We know there is attrition for victims who live with mental health problems as well as under-consideration of where prosecution might still be required in the public interest. When we eventually stop obsessing about section 136 MHA and welfare checks, we will have to start realising that crime often involves vulnerable people and that understanding mental health is important in that context.
It is especially important when considering offenders – within my cohort of 10,000 people, I had 97 who required admission to hospital from police custody. Nine of them were admitted on a voluntary basis, the rest were ‘sectioned’, mostly under s2 MHA (for assessment). I looked up the arrest history of all 97 people and within that found a number of people with multiple arrests. One guy had been arrested fifty-five times in five years and you could just see escalating frequency and gravity in the allegations he was facing. Yet he’d only been convicted of a handful of minor matters nearer the beginning of his offending life.
Imagine a serious untoward incident review had he become necessary after a serious adverse event. What would we make of fifty-five arrests in five years, many of which involved ‘diversion’ under s2 MHA and no further action on the offences. It would be easy to ask why escalating seriousness had not seen consideration of prosecution amidst increasingly serious offences being committed. That’s where much more discussion in policing needs to take place – and RCRP isn’t touching upon this at all. In fact, one might worry it’s diverting discussion from it because of the narrative which is emerging notwithstanding the insistence of senior officers, that “the police don’t do mental health” and then looking at some crime incidents and characterising it as “not criminal” when in fact it is, like all the vignettes, above.
Whether you deal with it criminally is of course, a different matter – but recognising it is the first step to ensuring you’ve considered if carefully. And you want to make sure you have, given the reviews that may take place if you don’t.
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 