1. Assisting a detained patient to escape from hospital
I last posted on criminal offences created by the Mental Health Act on 15th January 2012. Since then, the case of Rebecca Martin has now reached a conclusion.
This case appears to be a prosecution under Sec.128. Sec.128 makes it an offence to assist a detained patient “to absent himself without leave”. The maximum penalty is 2 years imprisonment and/or an unlimited fine.
Rebecca Martin was a care assistant in a secure hospital for patients with learning difficulties and challenging behaviour in Suffolk. She developed a relationship with one of the detained patients, Luke Sparks, and helped him to escape from the hospital. He attacked a member of staff with a fire extinguisher and obtained the keys, while Martin waited outside in a car. Once free, she drove him to the Bristol area, where they were both arrested a couple of days later.
At Ipswich Crown Court on 29th March 2012 Martin was sentenced to 18 months imprisonment. It is reported that the Judge “described her as ‘naïve’ and said she had thought she was in love with Sparks and that he was in love with her. He said she was guilty of a serious breach of trust and had potentially endangered the lives of other people by helping Sparks to escape.”
2. Mental Health Professionals and Sexual Misconduct
Prosecutions like this are rare, although it is less rare for professionals and care workers to develop infatuations with service users. This appears to be equally common among both male and female professionals, although the reasons behind these inappropriate relationships appear quite different.
I have been reading a selection of disciplinary hearings reported on the GSCC website (the soon to be abolished General Social Care Council is responsible for registering social workers). It would appear from these cases that male social workers who engage in unprofessional sexual contact with female service users tend to be overtly exploitative. One male social worker, for example, threatened to section a female service user if she did not cooperate with him.
Female professionals, however, seem to become embroiled in intense, although ill-advised, emotional relationships which they perhaps see as nurturing rather than predominantly sexual or exploitative in nature.
One such example is that of Stephenie Reeves. In February 2008 she appeared in Preston Crown Court and was found guilty of “engaging in sexual activity with a person who had a mental disorder”. She was a psychologist working in a secure unit near Preston when she developed an inappropriate relationship with a 20 year old detained male patient which resulted in her pregnancy.
It was reported that she was “due to give birth next month to the inmate's baby, and the pair plan to resume their relationship when he is released from hospital”.
The Judge stated: "This involves a grave breach of trust on your part… You breached that trust by first of all allowing an emotional relationship to develop that was wholly inappropriate… Such a breach would usually invite a custodial sentence but, because of the extremely unusual circumstances, I feel able to depart from sentencing guidelines… It is not a case of you taking advantage of his mental disabilities for your sexual prevarication. You were not a predator.'' She was given a suspended sentence of 12 months.
2. Approved or not? Does it really matter?
Mark Francis was a social worker who fell foul of S.114 MHA. S.114 relates to the approval of mental health professionals to discharge the duties of the AMHP (and before that, the ASW). AMHP’s (and before 2008, ASW’s) can only exercise the powers under the Act to detain patients if they have been duly approved by the local authority. Additionally, since 2005, social workers have to be registered by the GSCC in order to practice as social workers.
Mark Francis was a very experienced social worker who qualified in 1984 and had practiced as an ASW from the mid 1980’s onwards. When it became a requirement to be registered by the GSCC in 2005, Mark Francis omitted to do so. However, he continued to practice as a local authority social worker, and as an ASW.
His employers initiated disciplinary proceedings, and he was given a final written warning for failing to register with the GSCC and working as an ASW when not registered, both being classified as gross misconduct.
Francis then belatedly applied to the GSCC to be registered, but his application was refused. He consequently appealed to the First Tier Tribunal (First Tier Tribunal, [2010] UKFTT 434 (HESC), 21 September 2010), which heard his case in September 2010. His appeal was dismissed.
Francis’s case may appear to be little more than that of a lone professional who somehow lost his way. However, the implications of his professional omissions are potentially very far reaching.
During the time he was practicing as an ASW, but without being registered with the GSCC, and therefore not being “approved”, any actions he took in exercising the powers of an ASW would have been legally invalid. Any application under the Mental Health Act would have been illegal. Therefore, any detention that arose as a result of his actions as an ASW, regardless of the merits of any individual case, would have amounted to unlawful imprisonment.
