The legal profession is failing people with mental health issues when accused of crime – and this must change

By Caroline Spencer-Boulton, NALP Licenced Paralegal, 24:7 Criminal Defence

There has never been a better time for the legal profession to ask itself if it properly serving clients with mental health issues, with mental health firmly on the agenda and more people suffering as a result of Covid-19 and lockdown,

I believe there has been a distinct failure by the legal profession, over the years, in obtaining proper and full assessments of clients suffering from one or more mental health issues.  This means the profession is letting down its clients and acting without the highest standards in mind. Even where there are clearly issues for concern, there has been a failure in many cases, to obtain appropriate psychiatric or psychological assessments. This needs to change.

I have specialised in the field of Criminal Defence for 14 years, the last eight years operating as a licenced paralegal preparing cases for my own clients both within solicitor firms and more recently on a privately funded client basis, I have been involved in the preparation of defence cases for a considerable number of clients with mental health issues.

The onus must be on the authorities and legal professionals throughout the UK to thoroughly consider a client’s potential mental health state from the outset. This should start at the police station interview stage. For example, adverse behaviour as a child or teenager growing up in care, or within a dysfunctional or disadvantaged family is currently deemed to be not enough of a concern for many legal representatives to consider further investigation or expert reports. 

Such incidents have led to miscarriages of justice in the past, yet still today not enough consideration is given to those with mental health issues who get caught up within the criminal justice system.

As a police station accredited representative, I have attended at police stations, and other venues, to advise and assist clients who are being interviewed by police.  At the police station when a client has been arrested and is being booked in to the custody suite they are asked if they suffer from mental health issues as part of the welfare check.  Many will not divulge that information due to a perceived stigma associated with mental health. 

One client, whose mental health issues were known to exist and a mental health nurse was on hand to determine whether the client was fit to be detained and fit to be interviewed, was declared fit by the nurse. I arrived, and in consultation with my client it was clear that they were unfit, because they were talking about angels and the devil, and clearly did not understand the reason for their arrest or where they were.  Having made representations to the mental health nurse and the custody sergeant I was advised that despite my concerns and representations the interview would proceed!  Within a minute of that interview commencing the police officer agreed that the client was not fit to be interviewed nor detained. The client was subsequently released into the care of their carer.  Clearly there had been a significant error on the part of the police force and mental health nurse.  Thus, it is imperative that police station accredited representatives and solicitors take the time to assess a client and perhaps, more importantly, make suitable representations to the police and mental health professionals if there are concerns.

Another client with mental health issues who was already serving a significantly long sentence advised me that they became involved in bad behaviour as they believed that they would be killed if they were not segregated.  That client had received no mental health care in the, approximately, 10 years they had been incarcerated.  Due to my concerns, a full psychiatric and psychological assessment and expert report was obtained.  It transpired that one of the experts believed that the client’s original case was unfair due to the client’s mental health issues and that the client should consider appointing a legal professional to look at their original case with a view to submitting a fresh application to appeal.  That client, with the diagnosis, evidence and advice submitted in the expert reports, was finally given mental health care and treatment in the prison.

These are just two examples of many I have dealt with, some in relation to submitting applications for leave to appeal, where I firmly believe a miscarriage of justice has taken place.

So, what needs to be done to address the issue? Here is what I believe needs to happen in order for the legal profession to better serve people with mental health challenges:

Assessment

An in-depth assessment by the Crown instructed expert psychiatrists and psychologists. Often these people are only given the defence expert report and prosecution evidence. The Crown’s experts should be given sight of the medical records of those they are assessing, and they should provide a full assessment and report on the person’s ability to understand the trial process and take part in it. They should not be asked simply to provide a report aimed solely at a continuation of prosecuting a defendant. Often the full mental health issues are not covered in these Crown instructed reports.

Start at the police station

Full and proper consideration/assessment by mental health nurses at the police station stage. The aim is to determine, where a client suffers from mental health issues, their real ability to understand and give instructions and/or an interview.  All too often clients are deemed fit for interview at the police station, when clearly, they are not.

Intermediaries

The use of intermediaries in court proceedings appears to be a rarity.  In a world where there is a significant trend towards those with mental health issues facing proceedings before the Courts, intermediaries should be instructed to assist the client during trials and other hearings/conferences where necessary.  This intermediary service is currently heavily overlooked.

Education of legal professionals

Courts of Justice

This applies to both defence and prosecution, to help them understand mental health issues and the treatment options. Further educating legal professionals to note and consider these issues if they have concerns when dealing with a client. Encouraging them to obtain those vital expert reports, from psychiatrists and psychologists, as to their client’s mental health. More often than not those assessments prove vital to the outcome for the client. 

Utilising help

Deeper consideration and use of Hospital Orders. Utilising the help available from the Probation Services and ensuring that the most vulnerable are protected by the courts.  

Rehabilitation

Prisons should revert to proper rehabilitation techniques. These appear to have waned over the past 10 years or so.  This should include suitable assessment of those with suspected mental health issues particularly within the Autism range, ADHD and PTSD; all of which can be complex. Appropriate treatment should be given to those serving custodial sentences.  Those with significant learning difficulties and/or low IQ should be provided with approved courses and treatment to help with coping and progression, as well as obtaining employment once released.  The government should put in place a service for those released from prison who suffer from mental health issues so that they may continue to be provided with assistance and treatment, in order to reduce reoffending behaviours.

Full expert reports should be obtained by defence solicitors/firms on their client’s behalf where and when possible. Legal aid funding is available for these expert reports where clients are legally aided.  For those clients who are privately funding their defence case, their defence team should advise them about the importance of obtaining expert reports on a client’s mental health issues – albeit that this can be at a significant cost to the privately funded client.

On a positive note, there appears to be a very gradual roll out of psychiatrists being available at the Courts to assess defendants facing sentencing.  A very tiny step, but certainly one in the right direction. However, my concern is that there are not enough hours in a day at the court for a full and proper assessment to be carried out. Therefore, in my opinion, without a full assessment, defendants will not be offered appropriate treatment or sentencing plans. 

Mental Health is a wide-ranging condition which is all too often either not fully considered by legal professionals and related authorities or considered at all.  This attitude and lack of proper consideration must change for future generations.

ABOUT THE AUTHOR

Caroline Spencer-Boulton is a NALP Licenced Paralegal from 24:7 Criminal Defence.

The National Association of Licenced Paralegals (NALP) is a non-profit Membership Body and the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). http://www.nationalparalegals.co.uk

Twitter: @NALP_UK Facebook: https://www.facebook.com/NationalAssocationsofLicensedParalegals/

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