Health, Social Work and Related Services for Mentally Disordered Offenders in Scotland.

PART II: THE CRIMINAL JUSTICE PROCESS

This section addresses those aspects of the criminal justice system which relate to mentally disordered offenders and, in particular, police procedures, procurator fiscal decision-making, court disposal and transfers to and from prison. The roles of health boards and local authorities are also considered along with the requirement for joint planning and working.

2: INVESTIGATORY PROCEDURES

Background

2.1 When a person appearing to suffer from a mental disorder comes to the attention of the police, whether or not criminal proceedings are involved, a medical opinion should be sought immediately, either from the person's own doctor if the incident occurs within the person's own home, a police surgeon or a hospital doctor. This examination may take place within the person's own home, at a "place of safety" (normally a hospital), or in exceptional circumstances within a police station for instance when there is a continuing risk of violence.

2.2 When such a person is found in a public place, and not necessarily suspected of having committed an offence, but who is in "immediate need of care and control" may be removed by the police (under Section 118 of the Mental Health (Scotland) Act 1984 (the 1984 Act)) to "a place of safety". The Act defines this as a hospital or residential home for persons suffering from a mental disorder or any other suitable place which is willing temporarily to receive the patient; but does not include a police station unless in an emergency when there is no alternative place available for receiving the patient. Wherever possible, local arrangements based on an inter-agency approach should ensure that a mentally disordered person receives appropriate support and care. If a police station has to be used, then a police surgeon or other doctor should be readily available. The consultation paper which issued in July 1997 on ‘The roles and responsibilities of general practitioners and police in dealing with potentially violent mentally disordered persons in the community’ explains this process in more detail (2).

2.3 Where persons who might be suffering from a mental disorder are taken to a police station, for example, due to the seriousness of the suspected offence, they are often seen first by a doctor contracted to the police, namely the police surgeon, to assess the medical condition of people who are in police custody. The role of these police surgeons is to make an assessment of the individual’s fitness for detention by the police. The police surgeon should obtain any necessary medical background from the person’s own GP, if possible, before reaching a decision on his or her fitness. If the person is considered to be fit for detention, the police would deal with the suspected offender under the terms of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) as with any other suspected offender. If the mentally disordered person is considered to be unfit for detention, then they are considered for hospital placement under the relevant section of the 1984 Act. A report may still be submitted to the procurator fiscal for consideration of criminal proceedings. Some police surgeons may have little experience of dealing with mentally disordered people. In these cases assessment should be carried out preferably by an experienced psychiatrist who can then arrange appropriate mental health care, if necessary.

2.4 In some areas the operation of duty psychiatrist schemes, where experienced psychiatrists provide a prompt response to requests to examine people held in custody in police cells has demonstrated the value of the police being provided with an easily accessible psychiatric consultation service. In every case local arrangements between mental health services and the police should be in place.

2.5 The combined police, social work and health guidance "Interviewing People Who are Mentally Disordered: Appropriate Adults Scheme" (3) recommends that when the police interview an individual who is suspected of being mentally disordered, whether he or she is an accused, a witness or a victim, an "appropriate adult" should also be present. An appropriate adult should be someone who is completely independent of the police and, where possible, the interviewee and who has a sound understanding of and experience or training in dealing with mentally disordered persons or with the needs of a particular group. The guidance encourages the establishment of Appropriate Adult schemes throughout Scotland by June 1999, with police, social work and health interests locally nominating a lead agency.

Police Discretion

2.6 Where criminal behaviour is involved but only minor offences have been committed, the police may decide against charging and reporting the case to the procurator fiscal. In order to decide whether or not to report a case involving an alleged offender whose behaviour suggests that he or she may be suffering from a mental disorder, police need quick access to information and advice from health and social work services. Ideally local arrangements should provide for a single point of entry for referrals and for collaboration between health services (psychiatrists and community psychiatric nurses) and social welfare services (to include local authority criminal justice, community care and housing services as well as voluntary sector agencies). The police will particularly want to know whether the alleged offender is already under the care of the health or social services or whether to refer the person to one or both of these services before deciding whether charges should be brought. There should be hospital services available to accommodate mentally disordered offenders at short notice where they require containment for assessment or treatment in clinical facilities with an appropriate degree of security. This need may be independent of the severity of the alleged offence. Such individuals should not be left in custody while the process of law continues. In most cases a report will ensue and ultimately any decision to divert or remove the offender from the criminal justice process is a matter for the procurator fiscal, (see paragraph 5.18. While decisions about placement in the mental health system may need to take place urgently, decisions to drop charges should not. Discussion about this can take place with the psychiatric team involved in the patient’s long term care. If a mentally disordered offender is considered to pose a severe risk to others, there should be careful consideration of the security requirements. Hasty decisions should be avoided.