How many people did this apply to? It is not known. But such situations, while hopefully rare, as most AMHP’s are very conscious of the law and their role within it, are not unique. A firm of solicitors (O’Donnells) issued the following statement in February 2012:
“We are receiving substantial numbers of instructions from clients seeking clarification over whether their detentions over the last four years have been lawful. Applications made by one particular AMHP were unlawful as that person’s registration had expired.
It follows that, if an original section 3 was invalid, then subsequent renewals and any following CTO, will have been invalid also…We strongly suggest that anyone who believes they have been affected should seek legal advice as soon as possible as those who have been unlawfully detained or placed on a CTO may be entitled to compensation.”
The problem is – how is someone who has been detained under the MHA to know whether the AMHP who made their application was practicing legally or not?
The Code of Practice (4.50) states “AMHPs should identify themselves to the person being assessed, members of the person’s family, carers or friends and the other professionals present... They should carry documents with them at all times which identify them as AMHPs and which specify both the LSSA which approved them and the LSSA on whose behalf they are acting.”
I, and I assume all other AMHP’s, have an ID card issued by the Local Authority who approved me. It has a picture of me, my name, and a statement that I am authorised to act as an “Approved Mental Health Professional”. It also has the date my current approval period started, and the date it expires. I display it in a prominent position whenever I am conducting duties under the MHA.
However, it is very rare for anyone I am assessing to look closely at my warrant. And would they know what it meant in any case?
And unless they were old hands at this sectioning lark, how would they know about the instructions in the Code of Practice, and how would they know about the role and requirements of the AMHP, unless the AMHP told them?
The lessons of this are clear: if you think that at some time you may find yourself on the receiving end of an assessment under the MHA, then you should acquaint yourself with the Mental Health Act 1983, the Reference Guide to the Act, and the Code of Practice. Or read this blog.
Showing posts with label Rebecca Martin. Show all posts
Showing posts with label Rebecca Martin. Show all posts
Wednesday, 4 April 2012
Sunday, 15 January 2012
Criminal Mental Health Acts
Part IX of the Mental Health Act creates a number of offences relating to practice under the Act and to people with mental disorder. Some have greater implications (and usage) than others.
Sec.127 relates to the ill-treatment of people with mental disorder. It is an extremely singificant provision. It makes it an offence for staff or managers of hospitals and care homes “to ill-treat or wilfully to neglect” anyone receiving treatment for mental disorder in that hospital or care home, either as an inpatient or as an outpatient. It is also an offence for “any individual to ill-treat or wilfully to neglect a mentally disordered patient who is for the time being subject to his guardianship under this Act or otherwise in his custody or care (whether by virtue of any legal or moral obligation or otherwise)”.
This has a broad application – it is intended to protect anyone with a mental disorder, whether in institutional care, or living in their own home, which would include people with mental illness, as well as people with learning disability and older people with dementia. They do not ever have needed to have been subject to the Mental Health Act. The penalty for this offence can be up to 5 years imprisonment, and/or an unlimited fine.
Although this has been in the Mental Health Act since 1983, it appears that it was not used until 2007. It is reported that Liudas Poderis was the first person to be prosecuted under Sec.127. Mr Poderis was a care worker in a nursing home in Wilmslow, Cheshire. In November 2006 he attempted to suffocate an elderly man with dementia by placing a plastic bag over his head. This was witnessed by another care worker. In August 2007 he received a prison sentence.
Prosecution under this Section has since become much more prevalent. The police appeared to have become more aware of this offence since Poderis’ conviction, as in 2008 Tanya Paterson, the manager of a care home for people with learning disabilities, was found guilty of ill treatment of a 21-year-old woman “with an intellectual age of between five and eight by bullying, shouting and swearing at her, putting her outside in the rain and pushing her about in a hallway. The charges relate to a seven-day period in May 2007.” It was reported at the time that she had “initially been charged with counts of assault but they were replaced with the allegation under s.127 (1)”.
Since then, dozens of people, mainly staff in care homes and hospitals, have been successfully prosecuted for the ill-treatment and neglect of vulnerable mentally disordered people under this section.
Sec.126 relates to forgery and false statements. This section makes it an offence to forge or to deliberately make false statements in Mental Health Act forms such as applications under Sec.2, 3 or 4, and medical recommendations. It is also an offence to knowingly possess or hold such a false document. The maximum penalty for this offence is 2 years imprisonment and/or an unlimited fine.
