How much stigmatisation can you take in one go?
Try this article: it has criminals, immigrants and mental health patients all rolled together into one problem – mental health bed blocking. All of this arises from the case of Imtiaz Ahmed, who was convicted of manslaughter on the grounds of diminished responsibility and sentenced to prison. He was subsequently transferred to hospital under the Mental Health Act and remains there because the hospital argue they cannot release him knowing he is not entitled – as an illegal foreign national convicted of an offence – to aftercare and community support.
The article is talking about a lot of law that we’ve covered together on this blog – I have this idea in my head that your journey in understanding it is associated with my efforts to research and present it. This current appeal case brings a lot of it together. But more importantly, I’m going to suggest that the doctor in this matter was wrong – after advice from Amanda Weston who has commented below.
PRISON TRANSFERS
Two quick reminders for you to recall –
- If a person is convicted of an offence and known to have a mental disorder of a nature or degree that it would be appropriate for them to be detained in hospital, the court can impose a hospital order under s37 of the Mental Health Act – discharge from s37 is at the discretion of the Responsible Clinician in charge of the patient’s care. If the person is deemed to pose a serious risk of harm to the public, the s37 order can be ‘restricted’ under s41. This ensures that the Ministry of Justice must sanction release, not the Responsible Clinician.
- If an imprisoned criminal becomes in need of hospital treatment for mental disorder whilst serving their sentence, they can be transferred under s47 of the Mental Health Act to hospital – if the prison sentence expires whilst the person is detained under s47 MHA, they continue to be detained in hospital as if they had been subject to a hospital order upon conviction.
So, if a non UK citizen is convicted of an offence and suffering from a mental disorder is either given a s37 hospital order or transferred under s47 MHA, they will occupy a bed in our secure mental health system.
Normally, when such a patient is considered fit for discharge from hospital, their mental health care will not simply be terminated: they will come under the auspices of a community based mental health team, often the community forensic team. This ensures that recovery and rehabilitation through the period of re-adjustment to semi-independent or independent living is properly supported. It also ensures for restricted patients, that if recovery and rehabilitation are not progressing well, the community mental health team can instruct the Ministry of Justice accordingly and they can, if necessary, recall the patient to hospital under s42 MHA.
So why is there a problem? – well, it was suggested during the Ahmed Appeal that non-UK citizens don’t qualify for the community support that is alluded to, known in law as “s117 aftercare”. As such, Doctors would consider themselves to be discharging patients into a vacuum of care or support. The risks around this would be significant given that the individuals concerned have been convicted of offences and / or assessed as posing a “significant risk of harm to the public”. There are also challenges around how the NHS tie up their decisions with the United Kingdom Borders Agency who are responsible for removing from the UK those who should be deported after conviction. There are additional considerations for UKBA where the person to be removed is also mentally ill – questions arise about their ability to secure treatment / care in the country to which they would be deported and whether deportation takes account of human rights considerations that we often hear about.
SO WHAT?
Where a Doctor is not convinced that releasing a ‘restricted patient’ into the community without the necessary support, they are keeping them detained to protect the public. This gives rise to the supposed “bed blocking” argument to which the Court of Appeal has said the authorities should give ‘speedy attention’. Let’s hope they do, as the occupancy of a medium secure bed is said to cost more than £200,000 per annum!
The problem is that the claims made in the article may well in fact be wrong: section 117 aftercare applies to any patient who is discharged from hospital after that have been detained there under ss3, 37, 45A, 47 or 48. This entitlement to aftercare is not contingent upon immigration status and there are various mental health trust policies available on the internet which show this reflected in practice. It is schedule 3 of the National Immigration and Asylum Act 2002 which details which public services can be withdrawn or withheld from non-UK citizens on the basis of immigration issues and s117 aftercare is not listed upon them. See also chapter 27 of the Code of Practice to the MHA which makes no mention of immigration matters.
But as the article attracted my attention for completely different reasons – it was around the potential for the piece to be full of stigmatising attitudes as soon as I read the headline “mentally ill migrant criminals” – I am even more persuaded that this was behind the piece now that I have learned that the claims within it may not even be correct. All I can conclude is that we’re appear to be detaining certain patients indefinitely despite their entitlement to statutory aftercare and without limit of time … potentially because of politics around the deportation of those patients who were detained originally for serious offences and whom UKBA would prefer to deport once issues around mental ill-health mean that they can.
