Mental health law briefing 207 – Prosecution of mental health staff
The prosecution of staff when a patient dies in detention under the Mental Health Act has recently been in the spot light when prosecutors announced that there was “insufficient evidence” to charge anyone with an offence following the death of Kingsley Burrell.
According to news reports, the CPS had considered the offences of unlawful act manslaughter, gross negligence manslaughter, misconduct in public office, assault and wilful neglect of a mentally disordered patient1. However, it is reported that there was insufficient evidence to mean that there would be a realistic prospect of conviction.
A contrary view was taken successfully in relation to Winterbourne View following the Panorama Programme. The relevant nursing staff were convicted of offences under Section 127 of the Mental Health Act which prohibits the ill treatment or wilful neglect of both psychiatric in-patients and out-patients receiving treatment.
There appears to be a growing trend to investigate possible prosecution where complaints of ill treatment arise, either as a result of a direct referral to the police, via adult safeguarding, or as part of a Coroner’s investigation. Where patients lack capacity, the police commonly also consider in such cases, prosecution under Section 44 Mental Capacity Act 2005 (which prohibits the ill treatment or neglect of those lacking capacity).
The statutory basis for adult safeguarding enshrined in the Care Act 2014 is likely to see an increase in such referrals.
The Health and Safety Executive are also increasingly active in the healthcare arena. Whilst investigations normally focus on the relevant corporate body, the health and safety legislation does also permit the prosecution of individual management staff responsible for a health and safety breach.
Given the increase in prosecution, legal advice should be sought at an early stage. It is important to ensure that care is taken in disclosure of documentation and of course where interviews under Caution take place under the Police and Criminal Evidence Act, there is a right to legal representation.
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This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.