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May 7, 2021

Prosecuting mental health – accountability or criminalisation?

The government is set to increase the maximum sentence for people who assault emergency workers – such as police and NHS staff – to two years. That’s four times the maximum sentence for assaulting anyone else. Many campaigners and professional bodies see the move as a success. But is harsher punishment an effective solution? And what about incidents where the accused has a mental health condition?

We know that violence and abuse towards emergency workers has increased in recent years and during the pandemic. But we don’t know exactly how many of these incidents involved people in mental health crisis. Police records are inconsistent, and the mental health flagging system is not fit for purpose. Anecdotal evidence from lawyers suggests that incidents where poor mental health is a factor are common. One lawyer wrote on twitter: “Man charged with assaulting mental health nurses at two different hospitals this year, is it normal practice to charge patients with assaults they commit during the course of their treatment?”

In the past, some police have shied away from charging people who are unwell. But now there is a push to report and charge incidents involving emergency workers, including when the suspect is a patient in treatment for a serious mental health condition. Police and health staff argue that giving a pass to violent behaviour contributes to stigma around mental health and we shouldn’t assume that someone with a mental health diagnosis cannot take responsibility for their behaviour. People with mental health conditions need clear boundaries and accountability, they say, and prosecution achieves that. Prosecution certainly sends a clear message. But does it work to change behaviour? And is there a more effective way to support people to establish boundaries and accountability?

Health workers and police say that only those who “know right from wrong” and still “choose” to be violent will be prosecuted. But some psychiatric staff do not want to report incidents of violence and feel that their duty of care to patients is compromised by the push to report. This means that the response to individual incidents varies widely depending on the victim. Some hospitals now send warning letters asking patients to stop inappropriate behaviour as a first step. In theory, this internal safeguard avoids unnecessary police involvement and means that only people who are persistently violent will wind up being prosecuted. But this approach overlooks the complex factors that can contribute to the development of mental health conditions and violent behaviour and jumps to criminalisation.

Violence towards emergency workers in which mental health is a factor does not occur exclusively in clinical settings. It also occurs in our communities, where warning letters may not be an option. Mental health presents differently in different people, and some people in mental health crisis may be perceived as more threatening than others. Who is seen as ill and who is seen as dangerous is influenced by implicit bias surrounding gender, race, and other factors. A tall Black man behaving erratically in public is more likely to be seen as a threat than a small white woman exhibiting similar behaviour. We already know of incidents where people in mental health crisis have died during contact with police. A narrative that assumes people are behaving intentionally could lead to escalation rather than improving responses to those in crisis.

In nine out of ten cases prosecuted under the assault on emergency workers act from 2018 to 2019 the victims were police. Police officers who specialise in mental health insist that policy does not promote charge and prosecution. Unfortunately, there are few alternatives. Some psychiatric hospitals have trialled using restorative justice to respond to incidents, but this doesn’t preclude simultaneous legal action. Out of court disposal use appears to be low, despite evidence showing they can be more effective at reducing reoffending. And very little research has been done on the outcomes of criminal sanctions for people with mental health conditions.

As the government finalises plans for a new out of court disposal system, why not consider this group? A conditional caution with requirements designed specifically for those struggling with a mental health condition could provide both accountability and the support needed to improve boundaries and change behaviour. At the end of the day, no one should have to put up with abuse on the job. But we need to think creatively about approaches that actually address the harm caused, not fall back on harsh punishments that don’t work and may exacerbate existing difficulties.

This blog is written by Alexandra Kimmons, research assistant at Transform Justice.

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