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.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2013
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – www.legislation.gov.uk
Mental Health Cop 
It is completely wrong and a common misunderstanding that mentally disordered foreign offenders are not entitled to after care!! First of all – the entitlement to s 117 MHA 1983 after care which applies to those detained under s 3 MHA is not affected by schedule 3 of the Nationality Immigration & Asylum Act 2002. Secondly even if he is not entitled to after care under s 117, local authorities are only prevented from providing care subject to an obligation to avoid human rights – that means if he is only (effectively or actually) detained in hospital because as a foreign national he has been denied proper care planning and discharge to the community, that could be a breach of article 5 (deprivation of liberty), or 8 (respect for private life including physical and moral integrity) and possible discriminatory under article 14 or the EA 2010. What if the ‘bed blocker’ lacks capacity? Then there is the impact of the MCA 2005 to consider! This problem is recurring because clinical teams – by and large but not always – consider that ‘deportation’ is inevitable. It may not be lawful and practicable let likely in a reasonable period. Care planning for discharge into the community has to proceed in the normal way, and if there is any NHS funding impediment caused by a failure by SSHD to regularise the immigration status of someone who cannot be removed then that should be challenged with an effective and experienced immigration lawyer.
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Tend to think this is short sighted – it is in no one’s interest to keep someone in a secure hospital past the point at which it is no longer needed. It doesn’t help him, it doesn’t help the hospital and it surely doesn’t help the tax payer.
From experience, sending people to another country whilst on a 37/41 is usually very tricky. The law requires that a hospital be identified to receive him. But many (most?) countries do not have secure hospitals for offenders – they put them in prison, and a 37/41 patient cannot be sent to a prison. That same country will usually not take him into a non-secure hospital for obvious public safety reasons.
A simple change in the law could sort this issue out.
A simple change in the law could sort a lot of things out in this area of police business … the question is whether anyone wants to do it!
Firstly, quelle suprise that this article appeared in the Daily Right Wing Telegraph.
Secondly, in my experience most foreign nationals/ asylum seekers/ ‘illegal immigrants’ who come to the UK and commit serious offences while mentally ill (and then become subject to s. 37/41 hospital order disposals) have been through experiences in their home countries which most of us could not begin to imagine. This is not making excuses – this is reality. If you think escaping being stoned to death, tortured, imprisoned and living under threat of execution just because you disagree with the views of the dictatorship you live under is not good reason to flee to the UK in the hope of a better life, I am sorry, but in my view, you are misguided and naïve. Unfortunately, having been under such intense mental torment will more often than not take its toll and can manifest in serious mental disorder. And even more unfortunately, this can result in serious offences being committed – but in the case of a hospital order being imposed, the offence will have been committed without the requisite *mens rea* for criminal liability. However, of course, where there are innocent victims, I in no way underestimate the tragedy.
I am thankful for the clarification given here by Amanda Weston about s. 117 aftercare being a legal right of any individual having been detained under the Mental Health Act under certain sections. However, in cases such as this, the discharged patient does not have the opportunity to avail of such aftercare because, in practice, the UKBA will currently not, in most cases, instigate deportation proceedings *while a patient is receiving medical treatment in secure services*, preferring to wait until discharge is imminent as notified by the Ministry of Justice when an RC is considering discharge, or when a Mental Health Tribunal makes that decision. Things then happen quickly and s. 117 does not come into it. The Human Rights argument is a valid one – can the UK be so forthright in deporting an individual who, for example, is maintained on licensed Clozapine treatment which literally cannot be administered in the home country of the patient? Ought not the individual continue to receive that treatment under s. 117 in the UK, for the safety of him/ herself and others (in the home country, morally, *or* the UK morally and legally?) Surely the answer is yes, but the argument of protection of the UK public is a strong one, and one which articles such as that of the Telegraph in the instant case, with their stigma and sensationalism so successfully bolster.
The term ‘bed blocking’ is so inappropriate. To me, it seems to imply a) there is an element of desire for patients to take up those beds and/ or b) that there is a lack of such beds. Michael is absolutely right to make the point about the expense of medium-secure psychiatric care. But if anyone thinks a long-term medium secure hospital in the middle of Salford in which, by practice, very few patients avail of unescorted leave is some kind of holiday home, please do some research by speaking to some long-term medium secure patients. As for shortage of beds, a parallel medium secure hospital provider, also in the North West, had to completely restructure two of its hospitals last year because a whole ward was empty. Bed blocking? I think not.