Blurring the boundaries: the convergence of mental health and criminal justice

Blurring the Boundaries: The convergence of mental health and criminal justice policy, legislation, systems and practice Max Rutherford, Prisons and Criminal Justice Programme

Policy development: 1990-2009
1990 – Home Office Circular 66/90
1994 – Completion of the Reed Reports
1996 – HMIP ‘Patient or Prisoner?’
1999 – HMPS/NHS ‘The future organisation of prison health care’
1999 – DH ‘National Service Framework for Mental Health
2001 – DH/HMPS ‘Changing the Outlook: A Strategy for Developing and Modernising Mental Health Services in Prisons’
2005 – DH/NIMHE ‘Offender Mental Health Care Pathway’
2007 – ‘Improving Health, Supporting Justice’
2007 – ‘The Corston Report’
2007 – HMIP ‘Mental health of prisoners thematic’
2009 – ‘The Bradley Report: A review of diversion of offenders with mental health problems and learning disabilities away from prison’
2009 – DH/MoJ ‘Delivery Plan’ (expected November 2009)

Convergence project
i. Analysis of legislation and policy
ii. Written submissions from experts
Government departments
Clinicians
Academics
Professionals
Non-statutory organisations
iii. Expert event – conclusions and recommendations

Convergence project (2)
Analysis of legislation and policy:
Criminal Justice Mental Health teams
Mental health courts
Mental Health Treatment Requirement
IPP sentences
DSPD Programme
Hospital and Limitation Direction

1. CJMH teams
Diversion schemes have developed since 1990s
150 by 2000s
Limitations of current arrangements:
No central strategy
Patchy coverage
Piecemeal impact
Modest
Not influential or assertive

CJMH teams (2)
Bradley specifications:
Core minimum standards for each team
National network
Reporting structure
National minimum dataset
Performance monitoring
Local development plans
Key personnel
Mandated in the NHS operating framework

CJMH teams (3)
Potential benefits:
Cost and efficiency savings within the criminal justice system;
Reductions in re-offending;
Improvements in mental health
£20,000 savings per diversion
£8,000 to CJS
£16,000 from reducing reoffending

2. Mental health courts (1)
Benefits:
Early identification
Increased efficiency
Specialism
MH options for sentencing
Review function
“ On the face of it this seems a way of successfully dealing with offenders with mental health problems” (Bradley 2009, p. 78)
Concerns:
Limited places
Complexity needs
Not integrated
Time-limited funding
Redundant function?
“ I would also question the value of such courts if the role of liaison and diversion services is to be developed as recommended” (Bradley 2009, p. 78)

Mental health courts (2)
Two mental health court pilots
Brighton
Stratford
One year funding
350 offenders per year

3. Mental Health Treatment Requirements
Implemented in 2005 (CJA 2003)
One of twelve
Less than 1% of all requirements
918 issued in 2008
A missed opportunity’ due to:
Lack of knowledge and understanding
Lack of unified purpose
Unclear criteria
Poor identification
Unclear breach process
Poor inter-agency communication

Mental Health Treatment Requirements (2)
Potential benefits:
Flexible sentencing provision
Diversion option
Robust supervision
Engagement with services
Reduce reoffending
Cost-benefit
Bradley 2009, p. 96:
“ Further research into the use of MHTRs”
“ Development of clear guidance regarding the use of MHTRs”
“ SLA to ensure that MHTRs can be provided to offenders when requested by courts”

4. Imprisonment for Public Protection
Introduced in April 2005 (CJA 2003)
5,800 IPP prisoners by December 2009
140 new IPP sentences each month
2,130 are beyond tariff
94 released
Amended in summer 2008; abolition attempt in House of Lords

Imprisonment for Public Protection (2)
General problems:
Volume
Lack of information
Shortage of courses
Volatile tensions
“ A study should be commissioned to consider the relationship between imprisonment for public protection sentences and mental health or learning disability issues"
Bradley 2009, p. 100
Mental health impact:
Diagnosing dangerousness
Indeterminacy
Impact on families
Avoidance of mental health services
Exclusion from courses

Imprisonment for Public Protection (3)
OASys data (2,204 IPP prisoners, 3,368 Life prisoners and 54,785 general prison population)
55% ‘emotional wellbeing’
18% have received psychiatric treatment in the past
10% continue to receive psychiatric treatment in prison
21% receiving medication for a mental health problem
6% classified as ‘currently or ever been a patient in special hospital or regional secure unit’
37% have a history of self-harm or suicidal behaviour
106 transferred to High/Medium secure forensic hospitals
8 suicides

