The police ALWAYS have discretion – it's just easier not to use it
This latest unbelievable story has only served to increase my discomfort with what appears to be the new trend with the police: to take the law literally and avoid applying discretion, because that way they are ‘covered’.
Covered, yes – but at what cost to the individuals involved, who are put through hell because the police are not man enough to use their discretion and commonsense and instead apply the letter of the law so literally that justice is NOT served?
Just read this. The police have prosecuted a patient at the mental hospital for causing EUR64.40 worth of damage (where did they get the 40 cents from, I wonder?) to a wardrobe in her room and breaking a mental nurse’s spectacles.
The patient’s lawyer pointed out that somebody who is resident at a mental hospital by definition cannot be charged with wilful assault.
The prosecuting officer responded that UNLESS HE HAS A CERTIFICATE FROM THE MENTAL HOSPITAL DECLARING THE PATIENT TO BE MENTALLY UNFIT, HE WILL HAVE TO PROCEED.
Give me strength.
timesofmalta.com, this afternoon
Mount Carmel patient charged with assault
A 31-year-old Mount Carmel Hospital outpatient was today charged with damaging a wardrobe and slightly injuring a nurse when receiving treatment.
Defence lawyer Stefano Filletti told the Court that on November 30, 2009, his client had a mental fit and while nurses tried to restrain her she damaged the wardrobe to the tune of €64.40 and breaking the nurses’ glasses.
He said he could not understand how a patient recovering at Mount Carmel could be charged with voluntary damage and assaulting a nurse. During the incident his client had even threatened to take her own life and this case could lead her to lose her part time job in the civil service.
Dr Filletti said he will be holding the authorities responsible for all damages.
In response, Police Inspector Kevin Farrugia said that according to law, unless he has a certificate from Mount Carmel Hospital stating that she was mentally unfit at the time, he would have to proceed in all cases.
Dr Filletti said that his client had paid the bill for the wardrobe and the nurse for her glasses and yet there were still criminal proceedings against her.
Police Inspector Farrugia said that one should keep in mind that not every patient at Mount Carmel was in such a constant mental state that would render them unaccountable for their actions.
Dr Filletti asked the Court who was legally responsible for a patient at Mount Carmel.
This question is expected to be addressed during the next sitting.
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Even if the patient is not that mentally ill and he is still responsible, the defence will argue that the ‘crime’ took place in a hospital by a resident patient. It more than mitigates the attributable guilt.
And what is anyone going to gain from going to court? The nurse got her new glasses and the government got a new wardrobe.
Policemen should judge a situation. They are not supposed to be robots.
The glasses are always replacable but physical and psychological trauma?
I’m not sure whether outpatient means that she was/wasn’t a ‘resident’ as you say but even if she were, that in itself does not mean that at the time of committing the alleged assault (not upon admission to hospital) she had diminished responsibility – unless, of course this can be proven beyond reasonable doubt – which is quite hard to prove – so hard that the court usually appoints a board of psychiatrists to check this out.
[Daphne – Why become a psychiatric nurse if you can’t handle being attacked my mental patients?]
What do you mean by: ‘my mental patients’??
So are you saying that mental patients are expected to routinely attack psychiatric nurses? Does this mean that you think violence towards nurses is justified?
If this was the case, there would be no psychiatric nurses anywhere in the world. It’s a bit like “why become a journalist if you don’t want judges / police and the lot to persecute you for what you say?”
Seriously now, one usually becomes a psychiatric nurse to assist and care for individuals who are experiencing mental health problems – just like a journalist becomes a journalist to the investigate and report events, issues, and trends to a broad audience (public).
If a judge is not happy with what you report (irrespective whether or not it was true) they attack you (legally) – similarly, if a patient is not happy with what you say they attack you (physically).
Was the patient right in resorting violence? (responsibility or lack of – at the time of committing the alleged offence can only be established following the appropriate court procedure) Was the judge right in resorting to court process?
It is up to the court to judge in both cases.
Of course we can handle the attack, and believe me we do go through a lot and never complain when it is genuinely related to mental health conditions – usually only in cases when it is clear that there was adequate mental capacity and intent to cause harm at the time of committing an offence do such cases proceed to court.
