The mentally impaired client; don’t miss the signs. An article by Lesley Manley

Criminal Law

An interesting and insightful article from Lesley Manley of Church Court Chambers on mental impaired clients.

It is often helpful for the practitioner to have specific examples demonstrating the importance of the mentally impaired client obtaining special help when coming into contact with the criminal justice system. A purely academic approach will not suffice when dealing with vulnerable clients one might encounter in practice.

The practitioners’ job is relatively straightforward when a client has been diagnosed with an illness, learning difficulty or brain injury and the practitioner and court are aware from the outset of the person’s vulnerability. The practitioner can then consult with psychiatrists, psychologists, and arrange intermediaries for trial purposes if necessary.

Real difficulties arise when the solicitor or barrister does not know that the client is mentally impaired and/or has little reason to suspect mental impairment. A failure to notice or appreciate the fact that a defendant is mentally impaired can result in real injustice, hardship and suffering within the criminal justice system. People may stand trial when they are not intellectually equipped to do so. They may give evidence at trial in circumstances when they ought to be receiving assistance from an intermediary. They may be wrongly convicted. They may also be remanded in custodial settings or receive lengthy custodial penalties when in fact they should have been diverted to hospitals or institutions where they will receive care.

In the recent case of R v Dixon 2013 EWCA Crim 465 where a young defendant with a low IQ was tried for murder the court directed the jury that they could hold against him his failure to testify even though it was accepted he had a low IQ and had been provided with the assistance of an intermediary. In this case the defendant’s need for assistance had been identified by those representing him. It is vital that a defendant’s need for special help is not overlooked.

The case studies set out below illustrate how difficult it can be for the busy practitioner who is not a qualified doctor, let alone a specialist, to identify when expert opinion should be sought in the context of whether or not a defendant is mentally impaired.

Routinely in practice one encounters those afflicted by drink or drug addiction problems, naturally it does not follow that those people are in any way suffering mental impairment to render them unfit to plead or stand trial.

Indeed one frequently, in practice, encounters clients who after years of sustained drug and alcohol abuse are amazingly unaffected in terms of physical damage. Not every client suffering from alcoholism or drug addiction is mentally impaired. Similarly not every client who suffers from an inability to respond speedily to questions, demonstrates bad behavioural problems or even mental illness is mentally impaired.

However the solicitor or barrister should be alert to the fact that on occasions a client will have a serious mental impairment problem that needs to be investigated in the interests of justice.

In cases where clients have not come through formal referrals from institutions it can be very difficult to appreciate the client is mentally impaired and to get information as these cases studies demonstrate. The client or his/ her Dr not even be aware that mental impairment is an issue. The client may have had accidents or injuries during childhood ( now long forgotten)and be unaware there has been neurological damage as a result.

CASE STUDY ONE

I was instructed to represent Mr A. Mr A was a difficult and uncooperative client. He was nearly always under the influence of class A drugs and always unable to focus on the issues connected with his trials. He was unable to behave in any sort of socially acceptable manner. His history was that he had been a mild mannered student reading for a degree and hoping to have a professional career. One evening he went to assist a person being robbed. He was kicked unconscious. He remained in a coma for three weeks but thereafter regained consciousness and was discharged. Thereafter he gave up his studies and began to consume large quantities of illicit drugs.

One of his siblings repeatedly pointed out to medical professionals Mr A’s extraordinary change in personality after the assault. It was assumed by the medical profession and his legal advisors that Mr A had been traumatised. He began to be arrested for petty thefts. His offending then escalated in seriousness. He had been represented by numerous solicitors and counsel and as a result of his eccentric behaviour many reports had been commissioned from Consultant Forensic Psychiatrists. They were all of the opinion he had schizophrenic tendencies, and that his illness was exacerbated by his drug misuse. At each trial he was deemed fit to plead and stand trial and spent approximately ten years within the criminal justice system.

He was frequently bullied and mocked in prison. I sought further expert advice for this client after discussion with a consultant psychiatrist. I pointed out the client’s extraordinary change had occurred after the assault he sustained. The psychiatrist stated the client should be examined for mental impairment. Therefore a consultant forensic psychiatrist specialising in mental impairment was instructed. This was a turning point for client. A brain scan demonstrated that the assault the client suffered had caused catastrophic, and irreparable brain damage. It was damage of a type rarely seen outside the setting of war when bullets have caused brain injury. The diagnosis was Organic Brain Disorder. It was not possible to reverse but it did mean that accommodation was found outside London in a home specialising in the care of brain injured. He has had no further contact with the criminal justice system.

This case demonstrates the very real difficulty of identifying mental impairment in a client. Indeed for ten years he had had an inadequate medical diagnosis, the suffering he and his family had endured was a tragedy.

A lesson to learn from this case is the absolute importance of having a completely thorough history of the client, the importance of listening to family members and in cases where a head injury has been sustained ensuring that those treating him have considered whether there has been any long term physical brain damage and what investigations have been conducted. It is also important to check with experts whether there are other tests they think should be carried out and whether they suggest referral to experts in other fields of medicine.

CASE STUDY TWO

I was instructed to represent Mr B. He was accused of the sexual touching if a young child. He presented as a mature male, appeared to be able to give instructions and denied the offence in interview. He had had contact with the criminal justice system on a couple of occasions previously for minor matters and received cautions and reprimands. There had been no hospital orders as he had never been mentally ill. There were no records to indicate any sort of mental health difficulty. He lived with a parent, his father and had never lived independently. He had friends locally and was able to socialise. It appeared as if there would be no difficulty in the trial proceeding in the normal fashion. The question of mental impairment was brought to the attention of my instructing solicitor by chance. The client’s father informed the solicitor that the client was “unable to lie”. This prompted a further enquiry from the solicitor as to why the client was “not able to lie”. The clients parent explained that the client’s brain did not appear to function in a normal fashion. He had learning problems at school but had remained in mainstream education. He had remained at home after school and never worked. The situation was that the client’s mother ( now deceased) had accidentally let his pram fall down a flight of stairs with him in it as a young baby. The client had injured his head and been taken to hospital. The parent felt the fall may have been the reason the son could not lie. The client did not believe himself to be very different from other people, just not very clever at education. This lead to the defence obtaining the medical records over thirty years old which recorded the accident. A mental impairment expert was instructed. Tests were conducted upon the client. The results were that the client had extremely severe difficulties. This lead to agreement with the Prosecution that the client was unfit to stand trial. The jury then considered whether or not the client had done the act complained of. The jury decided they could not be sure of that.

This was another example of a case where the fact of mental impairment may well have gone unnoticed were it not for the concern expressed by a family member and the solicitor’s experience and meticulous investigation of the client’s mental ability. A client may well have stood trial and been cross examined in circumstances where this should never be permitted to occur.

Both these case studies demonstrate that barristers and solicitors need guard against assuming that because a client has stood trial and been imprisoned in the past that this means the issue of mental impairment does not arise and cannot be raised.

The above cases demonstrate the need for detailed instructions, and for both solicitor and counsel to take take active steps to verify accounts of head injury accidents and to take active steps to seek medical records and where necessary instruct experts in the appropriate field of medicine.

Barristers who contributed to this article

Year of Call - 1983

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