Deciding about Prosecution

2.7 As with the provision of information and advice to the police, there needs to be good co-ordination between those responsible for providing information and advice to procurators fiscal. Local arrangements should provide a single point of entry for referrals as stated in the previous paragraph. (See also paragraph 5.18.)

2.8 Identifying those alleged offenders who may be suffering from a mental disorder is critical to this approach. Basic awareness training for police officers is already included in probationer, constable and detective training, and the Appropriate Adults guidance (3) recommends additional training in this area, covering how to identify mental disorder, basic techniques for dealing with mentally disordered individuals and appropriate forms of questioning. Police may also be able to make better use of information which is already available about repeat offenders previously identified as having a mental disorder and ensure that that is communicated to the procurator fiscal in the report. Procurators fiscal will also take account of such information and would welcome approaches by others with a knowledge of the accused and his circumstances.

2.9 As well as effective joint planning of the service to fiscals, each agency needs to be in a position to commit the necessary resources. Local arrangements for direct referral by the procurator fiscal for psychiatric assessment should be available. The correct identification of alleged offenders with mental disorder and the alerting of the procurator fiscal to the suspicion is a key trigger for accessing specialist services. It is also important for the police and the procurator fiscal to establish whether repeat offenders have been previously identified as suffering from a mental disorder, before deciding how best to proceed with cases.

The Health Board Role

2.10 Mentally disordered people who come into contact with the law should receive care and support from health or social work services. Health boards should ensure that this provision is covered by appropriate agencies. The service specification should ensure that mentally disordered individuals in police custody are examined by an experienced psychiatrist within 24 hours of the request being made. Health boards should ensure access to appropriate beds so that, if admission to hospital is appropriate this can be arranged quickly.

The Local Authority Role

2.11 Local authorities contribute to services for mentally disordered offenders through their responsibility for planning and providing community care services in partnership with the NHS, through their responsibility for providing social work services in the criminal justice system and through their responsibility for housing services. They have statutory responsibility for providing mental health officers under the Mental Health (Scotland) Act 1984. In seeking to meet the needs of the mentally disordered offender, the role of criminal justice social work services is primarily concerned with providing information and advice for decision makers and with helping to access appropriate assessment, health and social care services. Their job is to complement the work of other local authority and health services in providing for those suffering from mental disorder who have offended. Housing services are a responsibility of the same unitary authority.

Joint Planning

2.12 Mentally disordered people have widely differing needs. Some require specialist services because of their offending behaviour but the majority can be looked after within the general mental illness or learning disability services. Multi-agency joint planning and resourcing of these services by health and social work agencies should be geared to meeting the needs of mentally disordered people who offend and, in particular, should provide, wherever possible, for their diversion from the criminal justice system at the earliest opportunity. Housing departments and other agencies will have an input where placement in the community is envisaged. Services for people with learning disabilities should be distinctively tailored to the health, education and social care needs of such persons.

2.13 A network of health and social care services, available to each police authority and procurator fiscal service, is required if the needs of mentally disordered people who come into conflict with the law are to be met and the right balance struck between meeting these needs and those of the public interest. Development of such networks should be an integral part of joint planning between the courts, police, criminal justice social work, community care and health services.

The Service Requirement

2.14 Health boards and social work departments should work together to develop services for mentally disordered people who come into contact with the criminal justice agencies through joint planning procedures which are already an integral part of the community care process. Health boards and local authorities should enter service level agreements with the criminal justice agencies to provide effective and flexible local arrangements for the initial assessment and treatment of people in their charge who appear to be mentally disordered. Procurators fiscal should be involved in discussions as to levels of service. These service agreements should cover:

the use of Section 118 of the 1984 Act ("removal to a place of safety"); the availability to the criminal justice agencies of "duty psychiatrists" and "appropriate adult" services; the facilities and services that can be used for mentally disordered people diverted from the criminal justice system; the provision of specialised accommodation for mentally disordered accused persons who might otherwise have to be remanded unnecessarily in custody; and the specification should address the 3 levels of service to be provided:

(1) emergencies within 24 hours;

(2) urgent cases to be covered within one week; and

(3) routine cases to be completed within 3 weeks.

the specification should also cover the training needs of those who will be required to operate these services on a day-to-day basis.