Kafka would have been delighted with this.
So would have Machiavelli, and I guess Lowell too! In fact it would be good to know (well probably not) how he would deal with people suffering mental illness in his quest for a supreme race!
Pajjiz ta’ Jacques Réné Zammits.
Justice should be blind, but so often ends up being stupid.
My questions to this grotesque piece of court news are: does it make any difference whether the patient is “outpatient” or not?
Who reported the patient? Please, do not say that it was the hospital authorities or the nurse in question? Surely, someone must have pressed charges for the police to proceed.
What is the point of Police Inspector Farrugia saying “that one should keep in mind that not every patient at Mount Carmel was in such a constant mental state that would render them unaccountable for their actions”?
Is this some twisted form of police medical statement that the patient in question is, in fact, accountable for her actions?
Haven’t the police anything better to do?
@H.P. Baxxter
He is of Gozitan extraction and what he says must not offend the Opposition because he may need them some day. But he feels very free to attack Daphne because that makes him look good in their eyes.
Le qed nghid ghal pedanticizmu u l-kultura tal-punt u virgola u l-legalistic arguments.
“UNLESS HE HAS A CERTIFICATE FROM THE MENTAL HOSPITAL DECLARING THE PATIENT TO BE MENTALLY UNFIT, HE WILL HAVE TO PROCEED” So what is the situation with our infamous ex-Chief Justice currently doing “time” at the nuthouse? Will we ever see him doing proper time at Kordin?
I also wonder where they got the 40c from, but then certain police officers are experts at coming up with money figures to please others.
A good example is of ex inspector P.P. doing up figures like these to please ex inspector Gadget, thinking he would be (had Labour won the last election) his safety shield.
Another I’ll scratch yours and you mine.
This is waste of time and waste of money. Wasting resources by going to court for €64 is stupid.
and 40c gugu hi.
I agree that 64 is not worth the hassle, but is the nurse’s trauma – physical and psychological – what financial value would you place on that?
That locker in the picture reminds me of a metal one at the police HQ in the 80s. Inspector 007 once locked a Nationalist ‘terrorist’ in one of them and lit an electric heater next to it, to make the ‘terrorist’ confess that he was a EDDIE man.
You are very right Troy but unfortunately the police of those times were only able to investigate people by using those tactics and 007 was an expert for doing these things specially to Nationalist supporters.
Sad but true! The medical and forensic attitudes towards responsibility for criminal behaviour do not coincide and moreover the opinion of lay jurymen with neither psychiatric nor forensic training overrules both regarding fitness to stand trial. This situation is not peculiar to any Mickey Mouse island.
about time some prosecuting officers are given lectures in criminal law, possibly by the same defending lawyer who specialise in this field.
On a different note, one of the gang members accused of terrorising the streets of Gzira lately was defended in court by the Gzira mayor himself. I find that quite odd!
U hallina, veru, jew? Min jaf kemm dahku shabu.
The logic seems to stem from the fact that the police cannot proceed in cases where a complaint of the injured party is required (if they have no written complaint) – ergo, where a complaint is not required they have to proceed ex officio once criminal evidence surfaces, no ifs and buts.
Discretionary power? Who needs it? That’s no power at all, but added responsibility. Besides, the police don’t like to have to take decisions. They prefer acting according to the law (of robotics) – even when the law is an ass, making them veritable asses of the safest degree.
The bottom line is that the police do not allow discretion within their ranks because they do not trust their capacity to make sound judgments. Unlike fear, which is omnipresent, trust is a rare quality within the police force, even towards oneself.
It is true that loose discretionary powers could lead to discrimination and abuse, giving the police extraordinary powers against suspects, inviting widespread corruption. But with policies set, internal checks and balances are enough to ensure that decisions are justified.
I don’t blame the police for taking such decision as to proceed with the case. The medical staff filed a report and therefore the police had to take action. It was unethical, from the paramedical staff side, to file a report to the police for such accident. The patient had psychiatric problems not warts.
Some years ago when I was a nurse at the E & A Dept. I was nearly strangulated by a drunken foreigner, he squeezed the hell out of me. The incident was much serious, however he was not acquitted. He was drunk at a disco in Paceville and was beaten to death by the thugs called security gaaarts. I found him unconscious on a pavement. On our way to hospital he gained consciousness and thinking I was his aggressor he attacked me.