5. DSPD Programme
Pilot project since 2001 – MoJ/NOMS/DH/NHS
300 high secure places for men
75 medium secure and community places with community teams
12 bed service for women
Research and Development programme

DSPD Programme (2)
Two high-security prisons
HMP Whitemoor and HMP Frankland
Two high-security hospitals
Broadmoor and Rampton
12-bed ‘Primrose’ unit for women
HMP/YOI Low Newton
Treats an average of 234 people each year (2008-9)
Average length of stay varies considerably between units
1.6 to 4.2 years ( HC Hansard , 15 Jun 2009 : Column 66W)

DSPD Programme (3)
One of the longest running and most expensive pilots in UK history
In its ninth year
Treated around 450 people
DSPD has cost £488 million since 2001
Capital expenditure
£128m (2001-3)
Annual spending since:
£40 million pa 2003-4 to 2005-6
£60 million pa 2006-07 onwards

DSPD Programme (4)
Not in statute
Several attempts since 2000
In June 2009, the government stated that:
“ There are no plans to change the statutory basis of the Dangerous and Severe Personality Disorder programme” ( HC Hansard , 15 Jun 2009 : Column 65W)

DSPD Programme (5)
DSPD intended to address:
“ The challenge to public safety presented by the minority of people with severe personality disorder, who because of their disorder pose a risk of serious offending”
For persons who:
Are more likely than not to commit an offence that might be expected to lead to serious physical or psychological harm from which the victim would find it difficult or impossible to recover; and
Have a severe disorder of personality; and
There is a link between their disorder and the risk of offending

DSPD Programme (6)
Reaction in 1999-2000:
War of words between psychiatrists and Home Secretary
Opposition from parliamentarians (debates; Health Select Committee)
Widespread lobbyist, academic and clinical opposition

DSPD Programme (7)
Main concerns of critics:
Ethical
Non-medical
Limitations of risk-based interventions
Some research findings:
DSPD requires the detention of six people to prevent one crime
DSPD started badly, but may have a use
DSPD needs to be cost-effective

DSPD Programme (8)
“ An evaluation of the DSPD programme to ensure it is able to address the level of need” (Bradley 2009, p. 109)
The government accepted this:
“ A Personality Disorder strategy will be developed by February 2010 that will address this recommendation” (Ministry of Justice, 30 April 2009)
One alternative approach:
Decommission and reinvest in a comprehensive tiered prison-based PD service
£60 million per year would have a substantial impact on the current level of need in mainstream prisons (up to 70% of prisoners have a diagnosable PD)

6. Hospital and Limitation Direction
Section 45a of the Mental Health Act (‘Hybrid Order’)
Issued at the point of sentencing by a judge
Transfer to secure hospital for indeterminate length
AND a prison sentence (potentially of indeterminate length)
For what psychiatric conditions?
Any mental disorder (since November 2008)
No need for psychiatrists’ recommendation, just the diagnosis

Hospital and Limitation Direction (2)
Origins:
DH/HO (1985): ‘psychopathic disorder’
Reed Report (1994): ‘psychopathic disorder’
Conservative (White Paper 1996, pictured): all mental disorders
Labour ‘Crime (Sentences) Act 1997: ‘psychopathic disorder’
Rarely used since 1999
34 uses
16 patients detained in forensic mental health services under a HLD (31 st December 2007)

Mental Health Act 2007
All mental disorders
Implemented November 2008
Proposed benefits:
Flexibility in sentencing
Clinical treatment and aftercare
Societal justice
Public protection

Potential risks:
Clinicians as agents of the state
Pressure on sentencers
Fundamentally un-therapeutic
Doctor as gaoler
Discontinuity of care
‘ Avalanche effect’ *
Punitiveness
‘ Double indeterminacy’
Alternative defences
Resources pressure (NHS, CJS)
‘ Reverse diversion’
*Eastman, N (1996), Hybrid Orders: An analysis of their likely effects on sentencing practice and on forensic psychiatric practice and services’, Journal of Forensic Psychiatry , Vol. 7, No 3. 481-494, p. 481

Convergence: Our initial conclusions
Convergence describes a complex interaction and overlap between mental health and criminal justice
Instances of convergence have been limited but increasing over the last 10 years
Convergence looks likely to increase in the short and medium term
‘ Hybrid sentencing’ could become more common for offenders with mental health problems
There are potential benefits and concerns
Cost may determine future developments

www.scmh.org.uk
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Blurring the boundaries: the convergence of mental health and criminal justice

by Centre for Mental Health on Mar 09, 2011

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