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
– won 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
– 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.