There were no police reports in my case, I was just sent home, however I think it was the right thing to do. Regretfully the police took no action against the security guards.
So the gaaarts were not prosecuted, but the victim was, even if, in a semi-conscious state, he was defending himself (or thought he was, anyway). What remedy did his conviction give you? Nothing. Punishment is more about deterence and incapacitation, than retribution and rehabilitation.
The victim was not prosecuted, Kev.
I see. I thought he was charged for attacking you.
“In response, Police Inspector Kevin Farrugia said that according to law, unless he has a certificate from Mount Carmel Hospital stating that she was mentally unfit at the time, he would have to proceed in all cases.”
Excuse ME, what did they think she was at the mental hospital for – A MIGRAINE?
You can be treated in a mental health hospital for loads of conditions, most of which would not absolve you from legal and / or criminal responsibility – unless, of course. you can prove that at the time of the assault you were suffering from a specific condition that diminishes your responsibility – here the keyword is – at the time of the incident, not at the time you were admitted to hospital or any other time.
[Daphne – The court was told at the outset that the patient is a schizophrenic who was suffering a violent episode.]
Yes, and the court is yet to establish if this ‘violent episode’ – as defined by a legal person not by a healthcare professional – was due to schizophrenia / other psychosis or just a fit of rage as could be experienced by any other person.
If the patient was an outpatient (as reported – not resident at the hospital), she would have been declared safe enough not to have to be detained in hospital for her own / others’ safety and such an assessment carried out by any competent mental health professional always takes into account a risk assessment based on the patient’s psychiatric condition and fitness to function within society for her own safety and that of others.
The magistrate should commit Police Inspector Farrugia to Mount Carmel Hospital.
How cruel of you Leonard. Give the inmates some peace.
The aim of the police is only statistics. That is why they take action on such stupid crimes, if you can call a case like this a crime.
You are all missing the point that the person in question is an out patient so is discharged from Mt Carmel Hospital and so is fit to live in the community. And being fit to live in the community makes one accountable for his/her actions.The police are right to prosecute the person in question.
You mean, like in a black and white world where everything works like clockwork and the authorities can never be wrong?
Hawn kif f’daqqa wahda kullhadd sar espert fil-psikologija? Jekk wiehed ikun qed jilghaba ta’ wiehed b’ marda mentali ghal finijiet tieghu xi jkun jixraqlu?
Jien nemmen li mhux kompitu tal-pulizija li tiddikjara jekk persuna hix marida mentali jew le. Kieku lil Lowell ilhom li gabruh, u li eks prim imhallef ilhom li baghtuh Kordin mil-Old Edwardians Club.
Daphne,
I usually admire your blog and style in general but I’m afraid I can’t see your point on this one.
While it is true that the 64.40 is not a great deal, and the alleged aggressor paid the nurse for the glasses (financial value) what value would you put on the physical and psychological trauma suffered by the nurse who was attacked?
Nurses put up with a lot, but where would you draw a line? Where does such behaviour become unacceptable? If this is accepted, are we waiting for someone to be fatally attacked before we decide where to draw the line?
Filletti said he could not understand how a patient recovering at Mount Carmel could be charged with voluntary damage and assaulting a nurse.
Since when have nurses who put in so much effort to care for their patients become punching bags? Working to earn a decent living, only to end up assaulted? Is that the way to reward such a noble profession (which is so poorly paid, by the way – compared to other professions)?
Everyone is legally responsible for their actions, unless they can prove they were ‘mentally unfit’ as defined within law – at the time of committing the crime – usually established by a ‘perizia’ – a board of court-appointed psychiatrists.
Contrary to what you say, somebody who is resident at a mental hospital is NOT – under Maltese Mental Health law -by mere definition absolved from their legal / criminal responsibility unless they had been declared ‘unfit’ and CAN be charged with wilful assault
– also please refer to precedents and cases in both Malta and other EU countries or e-mail me and I will send you links.
[Daphne – Yes, please send in the links.]