I suppose that examples of falsehoods on these documents could include such things as stating on Form A6 (Application by an AMHP for admission for treatment) that you have consulted with the patient’s nearest relative when you haven’t, or even signing the form which among other things states that you have interviewed the patient, when in fact you haven’t.
It’s worth saying that inadvertent errors, such as putting the wrong name or address of the patient on the form, while possibly affecting the validity and legality of the paperwork, would not in itself amount to an offence under Sec.126.
So how often has Sec.126 been used? I haven’t the faintest idea. In the many years in which I have practiced under the 1983 Act (since 1983, if you’re asking), I have never in my personal experience come across any occasion in which I have been aware of an ASW or AMHP knowingly and deliberately falsifying an application for detention. I have also been unable to find any record of any prosecutions nationally under this section (although perhaps they may be blog readers out there who know differently).
The closest to a prosecution of an ASW/AMHP that I have discovered, is the cases outlined in my post When Nearest Relatives Object. These were both civil cases brought before the High Court. In one the ASW had made an application under Sec.3 despite knowing that the nearest relative had objected to the application. In the other, again relating to a Sec.3 application, the ASW had stated that it had been “impracticable” to consult with the nearest relative, when in fact he had avoided contacting the nearest relative, knowing full well that the nearest relative would object to the application. However, in neither case was a prosecution brought under Sec.126.
Sec.128 relates to “Assisting patients to absent themselves without leave, etc”. This makes it an offence to assist a patient detained under Sec.2, 3, or 4 (or Guardianship) to “to absent himself without leave”, as well as harbouring a detained patient who is absent without leave. The maximum penalty is 2 years imprisonment and/or an unlimited fine.
There is a current “live” example of a prosecution under this section. In October 2011 a patient detained in a medium secure unit for people with learning difficulties and challenging behaviour in North Suffolk managed to escape, and was missing for several days before being recovered.
In December 2011, at a hearing at Ipswich Crown Court, Rebecca Martin, who was a member of staff at the unit, pleaded guilty to assisting the patient to escape. The case was adjourned until the end of January 2012 for sentencing. It is reported that the judge told Martin that she had pleaded guilty to an extremely serious offence. “It is highly likely you will receive a custodial sentence. It is an appalling breach of trust when someone aids and abets someone who is suffering from a psychiatric illness to escape from lawful custody.” (Eastern Daily Press 15.12.11.)
Sec.129 relates to obstruction. Among other things, this section states:
“(1) Any person who without reasonable cause—
(a) refuses to allow the inspection of any premises; or
(b) refuses to allow the visiting, interviewing or examination of any person by a person authorised in that behalf by or under this Act or to give access to any person so authorised; or…
(d) otherwise obstructs any such person in the exercise of his functions,
shall be guilty of an offence.”
Furthermore:
“(2) … any person who insists on being present when required to withdraw by a person authorised by or under this Act to interview or examine a person in private shall be guilty of an offence.”
Anyone found guilty of these offences can receive a prison sentence of up to 3 months, and/or a fine.
What this means is that potentially AMHP’s have powers to order the arrest of people who are obstructing them in the execution of their duties under the MHA. I wonder how many police officers are aware of the powers under this section?
How many times have AMHP’s found themselves in the position of having to persuade a relative to allow them into their house so that they can assess someone under the MHA? On how many occasions have AMHP’s found relatives or other interested parties interfering with or impeding their efforts to interview a patient “in a suitable manner”? And yet how often has anyone been prosecuted under this section? Again, I am not aware of any such prosecution.
It is not generally in the nature of AMHP’s to use coercion in such a blatant way. AMHP’s usually try to get round such problems through negotiation. I know that, when confronted with such difficulties, I have usually been able to persuade the person to cooperate sufficiently to be able to discharge my legal duties.
It is a Section I have always been aware of in the back of my mind, but have never take advantage of. Even when AMHP’s are physically assaulted, they can be very reluctant to make a formal complaint.
(Digression: Although I have been physically assaulted on a handful of occasions during my social work career, some of which I have recounted in my posts on “Assault and Battery”, I have only once made a formal complaint. This was an occasion when one of my service users had physically abused her child. I had to accompany the child protection social worker so that the service user could give an account of the incident, and so that the social worker could tell her what action was being taken.
