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Over the past six months the British media—general and medical—have increasingly focused on two apparently unlinked issues relating to offenders and the criminal justice system. The first issue is the current overcrowding crisis in prisons, as the number of prisoners exceeds capacity (80000 in England and Wales). The second is the new Mental Health Bill and the debate surrounding it as it passes through parliament. In terms of criminal justice this debate has largely centred on the balance to be struck between the human rights of mentally disordered offenders and protection of the public. What is striking is the focus on patients with potentially untreatable disorders (such as personality disorders) rather than any debate concerning—or even with reference to—the human rights of those with treatable disorders, such as people with acute psychosis.
Each year in England between 5% and 8% of all patients (or 1300 to 2000 patients) detained under section in psychiatric hospitals come through the court or prison systems. Unlike their counterparts in the community these patients will wait several months for a hospital bed Â and are invariably floridly psychotic and untreated. Why untreated? Apart from those sections relating to transfer, the Mental Health Act of 1983 does not apply in prison.
Among the countries of Western Europe, England and Wales currently have the highest rate of incarceration per 100000 people, although those countries are not alone in having a significant over-representation of people with a psychiatric disorder in the criminal justice system—variously estimated at between 60% and 90%. This problem is common to many countries, including most of Europe and the United States, as is the inability to ensure the rapid transfer of patients with acute mental illness out of prison and into hospital.
Prison healthcare policy in Europe, including the United Kingdom, is underpinned by the concept of equivalence of care with that of patients in the community. Equivalence of care should mean that those patients in prison who need to be admitted to hospital under the Mental Health Act wait no longer than those patients who are sectioned in the community. Equivalence of care—along with the right to health (article 12 of the United Nations' International Covenant on Economic, Social and Cultural Rights) and the right not to be subject to torture or to inhuman or degrading treatment or punishment (article 3 of the European Convention of Human Rights, enshrined in UK law as the Human Rights Act 1998)—should form the basis of health care provided to mentally ill prisoners. The reality is somewhat different.
So why are we failing? The issues relate not only to culture and resources but also to the failure of the Mental Health Act and of health commissioners to provide adequately for these patients. Well known factors contributing to this failure include the lack of diversion of mentally disordered prisoners by the courts and the police; poor care in the community; and the pressure on beds in acute psychiatric intensive care units and in medium secure units. Less recognised factors are the lack of “stepdown facilities” and of appropriate pathways of aftercare, with the consequent bed blocking in medium secure units. Emphasising the role of the patient's commissioning primary care trust in ensuring timely transfer, without placing any statutory obligation on trusts, is unlikely to produce a satisfactory outcome in a time of NHS financial crisis.
The review of the Prison Mental Health Transfers Programme is due to present its findings later this year. Will it recommend major change to the whole process of transfer of prisoners under section—change that is backed by law and resources—rather than merely altering procedures?
We propose that the new Mental Health Bill be amended to incorporate a time limit for transfer to hospital from prison in the appropriate sections of the bill (sections 47 and 48). This time limit should reflect what would be considered appropriate in community psychiatric settings, thus fulfilling the concept of equivalence of care as well as basic human rights.
We also suggest that the bill should contain statutory obligations to ensure that those patients who are judged as needing hospital treatment while in police custody or in the court system cannot be sent to prison.
Of course, much wider debates may be had regarding the interplay between the criminal justice system and mental illness. The paradox of a prison population with a high number of prisoners awaiting hospital beds at a time of much demand for greater prison capacity is best exemplified by Ashworth, a closed psychiatric hospital wing that has now reopened as a prison (HM Prison Kennet). What is unarguable, however, is that acutely psychotic patients should not be in prison. Surely in the 21st century it is time for us as health professionals to act on behalf of one of the most forgotten, disempowered, and disadvantaged groups of patients?
What is unarguable is that acutely psychotic patients should not be in prison