Work in #socialcare &/or #mentalhealth is not an exercise in #HumanRights removal. The #law giveth, the law taketh away. #rights are not ours to withhold.
Category Archives: mental health act
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:
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.
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
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.
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.
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/
Doing the rights thing
So many nationalists talk about how great UK is. They cite our history, particularly 20th century history and the post-war society they grew up in. And I agree – for all its faults, post-WW2 UK hasn’t been a bad place to grow up in.
Our emphasis on justice, compassion, tolerance and human rights has created a pretty cool place to live. We have education, health care, protection for workers, unemployed people and the sick and disabled. We have a reasonable justice system without barbarity and access to legal remedy for all. It’s true that recent ideologically driven austerity measures have definitely impacted negatively on most of these advantages. None the less most UK adults today grew up with a working set of rights and safeguards before recent governments began trying to remove them.
What seems odd to me is the way that, whilst extolling our nation’s virtues, these nationalists often want to remove the emphasis on rights, tolerance, representative democracy and justice that made modern UK society so good in the first place.
Why is that? I think it’s probably because they don’t quite get the reality of Human Rights and what they’re in place to achieve. For years now the media and certain politicians have distorted the public’s perception of human rights with a parade of half-truths and downright deceptions.
My solution is to develop a training pack, primarily for care workers but actually relevant across society to help show people what’s at stake as the UK prepares to leave the EU. There is a lot of talk about scrapping our human rights. I think we need to be very, very clear about just what that means – and about what we want to come next. Knowledge is power!
Please get in touch if you have any suggestions for topics to include, FAQs to prepare for or any other questions or comments about this new project.
Privileged glimpses 25: Who put us in charge?
This series of blog posts first appeared a few years ago on a now defunct blog called ‘Care Training’. It was inspired by the training maxim of ‘making the unconscious conscious’. It is intended to take what really ought to be the most basic principles of health and social care and put them down on paper. The series isn’t only an exercise in stating the obvious though whatever the title might suggest. It’s actually intended as a philosophical foundation manual for workers and informal carers to help them get their care ‘on track’ and then to keep it that way.
The first of the Mental Capacity Act’s underlying principles is:
An assumption of capacity
This means that we need to begin by assuming that everyone we meet is capable of making this particular decision at this particular time unless we have reason to suspect otherwise. In other words that person is ‘Most people’ in relation to the ‘three types of legal status’ table below:
Three types of legal status
Make their own decision
Follow Mental Capacity Act 2005
|Mental Health Act
Follow Mental Health Act 1983/2007
|People whose capacity to make the decision is not in doubt||People who are not detained under the MHA but who lack the capacity to decide||People who (because of a mental disorder) are deemed to present a risk to self, risk to other or are at risk through self-neglect.|
This might seem very obvious and reasonable (in fact it is) but it doesn’t sit too well with common practice in a number of care environments. Let’s look at an example.
When I was still a young man I worked as a care assistant in a Learning disabilities residential home. Looking back I can see a number of problems with the way the home was run but at the time, having come into a system that was already established, I thought that this was how learning disabilities establishments were supposed to operate. I didn’t know any better.
One of the fundamental mistakes I used to make related to the residents’ ability to make choices. This mistake covered all sorts of decisions from what to watch on the TV to whether or not they wanted to come on group outings to the local swimming pool.
The house was set in its own grounds in a beautiful part of Lincolnshire and the lawn and garden were nothing short of stunning. The home employed a full time groundsman to keep everything in good order and he did an excellent job. Consequently, many of the residents used to enjoy spending time sitting under the trees in the grounds or walking around the landscaped garden.
However this wasn’t always possible. You see, along with all the other staff there, I would take it upon myself to stop residents at the door and expect them to explain to me why they were safe to go outside. If I wasn’t completely satisfied then I would prevent them from doing so – this wasn’t difficult because the doors were always locked and only the staff had keys. Only if I was happy for them to leave would I let them go outside.
The problem was that this was the wrong way around. I emphasised the word let in bold for good reason. You see it wasn’t up to me to let people do anything.
We use the word ‘let’ a great deal in health and social care but that implies an authority we do not usually have. I can only let a person do something if I have the legal power to prevent them – and usually I don’t.
It wasn’t up to me to let people go outside into their own garden. They went because they had a right to and unless I had good reason to interfere with that they didn’t need my permission at all.
A more recent illustration of this comes from the N. Cornwall Learning Disabilities Partnership NHS Trust inquiry that took place in 2006. There were 40 referrals to the POVA list (now the vetting and barring list) and many of them were to do with staff preventing people from using areas that they had a right to without good reason.
Whenever we are tempted to take control of other peoples’ choices it’s useful to begin by asking ourselves:
“Who put me in charge?”
Unless you can demonstrate that the individual lacks the capacity to make this particular decision at this particular time then nobody put you in charge. The person has a legal right to make their choices whether we like it or not.
Even if the person lacks capacity (in which case you may very well be ‘in charge’) you will still need to act in their best interests and that doesn’t automatically mean doing what is best for the staff or for the relatives.
People have the right to occupy their own space, to make decisions about when they get up or go to bed, to choose who they spend time with and whether or not to involve themselves in activities. They also have the right to disagree with us and to ignore the preferences of family members just as you have. Your relatives have no right to tell you what to do (assuming you’re an adult) and the same is true for your service-user with capacity.
Who put us in charge?