I could immediately tell that the service user was extremely angry and was potentially dangerous. The child protection social worker, however, seemed oblivious to this. I tried to warn her that we should leave, but she continued to go through her set agenda, oblivious to the increasing fury of the child’s mother.
Eventually, I took the social worker firmly by the arm and tried to lead her down the hallway and out of the door. The child’s mother, however, had other plans, and tried to block our way. As I pushed my way past her, and made a break for the door, she drop kicked me, striking my buttock. Hard.
On the advice of a team manager, I gave a full statement to the police, and even endured having to drop my pants while a female police officer took a photograph of my injured buttock. The service user was arrested and interviewed. She received a caution.)
While we’re discussing the whole issue of offences, I should mention Sec.139, “Protection for acts done in pursuance of this Act”. This provides valuable protection for AMHP’s and others against civil or criminal proceedings while undertaking their lawful duties, unless “the act was done in bad faith or without reasonable care”. This does mean that honest mistakes, or even incompetence, are protected from civil or criminal action as long as the actions were not done in bad faith. It’s worth knowing.
Sec.127 relates to the ill-treatment of people with mental disorder. It is an extremely singificant provision. It makes it an offence for staff or managers of hospitals and care homes “to ill-treat or wilfully to neglect” anyone receiving treatment for mental disorder in that hospital or care home, either as an inpatient or as an outpatient. It is also an offence for “any individual to ill-treat or wilfully to neglect a mentally disordered patient who is for the time being subject to his guardianship under this Act or otherwise in his custody or care (whether by virtue of any legal or moral obligation or otherwise)”.
This has a broad application – it is intended to protect anyone with a mental disorder, whether in institutional care, or living in their own home, which would include people with mental illness, as well as people with learning disability and older people with dementia. They do not ever have needed to have been subject to the Mental Health Act. The penalty for this offence can be up to 5 years imprisonment, and/or an unlimited fine.
Although this has been in the Mental Health Act since 1983, it appears that it was not used until 2007. It is reported that Liudas Poderis was the first person to be prosecuted under Sec.127. Mr Poderis was a care worker in a nursing home in Wilmslow, Cheshire. In November 2006 he attempted to suffocate an elderly man with dementia by placing a plastic bag over his head. This was witnessed by another care worker. In August 2007 he received a prison sentence.
Prosecution under this Section has since become much more prevalent. The police appeared to have become more aware of this offence since Poderis’ conviction, as in 2008 Tanya Paterson, the manager of a care home for people with learning disabilities, was found guilty of ill treatment of a 21-year-old woman “with an intellectual age of between five and eight by bullying, shouting and swearing at her, putting her outside in the rain and pushing her about in a hallway. The charges relate to a seven-day period in May 2007.” It was reported at the time that she had “initially been charged with counts of assault but they were replaced with the allegation under s.127 (1)”.
Since then, dozens of people, mainly staff in care homes and hospitals, have been successfully prosecuted for the ill-treatment and neglect of vulnerable mentally disordered people under this section.
Sec.126 relates to forgery and false statements. This section makes it an offence to forge or to deliberately make false statements in Mental Health Act forms such as applications under Sec.2, 3 or 4, and medical recommendations. It is also an offence to knowingly possess or hold such a false document. The maximum penalty for this offence is 2 years imprisonment and/or an unlimited fine.
I suppose that examples of falsehoods on these documents could include such things as stating on Form A6 (Application by an AMHP for admission for treatment) that you have consulted with the patient’s nearest relative when you haven’t, or even signing the form which among other things states that you have interviewed the patient, when in fact you haven’t.
It’s worth saying that inadvertent errors, such as putting the wrong name or address of the patient on the form, while possibly affecting the validity and legality of the paperwork, would not in itself amount to an offence under Sec.126.
So how often has Sec.126 been used? I haven’t the faintest idea. In the many years in which I have practiced under the 1983 Act (since 1983, if you’re asking), I have never in my personal experience come across any occasion in which I have been aware of an ASW or AMHP knowingly and deliberately falsifying an application for detention. I have also been unable to find any record of any prosecutions nationally under this section (although perhaps they may be blog readers out there who know differently).
