From Mental Health Act to Prison

How can it be the case that someone who committed offences whilst detained in hospital under the Mental Health Act can be imprisoned? Does this not mean that ‘the system’ has failed to take account of mental disorder as a causal or coincidental factor in his sentencing? If we know that prisons are already occupied by people suffering from mental disorders, how can imprisoning people for their actions whilst they were compulsorily hospitalised under the Mental Health Act be right? Surely something has gone wrong?

Maybe … but not necessarily.

These questions are amongst the various ones arising from the case of Norman HUTCHINS who was convicted at Leeds Crown Court and yesterday sentenced to three years in prison. Mr HUTCHINS had been accused of assaulting NHS staff whilst he was detained under the Mental Health Act and of breaching his rather unique Anti-Social Behaviour Order which in effect banned him from all NHS establishments in the country – whilst not detained or taken there against his will! He was convicted of racially aggravated assault, two common assaults and three ASBO breaches and sentenced to three years.

So how can he be ‘responsible’ for his actions, if he was detained under the MHA at the time? – detention under the MHA will ‘cover’ a broad variety of patients with a myriad of different mental health disorders, all varying in nature and degree. Detention, in and of itself, does not automatically imply a lack of insight or responsibility for one’s actions. Think about the difference, for example, of a new patient to an acute admissions ward, suffering from psychosis and whose cognition is severely affected by drugs, whether prescribed, proscribed or both.

Compare and contrast that with a patient who may have been an inpatient for many months, even years: a patient who is near release from detention who has had very many periods of “s17 leave”. Imagine that leave to have occurred initially for a few hours, accompanied by staff and which has been built up over time, without adverse incident, to weekends or even weeks of unaccompanied leave arising from which the patient has grown in their recovery and been responsible for managing increasing aspects of their lives. These two hypothetical patients do not present the same considerations, do they?

Now – imagine that each of these patients punches a nurse, committing actual bodily harm:

  • Would our criminal justice response by the same to each? Highly unlikely.
  • Would such patients’ previous risk-history influence this? Very probably.
  • What does this mean will happen? Each case in its merits.

If he required inpatient treatment under the MHA, surely him now being in prison denies him this? – maybe. But that presupposes that his condition at the time of detention is the same as his condition at the time of sentencing. It is also pertinent to observe, that if an offender-patient had been detained under section 2 MHA for assessment of suspected mental disorder, it may be that conclusions were starting to be formed about the nature and degree of someone’s condition and / or how any proposed treatment should proceed. Such treatment may not be needed at all – patients sometimes are discharged from s2 MHA after psychiatrists conclude that someone is not suffering from mental disorder at all. Remember the example in an earlier blog of the young man who drank a lot of red wine after taking medication to help him stop smoking? It may be that discharge was held up by social, rather than medical issues, for example around housing. These things have been known.

Healthcare is available within our prison system. As a prison in-reach nurse once reminded me, people are sentenced to prison, not to prison plus poor health. There may well still be challenges around this and it is fair to point out that the NHS took over the commissioning of healthcare in prison precisely because of problems of equity of provision. However, prisons have in-reach mental health teams and of course the mental health professionals who work in them may make application for certain prisoners (convicted or remand) to be transferred to hospital, if someone’s condition necessitates it.

  • Not every prisoner with a physical healthcare problem is in hospital for it;
  • Not every member of our society with a mental health problem is in hospital for it;
  • And so it follows that not every prisoner with a mental health problem is in hospital for it.

Of course, I recognise the practical difficulties that exist in obtaining beds and achieving transfers and of the NHS’s surprise at the amount of unmet mental health need when they took over prison healthcare. Lord Bradley’s review (summary) set the objective of being able to achieve all such transfers within 14 days. Practitioners often cite the timescales as being counted in weeks or months but then that is a “resources” issue, not a legal one. It may also be a political or social issue for many of us. I also fully recognise the potential of prison to exacerbate or cause mental health problems. This is, obviously, why sentencing decisions are important and taken by judges only after the fullest consideration of the overall context and the relevant issues.

THE CHALLENGE OF “PATIENT-OFFENDERS”

Offenders like Norman HUTCHINS would present a significant challenge to any country’s mental health and criminal justice interface. Professor Jill PEAY described the work of professionals at this interface as being amongst the most difficult that either will undertake – see her book, “Mental Health and Crime” (2010).

Mr HUTCHINS was legally represented by Counsel throughout his trial and he refused to participate in it, choosing to remain in the Court’s cells throughout. The law presumes he has the capacity to make such decisions as well as his current refusal of healthcare in prison, unless formal assessment suggests otherwise. The court had powers to consider whether he was unfit to plead or stand trial and they had the power to impose a hospital order upon him as the appropriate sentence, if they thought this were justified by the medical view of his condition. And yet despite all of this, they did not do so.

