We’ve discussed the issue of ‘diversion’ (whatever that means) on this blog many times. It is often conceived as being something that happens before, at or just after the point of arrest and before people enter the justice system proper by facing criminal charges. In reality, ‘diversion’ can occur at four different stages; each representing a part of the criminal justice system. This post focusses upon diversion from prison.
I want to highlight how prison transfers work in order to assist an understanding about why some people with a mental health problem are sent to prison in the first place; the role of criminal justice system as a causation of mental ill-health; and how transfers to prison work whether illness develops or is exacerbated by incarceration in gaol.
Firstly, there are four sections of the Mental Health Act I want to highlight, as well as an informal term:
- Section 47 – The transfer of convicted prisoners. People who are sentenced by a court to imprisonment after conviction may be assessed by a psychiatrist in prison if it is thought that their mental disorder is of a nature or degree that requires treatment in hospital. The prison and health services then apply to the Ministry of Justice to transfer the patient to a suitable hospital.
- Section 48 – The transfer of remand and other prisoners. Remand prisoners refers to people who have been charged with a criminal offence by the police and then remanded to (prison) custody by the courts, pending trial. The same process would occur if a transfer to hospital was being considered under s47, but this section also relates to other categories of ‘prisoner’ like those detained under immigration or extradition legislation, pending removal from the country.
- Section 49 – The restriction direction for transferred prisoners. Where it is felt that prisoners represent “a serious risk of harm to the public”, the Ministry of Justice may impose a restriction order upon the transfer. Like a restricted hospital order under s37/41, this restriction prevents the Responsible Clinician from doing the same three things: discharging the patient from care; transferring the patient to another kind of psychiatric unit or granting the patient leave from hospital – unless agreed by the MoJ.
- Section 50 – The remittance of transferred prisoners back to prison. Where a patient’s mental condition has improved sufficiently for it to be no longer necessary that they receive inpatient care, the individual may be remitted back to prison under this section. This can only occur in the case of convicted prisoners where their sentence has not yet expired. In the case of remand or other prisoners, where they have not yet stood trial but it is still intended that they do.In some instances, patients pending trial will have their cases discontinued because their transfer to hospital causes reflection upon the public interest in proceeding with a case. For example, if a serial shoplifter was on remand pending trial and then transferred under s48, it may be decided to discontinue the case if the Responsible Clinician predicts a protracted period in hospital for treatment, perhaps six months or more.
- “Notional s37″ – I also want to briefly explain what this phrase means: I have previously written a full post on it, but for here, I’ll just summarise that it refers to someone who was transferred to prison under either s47 or s48:
If a s47 patient’s sentence ran out whilst they were in hospital, subsequent to a transfer direction; they would continue to be detained “as if” they had been sentenced to a hospital order under s37 but any restriction direction under s49 would cease at the point where sentence ended.
If the grounds for a s48 patient’s remand or detention came to and end whilst they were in hospital subsequent to a transfer direction under s48, they would continue to be detained “as if” they had been admitted under a s37 hospital order. Any restriction direction under s49 would cease at the point where detention in prison would have ended.
All clear?! … I might write a blog at some stage which amounts to a test! << Only half-joking!
The Bradley Review highlighted that there are problems in bringing about such transfers in a timely manner and recommended that the Government work towards ensuring that all such transfers can occur within 14 days. It is currently much longer than that – frequently three or four times that of Bradley’s aspiration, often measured in months. To achieve the criteria for a transfer, the prisoner being assessed but be deemed by two psychiatrists to be suffering from a mental disorder, “of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment.”
Prisons as modern asylums
We know that the prevalence of mental disorder amongst the prison population is high. Depending on your choice of statistics, you can estimate as high as 80% or even 90%. Even internationally, this remains true – one often sees on Twitter the statistic that the largest provider of mental health care in the US states of New York or California are prisons – each catering for thousands of convicted prisoners with diagnosed mental health disorders.
It is appalling isn’t it? I want to put an argument that it is both appalling, inevitable and something we will have to get better at managing. For three main reasons:
- Firstly – we have an exceptionally reactive mental health system, once people have become entangled in the criminal justice system it can be appreciably harder to ensure a (proper) reaction from mental health services. If you want to see this in action, ask why some psychiatric liaison services in A&E and acute trusts will see anyone in contact with those services unless they are in contact with the police. Ask yourself why most police liaison and diversion services are not twenty-four hour a day operations … or even sixteen-eighteen hours a day.
- Secondly – the criminal justice system is a known to be a causal factor in some cases. We know that many people struggle to come to terms with the stresses of prosecution and/or imprisonment, including for example, when it wasn’t justified in the first place and where there are miscarriages of justice. For some, prosecution and prison will exacerbate pre-dispositions to mental ill-health and we know for example, that the rates of self-harm in some women’s prisons can be exceptionally high.
- Thirdly – we talk about equality of access to healthcare when making representations that those suffering from mental health problems are treated differently. For those who consent to treatment of their mental disorder, by whatever means, there could be good reasons for ensuring that this is provided in prison by in-reach teams. Not all prisoners’ physical healthcare requirements need treatment in hospital; just like not all mental health problems are “of a nature or degree that requires treatment in hospital.”
Now, none of those three remarks mean that I think we’ve got the balance correct – very far from it! We know that rates of psychosis in prisoners are very high and that potentially far more prisoners could or should be transferred to hospital. I don’t under-estimate the challenge this represents to government or the services involved given that secure mental health care can cost, per patient, four or five times as much as imprisonment. Some very crude mathematics for you: if 1 in 7 of our prison population suffers from psychosis and we assume that most of those that is well over 10,000 people who would represent an additional cost per person of over £200,000 per year for inpatient treatment. That bill does not take account of capital costs of building new psychiatric facilities that would surely be necessary if we did wish to see this catchment of offender removed from prison. This is roughly the extent to which we’ve criminalised people and a complex social problem.
But what I am suggesting, is that the prevalence of mental disorder in society, along with our social and political tendency to criminalise mental illness and those who suffer from it, as well as the pathologising impact upon our criminal justice system means it is inevitable that someone people in prison will suffer from mental disorder. Our prisons represent an exaggeration of the extremes that our population present and this includes mental ill-health. But there is plenty of work to be done to make things better.
Courtesy of the Mental Health Cop