The closest to a prosecution of an ASW/AMHP that I have discovered, is the cases outlined in my post When Nearest Relatives Object. These were both civil cases brought before the High Court. In one the ASW had made an application under Sec.3 despite knowing that the nearest relative had objected to the application. In the other, again relating to a Sec.3 application, the ASW had stated that it had been “impracticable” to consult with the nearest relative, when in fact he had avoided contacting the nearest relative, knowing full well that the nearest relative would object to the application. However, in neither case was a prosecution brought under Sec.126.
Sec.128 relates to “Assisting patients to absent themselves without leave, etc”. This makes it an offence to assist a patient detained under Sec.2, 3, or 4 (or Guardianship) to “to absent himself without leave”, as well as harbouring a detained patient who is absent without leave. The maximum penalty is 2 years imprisonment and/or an unlimited fine.
There is a current “live” example of a prosecution under this section. In October 2011 a patient detained in a medium secure unit for people with learning difficulties and challenging behaviour in North Suffolk managed to escape, and was missing for several days before being recovered.
In December 2011, at a hearing at Ipswich Crown Court, Rebecca Martin, who was a member of staff at the unit, pleaded guilty to assisting the patient to escape. The case was adjourned until the end of January 2012 for sentencing. It is reported that the judge told Martin that she had pleaded guilty to an extremely serious offence. “It is highly likely you will receive a custodial sentence. It is an appalling breach of trust when someone aids and abets someone who is suffering from a psychiatric illness to escape from lawful custody.” (Eastern Daily Press 15.12.11.)
Sec.129 relates to obstruction. Among other things, this section states:
“(1) Any person who without reasonable cause—
(a) refuses to allow the inspection of any premises; or
(b) refuses to allow the visiting, interviewing or examination of any person by a person authorised in that behalf by or under this Act or to give access to any person so authorised; or…
(d) otherwise obstructs any such person in the exercise of his functions,
shall be guilty of an offence.”
Furthermore:
“(2) … any person who insists on being present when required to withdraw by a person authorised by or under this Act to interview or examine a person in private shall be guilty of an offence.”
Anyone found guilty of these offences can receive a prison sentence of up to 3 months, and/or a fine.
What this means is that potentially AMHP’s have powers to order the arrest of people who are obstructing them in the execution of their duties under the MHA. I wonder how many police officers are aware of the powers under this section?
How many times have AMHP’s found themselves in the position of having to persuade a relative to allow them into their house so that they can assess someone under the MHA? On how many occasions have AMHP’s found relatives or other interested parties interfering with or impeding their efforts to interview a patient “in a suitable manner”? And yet how often has anyone been prosecuted under this section? Again, I am not aware of any such prosecution.
It is not generally in the nature of AMHP’s to use coercion in such a blatant way. AMHP’s usually try to get round such problems through negotiation. I know that, when confronted with such difficulties, I have usually been able to persuade the person to cooperate sufficiently to be able to discharge my legal duties.
It is a Section I have always been aware of in the back of my mind, but have never take advantage of. Even when AMHP’s are physically assaulted, they can be very reluctant to make a formal complaint.
(Digression: Although I have been physically assaulted on a handful of occasions during my social work career, some of which I have recounted in my posts on “Assault and Battery”, I have only once made a formal complaint. This was an occasion when one of my service users had physically abused her child. I had to accompany the child protection social worker so that the service user could give an account of the incident, and so that the social worker could tell her what action was being taken.
I could immediately tell that the service user was extremely angry and was potentially dangerous. The child protection social worker, however, seemed oblivious to this. I tried to warn her that we should leave, but she continued to go through her set agenda, oblivious to the increasing fury of the child’s mother.
Eventually, I took the social worker firmly by the arm and tried to lead her down the hallway and out of the door. The child’s mother, however, had other plans, and tried to block our way. As I pushed my way past her, and made a break for the door, she drop kicked me, striking my buttock. Hard.
On the advice of a team manager, I gave a full statement to the police, and even endured having to drop my pants while a female police officer took a photograph of my injured buttock. The service user was arrested and interviewed. She received a caution.)
While we’re discussing the whole issue of offences, I should mention Sec.139, “Protection for acts done in pursuance of this Act”. This provides valuable protection for AMHP’s and others against civil or criminal proceedings while undertaking their lawful duties, unless “the act was done in bad faith or without reasonable care”. This does mean that honest mistakes, or even incompetence, are protected from civil or criminal action as long as the actions were not done in bad faith. It’s worth knowing.
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