Notwithstanding any argument about miscarriages of justice, we must consider that this conclusion was a reasoned position after due process, rather than an aberration. This remains the case even if you don’t agree with the outcome or think the law should be amended.

Update on 01st April 2015 – since writing this article, a new Code of Practice has come into effect in England.  It doesn’t substantially alter the post but certain reference numbers have changed.  My summary post about the new Code of Practice (2015) is here, the new Reference Guide is here and the full document is here.  The Code of Practice (Wales) remains unchanged.

______________________________________________________________________
The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

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9 thoughts on “From Mental Health Act to Prison

  1. It depends how wide the net of mental is cast if it includes certain types of personality disorder and substance misuse prisons should be called hospitals. In reality a signifcant proportion of people on acute wards are don’t need the service at one end waiting housing or benefits etc and at the other end are violent characters with poor impulse control don’t like the word no ie no you can’t drink use drugs have sex on the ward that imho is what makes acute wards so volatile educated guess is that a lot of hard work went into stopping this man getting jailed
    Mick

    1. Mick,

      there is a medicalisation argument that all social deviance, i.e. all crime, is a mental health issue, and so should principally be dealt with as such. Of the four classical justifications for punishment – deterrent, rehabilitation, protection and desert[1] – this focusses on rehabilitation, with a certain amount of public protection. So if you accept this, then basically a prison should indeed be a hospital with ‘bars on the windows’ to i) enforce the rehabilitation – which we now call treatment – and ii) protect the wider public whilst the treatment is going on. Of course the staff are not protected, and it is salutary to note the above mentioned assaults by Hutchins were on NHS staff.

      Having said that, of course, current UK penal policy is far more complicated. Deterrence and just-deserts are two very populist reasons for punishing [2], and so we punish people for far more than rehabilitation purposes. In the widely-accepted MH context this becomes even more challenging, as explained in the blog, for now the need for ‘treatment’ is clear, alongside all the other motivations.

      Whilst cases such as Hutchins are very difficult to manage, by being difficult they force us to critically examine our ideas, and see if they are wanting or, in fact, stand up to scrutiny.

      [1] That a criminal morally deserves punishment – gets their ‘just deserts’.
      [2] The evidence on effectiveness, alas, is not as clear-cut.

  2. Thank you for this thought-provoking post. The interface between mental health and the criminal justice system is already opaque but this becomes even more complicated when neurological disorders are present. Working in the voluntary sector with young people with complex neuro-psychiatric disorders on some simple awareness/preventative activity has been challenging – from sourcing funding from Government departments (education? justice? community safety? disability? mental health?) to identifying realistic scenarios for both parents and young people around risks and consequences. There is a need for neurological charities to do more joint work with the police and other partners in the criminal justice system and mental health services at a number of levels – from preventative work with young people to supporting people being released from prison.

  3. What about assaults on patients – Alex has stated staff are not protected – well on an acute ward where the atmosphere can be like a war zone there are vulnerable patients and my daughter’s face was covered in bruises – there was no proper explanation and I am still waiting. I have never experienced such bullying as I encountered at the Bethlem Royal Hospital and right now in the way the family have been treated over Xmas. People like Hutchins lose all respect for themselves and society by the way they are treated and not listened to and the only cure is drugs. They play on capacity too these professionals and say “they know what they are doing” when it suits them. They never admit to failure and try and cover up serious incidents on the wards. I heard many patients beg to go to prison. The whole system is wrong and by the way I have come across some terrible nurses under the NHS and watched the way patients are ignored. Of course adverse behaviour can occur when the psychiatrist meddles with the drugs and takes someone off too steeply or mixes with another drug. Then on goes the section – it is terrible what is going on and some people have ended up being prisoner for years on end under the mental health care system. Noone stops to think how awful it must be on these drugs as I have listened to my daughter state she felt like crawling out of her skin – begging for help yet noone listened. Patients like my daughter already have a life sentence and the drugs will result in early death. A patient needs peace and quiet not a volatile environment of an acute ward. The whole care system needs changing.

