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.
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.
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.
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