Have a look on these for the time being. I will try to find the ones I had saved – got them on a CD from when I researched the subject
The first is a UK study report and second report of proceedings but I’ll look for the others
http://news.bbc.co.uk/2/hi/7241453.stm
http://www.encyclopedia.com/doc/1P2-4120748.html
“What value would you put on the physical and psychological trauma suffered by the nurse who was attacked?”
With all due respect, if you are a nurse at Mt Carmel, that risk goes with the job. It is a very real possibility.
This is exactly like some soldiers who complain if they have to go on potentially dangerous missions.
“Everyone is legally responsible for their actions, unless they can prove they were ‘mentally unfit’ as defined within law – at the time of committing the crime – usually established by a ‘perizia’ – a board of court-appointed psychiatrists. “
I thought that being in a mental hospital the onus should be on the authorities to prove that she WAS mentally fit and not the other way round.
“Contrary to what you say, somebody who is resident at a mental hospital is NOT – under Maltese Mental Health law -by mere definition absolved from their legal / criminal responsibility unless they had been declared ‘unfit’ and CAN be charged with wilful assault ”
Yes, unfortunately Maltese law is an ass in so many ways.
Hi David,
The UK Mental Health Act 1983 is based around the same principles (or rather the Maltese Act was taken from the previous UK version). Many other EU and US Mental health Acts state similar principles.
Basically, in a nutshell, everyone is responsible for their own actions unless (it is proven) that circumstances beyond their control prevents them from exercising control – and this case is all about proving circumstances beyond her control
Hospitals (and also police for that matter) rarely proceed to this stage unless they’re pretty sure that at least the alleged aggressor had some responsibility – but ultimately the court will decide
May I point out that MOST MENTAL HEALTH PATIENTS ARE NOT VIOLENT and this mental health issues are not automatically equatable with violence – in fact very few are. Attitudes like these only serve to perpetrate the stigma that haunts these people when they are trying to rebuild their life following the problems thsy go through
Could also check out (for some more education on the subject)
http://www.liv.ac.uk/eviprg/root/the%20european%20violence%20in%20psychiatry%20research%20group/introduction/index.htm
Prova ohra li Norman ghandu ragjun.
Isma billi il pazjenta kienet gewwa Mount Carmel ma jfissirx li allura skuzata biex tkun tista tghamel li trid. Allura din tippretendu illi tista taqbad imqass jew sikkina u tniffed lil nurse li jkun qed jattendiha.
Wara kollox dan ikun fuq xogholu. Halliha li l ammont hu pjuttost baxx imma ma jfissirx li noqghodu imkissru l-ghamara ghax qed niehdu is servizz tal isptar, wara kollox dawn huma imhallsa mill fondi pubblici.
Iva, naqbel li ghandhom ihallsu ghal hsara li issir, min jaf kieku kienet vici versa u il-pazjenta soffriet xi dannu kieku xkonna nghidu u xi plejtu kien jinqala.
Forsi din tkun iktar konxja issa il-quddiem u toqghod iktar attenta waqt li tkun ghall kura, u tiftakar li pacenzja qed tiehu il-kura b`xejn ghall-inqas ma taghmilx hsara
“Allura din tippretendu illi tista taqbad imqass jew sikkina u tniffed lil nurse li jkun qed jattendiha. ”
Yes, being in a mental hospital that is a real possibility!
What do you mean by ‘real possibility’?
Only a VERY SMALL MINORITY of people with mental health problems are aggressive and an EVEN SMALLER NUMBER are physically violent. An EVEN SMALLER NUMBER still are violent as a result of (usually psychotic) symptoms (where one is experiencing certain symptoms leading to the person becoming detached from reality) where it would become comprehensible for the ‘diminished responsibility’ card to be used in these court cases – only if the above condition (in most cases lasting only a small fraction of the time one spends in hospital) can be proven beyond reasonable doubt to have coincided precisely with the time of the attack!
U MHUX KULHADD JOE U CALI HAWN!
KBIR NORMAN!!!
The point is that the police come down like a ton of bricks on a mental patient. We are not talking of a civil action here but criminal. I do sympathise with the aggrieved nurse but is the criminal action going to help cure the individual? To my mind it is a case of institutionalised bullying.
Il-Malti tih vara u kuntent!