  4. This is a subject very close to my heart. I have an ASBO as a result of compulsive behaviours which I believe are a symptom of my personality disorder. One of the clauses of my ASBO is extremely similar to the condition you referred to as being “rather unique”. I am also not allowed to cause harrassment, alarm or distress to the emergency services. A couple of years ago I was arrested for walking down the middle of a busy road at night time in a distressed state. Apparently a passing police car had to swerve to miss me and thus I caused the occupants of the vehicle alarm and distress, I have no memory of seeing the police car! (I was initially arrested for drunk and disorderly, this was then amended to breach of ASBO and causing a danger to motorists – there was no mention of section 136 MHA despite my obvious mental distress.) Initially the court refused me bail and remanded me in prison for my own safety because of my dangerous behaviour. I was assessed by a psychiatrist who deemed me fit to charge and culpable for my behaviour and because I was already complying with the mental health team I wasn’t eligible for a mental health treatment order or sectioning. Whilst in prison I was under the in-reach mental health care although this merely consisted of reports tracking my behaviour at all times in prison. I received no counselling or structured therapy. I was assessed with regards to trying medication but none was suitable. Obviously I had no contact with my psychotherapist whom I had been seeing for nearly 2 years in the community. I was put on the main introductory wing but was deliberately placed amongst other prisoners with mental health issues (self harmers). This was presumably as we were all on hourly watch etc. I am a lifetime self harmer so it was inevitable that with everyone around me persistently harming themselves that I would succumb and rely on old behaviours. I lasted 6 weeks before I caused myself some more severe harm. It was put to the court that being in prison was more harmful to me than being on bail (despite the very real risk of me re-offending due to the fact my offending is a result of my mental health and therefore I wasn’t able to control my own behaviour) and that my mental health was rapidly deteriorating whilst in prison. They finally granted me bail a few days later. I was eventually given an absolute discharge in court for the offence as the judge agreed that I had “served my time” with my time spent on remand.
    It appeared to me on talking to the other inmates that approximately 20% of the people I met were in prison purely because of their mental health issues as opposed to being criminally minded. I am not including in this figure those who were in for drug offences (whom in my opinion succumb to those habits due to mental health issues!) This certainly makes you wonder if there could be more use made of alternative options such as secure mental health establishments. I have since been assessed with a view to forensic psychiatric intervention but was told that I could only receive that if I was in a secure mental institution and my behaviours aren’t severe enough to receive that treatment.
    The prison officers are under an enormous strain having to deal with mentally ill people without proper training (in the same way the police have to, only for longer periods of time!) In a female prison, self-harming was deemed a normal and acceptable behaviour. On one occasion I was sat cutting my wrist whilst having a conversation with a prison officer, the officer did nothing other than to ask why I was doing it (I told her it was for attention) and to ask if I wanted it bandaged. I said no, and they allowed me to continue cutting! I saw several women self-harm for the first time in their lives whilst inside, simply because it was “the thing you did” to express your feelings!
    I feel that the level of support in the community for mental health patients is woefully inadequate and the knock on effect is that the police and prisons are being over-stretched to the limit to do a job that they are not qualified to do. I believe my health trust actually rates quite well for their mental health provisions and has won awards so it must be even worse in other parts of the country. This is totally unacceptable and a really desperate situation that is unlikely to be remedied anytime soon if reading the ‘blogs’ is anything to go by. 😦
    Sorry this is such a long response but I’m aware that some very high up people are following your blog and I have a feeling that policies and action will happen as a result of some of the issues you raise, therefore I feel this is an important forum to have my side of the story listened to. I don’t know any other way to get my voice heard.

  5. I couldn’t care less about the ins and outs of the debate above.

    But I do care about Norman Hutchins.

    As one who knows him, I can confirm in addition to his hugely exaggerated problems, he is also a very kind, mild mannered, polite and surprisingly articulate/intelligent man.

    It’s a disgrace that a man of his fragility has been let down by so many who work in the social, medical and legal professions, and that his situation has unnecessarily deteriorated to such a depressing degree.

    My thoughts are with this poor man.

    1. And nothing I have written suggests you should think otherwise or that I do – it merely uses his case as a vehicle to explain the processes to which people are subject when the criminal justice system and the mental health system collide. You’ll notice that the final sentence leaves room for the possibility that I may agree with you – but the purpose of the blog is not to re-judge those who have already been through the courts, but to explain how the process works (or doesn’t), so that people understand it as it is. Doesn’t mean we should think about what “the system” could be, if developed.

  6. This is a complicated situation which I am wary of not really knowing all the facts but for the sake of other people reading can I just check that someone cannot be detained twice i.e. meaning he was not under a MHA section at the time of sentencing?
    Also nurses and other health and social care workers do not come into this profession to be attacked no matter how poorly people are who need their help. That said most health and social care professionals are very aware of risk management and trying to keep everyone safe all of the time which can be is a very difficult and thankless task that often conflicts with their professional knowledge and responsibilities. It does not take a lot of nous to work out that trying to treat a man who is attacking you would test the patience of a saint and unless there is evidence of neurological brain damage mental illness is no excuse for bad behaviour. if we are to treat mental illness like any other illness then the same rules must apply to all?

  7. Surely it cannot be legal to ban someone from all NHS establishments in the country? What about his GP? What if he had to go to casualty? How can he be on medication after discharge?

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