(My intention is not to insult Gabriel Garcia Marquez.)
This surrealistic incident reminded me of one of Gabo’s short stories, “I Only Came to Use the Phone” (Solo Vine a Hablar por Teléfono), the plot of which runs (more or less) like this:
Stranded on the side of the road after her car breaks down, a woman gets picked up by a bus of sleeping women. The bus is headed for a woman’s insane asylum.
She asks to use the phone at the hospital but is directed into the line of patients and is unwilling admitted as a patient, repeatedly asking to use the phone to call her husband.
Meanwhile, her husband despairs that she has left him and after a while gives up hope of ever seeing her again. After quite some time she manages to contact her husband and he comes to visit her. When he arrives he is told of his wife’s strange obsession with the telephone.
Gabo is silent on whether she was made to pay for the call.
@ Steve
Nurses who work in a mental hospital are fully trained and qualified to deal with episodes like this. I hardly think she is traumatised because a patient had a fit and knocked her glasses off. She’s probably seen a lot worse. Any nurse applying for a job at such a hospital knows what kind of job they’re going in for and understands that patients with shaky mental health can be violent as a result of their illness.
How long have you worked at such a hospital? To be able to say what – “nurses who work in a mental hospital are fully trained and qualified to deal with”
Since you seem to know what happened so well:
Could you please clarify what sort of ‘fit’ she had?
And whether she just ‘knocked her glasses off’ or whether there was more to it”?
How well do you know her to be able to state ‘She’s probably seen a lot worse’?
“patients with shaky mental health can be violent as a result of their illness”
These are the sort of comments which perpetrate stigma and discrimination (by society) when these patients are well enough to be discharged and have to face the tough task of reconstructing their life. Contrary to what some seem to believe, violence occurs due to a variety of reasons and very rarely does it occur ‘as a result of mental ill health’, even in hospitals!
Apart from discretion one also has to consider whether it is in the public interest to pursue such a case. I’m of the opinion that the Court should find the prosecuting officer to be in contempt for wasting its time.
Hard to tell if the law is the ass or whether the police inspector is. I doubt if being an outpatient at Mt Carmel is sufficient reason to exculpate the aggressor on grounds of diminished capability. On the other hand it seems clear that a private settlement could have easily been reached.
[Daphne – We are talking about a schizophrenic having an episode. My view is: if a psychiatric nurse doesn’t want to deal with the fall-out of violent episodes, then he/she shouldn’t have become a psychiatric nurse. It’s like becoming a soldier and then suing for damages if you’re shot at.]
Wahhalulna Stevie G Tim.
Daph, neither the Times article nor yours looks at this story from the angle of the psychiatric nurse not wanting to deal with the fall out of violent episodes. You’re all talking about incomprehensible police behaviour.
Haven’t read all the comments and your replies but I must assume there’s something there for you to have come up with this remark. I agree with it but it’s got nothing to do with my point.
Incidentally, have you heard of Austin’s great idea? Having designed a new public transport system he’s now going to ask the population what their (internal) travel needs are. It’s hilarious. What if the needs don’t happen to match the new system? Start again? What’s a few more million euros, I suppose…
[Daphne – I think that short of an underground train system, everyone’s travel needs are a car.]
So does almost everyone else but that’s only because they don’t know what efficient, effective and economical public transportation is all about.
That apart, since you think everyone needs a car, does this mean that you think that the government is wasting (about €100 million of) the taxpayers’ money and a lot of time in re-inventing a (probably inefficient) public transportation system?
[Daphne – Unfortunately, we have no way of knowing until the money is spent.]
I get the impression that in order to attack the police officers involved, you are branding a person “schizophrenic having an episode”.
This is as defence lawyer put it and you uncharacteristically and unquestioningly accepted as fact.
There are very complex issues of risk, responsibility and stigma inbuilt this case, thus I suggest a more sensitive approach, so as to avoid needless harm to people with mental health problems.
[Daphne – If the patient was quite content to have her lawyer use this description in her defence, then I am more than happy to repeat it for the same purpose. Like the defence lawyer, I am shocked that a schizophrenic subject to violent episodes (and not all are) is considered responsible for her actions while being restrained by a psychiatric nurse during just such an episode and prosecuted. On the other hand, I consider prosecution to be infinitely preferable to the latterday manner of dealing with just such events: locking the patient up in a padded cell, injecting him with enough sedatives to tranquillise a carthorse, and subjecting him to electric shock therapy or a lobotomy.]
Latterday or yesteryear? The approach to the care has changed dramatically over the past years. Maybe you should run a well researched article on current mental health care in Malta as it would certainly help to change your perception and that of the public at large.
Regards,
Anthony
Ah, remember ‘One Flew Over the Cuckoo’s Nest’? Wonder if our ‘hunters’ have found that nest on our little land.
I disagree Daphne, the soldier vs nurse example is nonsensical and inappropriate – for the reasons given below:
Its not at all like becoming a soldier, who is trained (equipped) and expected to defend themselves (counterattack) and the interest of their country if attacked. No one would blame a soldier for defending themselves if attacked, they would be hailed as heros. Soldiers are pre-warned about the dangers they may face in the context of active combat
The difference is an entirely different professional ethos and code of professional ethics
Nursing, on the other hand is a caring profession and nurses, no matter what happens to them is NEVER expected to retaliate because its simply not within the ethos of the profession – in fact they could also get into trouble for defending themselves from attack sometimes!
Nowhere in the nurses’ terms and conditions of employment or job description can one find such a a warning about being assaulted. The only thing that is mentioned is the employer’s Zero Tolerance policy toward violence and it is on that basis that nurses are assigned to work at a mental hospital
Your view, in this respect is entirely wrong Daphne if it equates mental ill health with violence and if it automatically assumes this in defining the role description of a psychiatric nurse or any other mental health professional
Also Daphne, if I were you I would also be careful when saying that she was having a schizophrenic episode – I would check out my facts first.
[Daphne – That would be to accuse her defence lawyer of lying in court.]
Not necessarily – Dr. Filletti is doing what is expected of him i.e. to defend his client but it’s now up to the court to investigate and seek the opinion of a mental health professional who is qualified to establish if this was really the case. That’s exactly what the court proceedings are expected to find out and what this case rests on.
I am very alarmed at the way the police could, and did, exercise their discretionary power. When an acting Commissioner of Police committed flagrant perjury during a sitting of the Disciplinary Committee of the Public Service Commission the police used their discretionary power not to charge him with perjury.
And when I “challenged” the police to take action the office of the Attorney General opposed on the grounds that the records of the Public Commission were confidential and the political power was not going to allow their production in court. Feel free to guess when that happened.
[Daphne – Please tell us, rather than letting us guess. Conjecture is dangerous and damaging to the innocent.]
Li nurse taqla daqqa minhabba illi il-marid ikun fi stat ta’ genn qlajna kemm ghandha xaghar f’ rasna imma li naqilghu is-swat jew ikissrulna in-nuccali bi qziez le u jridu jhallsu ta l-ispejjez li jghamlu u jidhru quddiem il-gustizzja bhal kull cittadin iehor.
Very well said, Joe. Usually, when the aggression takes place within the context of a true psychotic attack the authorities don’t usually take action and it rarely proceeds to be investigated in court.
It happened during the reign of Dominic Mintoff. The acting Commissioner of Police is no longer with us and neither are the lawyers from the Attorney General’s office who supported the “discretionary” refusal by the police to proceed with a charge of perjury committed during proceedings before the PSC Disciplinary Board.
The net result was that the attempt to have me “dismissed” from the police failed but I was none the less compulsorily retired from the Police Force “on grounds of public(!) interest” where I remained for twelve years until I was reinstated because my compulsory retirement was declared to be a “miscarriage of justice”.
@Francis Saliba, I very well remember your case – shame on them all.
Daphne I find your position very hard to understand. Its like saying ‘Journalists/columnists should not take action against anyone who discloses information about their private life since as a public figure they knew what they were going into’. Yes, we psychiatric nurses understand that there is a degree of risk involved. But to understanding that risk does not make it acceptable when it occurs. We still have a right to safeguard our well being and in this democratic country we still have a right to seek legal justice.
My question to you Daphne. Do you acknowledge that persons with mental health problem are not by default absolved of their moral/social/state obligations?