Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Rethink Mental Illness (LA 106)

Who we are

Rethink Mental Illness is a charity that believes a better life is possible for millions of people affected by mental illness. For 40 years we have brought people together to support each other. We run services and support groups that change people’s lives and challenge attitudes about mental illness. We directly support almost 60,000 people every year across England to get through crises, to live independently and to realise they are not alone. We give information and advice to 500,000 more and we change policy for millions.

1. Summary

1.1. This call for evidence highlights some of the key areas of concern for Rethink Mental Illness in regard to the Legal Aid, Sentencing and Punishment of Offenders Bill. Rethink Mental Illness has varied experience of mental health and the criminal justice system. We were commissioned to set up a Service User and Carer Review Panel to assist with the work of Lord Bradley’s independent review of people with mental health problems in the criminal justice system. We have also been involved with the Health and Criminal Justice Programme Board on the Delivery Plan of Lord Bradley’s recommendations.

1.2. In addition to this, Rethink Mental Illness delivers a number of criminal justice services. We provide advice and support services in courts, work with Nottinghamshire Healthcare NHS Trust to support prisoners identified as having a mental health problems prior to release and facilitate their reintegration into the community. As the largest provider of primary care psychological therapy services in the country after the NHS, we also deliver services across five prisons in Doncaster and two in Wakefield.

1.3. Rethink Mental Illness supports the Government’s aims of a ‘rehabilitation revolution’ and the commitment to reduce reoffending. Many people affected by mental illness get caught up in a cycle of reoffending and we are encouraged by the Government’s intention to meet the needs of vulnerable offenders with mental health problems. However we are concerned that some elements of the Bill might actually prove detrimental to these aims. For example, people serving short prison sentences are two to three times more likely to reoffend if they do not have suitable housing. [1] Removing timely access to advice by reducing the scope of legal aid provision could exacerbate this problem. Equally, onerous or inappropriate conditions on cautions or treatment requirements could hamper rehabilitation.

1.4. Rethink Mental Illness therefore recommends the following points for consideration in order that barriers to rehabilitation for people affected by mental illness will not be inadvertently imposed by the Bill:

- The legal issues that people with mental health problems face are often complex and cannot be delineated easily into areas that will and will not be covered by the new legal aid provisions. Leaving people with mental health problems to reach crisis point before support is available will have a significantly detrimental affect on their health.

- We are particularly concerned about the impact of removing legal aid from complex areas of legislation, such as welfare benefits advice.

- We oppose the extension of the curfew requirement from 12 to 16 hours as it could severely hamper someone’s access to services and employment, which would be damaging to rehabilitation.

- Removing the need for a psychiatric report before issuing a mental health treatment requirement will reduce delays and remove a significant practical barrier to the treatment requirement. While we welcome this, we would stress the importance of an accurate and thorough assessment so the treatment specified is as effective and appropriate as possible. We would ask for clarification on what guidance will be given to courts on this issue.

- We welcome the promotion of the use of bail for offenders unlikely to receive a custodial sentence. Being placed on remand can cause a considerable deterioration in a person’s mental health and we are pleased that the use of remand will be limited by these proposals.

2. Legal Aid

2.1. Rethink Mental Illness welcomes the continuation of legal aid for issues around the Mental Health Act, the Mental Capacity Act and community care. This retention is vital to protect people with mental health problems who would otherwise be in an extremely vulnerable position. However, we are concerned about the removal of other areas of civil law from the scope of legal aid provision. These proposals could have a disproportionate impact on people with mental illness as they are often more likely to experience civil justice issues. The increased anxiety caused by dealing with these issues could exacerbate mental illness and people may struggle to represent themselves in any proceedings. In addition, limiting advice to crisis situations such as imminent homelessness is less effective and could potentially prove more costly in the long run.

2.2. Often people with mental health problems require legal aid for issues that are complex and can not be easily separated into different topics. While we are pleased that people in inpatient mental health settings will have access to legal aid for issues relating to mental health law, the difficulties do not end when people are discharged from hospital or compulsory treatment in the community. A lack of adequate and timely advice on discharge could have a devastating impact on people’s recovery, which could be severely impeded by the lack of available advice on issues such as debt, housing, welfare benefits and employment. These issues are all inter-connected and providing legal aid for only certain parts could exacerbate mental health problems and have unintended negative consequences.

Clause 12: Advice and assistance for individuals in custody

2.3. Rethink Mental Illness is concerned by the proposal in Clause 12 that decisions about free advice and assistance for individuals in custody will be at the determination of a Director of Legal Aid Casework. This will presumably result in a delay as decisions are made about what is to be made available. This uncertainty could cause a lot of anxiety and could be especially harmful to those who are already vulnerable, such as people with mental illness. It could lengthen someone’s time in police custody, which would not be conducive to a person’s mental health. If advice and assistance is not offered at an initial stage, it could also be detrimental to a person’s case if they are not in a position to engage with the necessary processes due to mental distress. We are concerned that this proposal could disproportionately affect the most vulnerable and have very damaging consequences.

Clause 26: Choice of provider of services etc.

2.4. Under clause 26 of the Bill, the Lord Chancellor does not have a duty to provide legal aid services by means selected by the individual. It goes on to highlight that the Lord Chancellor may, in particular, arrange for services to be provided by telephone or by other electronic means. If a telephone gateway is the only way of accessing all areas or any area of civil legal aid advice, we have serious concerns about the implications of this for people with mental health problems. In a survey carried out by Rethink Mental Illness, 90% of respondents indicated that they would prefer to get advice face-to-face rather than by telephone or online. [2] Many respondents indicated that, due to mental health problems, they would have particular difficulty with taking in information and explaining situations over the telephone. This is especially the case when complex civil justice issues are being discussed

2.5. While we know that telephone-based services are a very useful source of advice, we believe it should only be one of a range of ways. There are a number of reasons that telephone communication can be difficult for people affected by mental illness. Often people rely on face-to-face services where they can discuss their concerns with specialists they have worked with before or with whom they can start to build a trusting relationship. A face-to-face service also gives the option that someone would be able to bring an advocate or other supporter along. An advocate can be crucial in supporting and empowering people, assisting in the preparation of statements and key documents and ensuring that the adviser or specialist can understand the issues at stake. Reliance on a third party or advocate to obtain advice over the phone could lead to confusion of the facts, problems around confidentiality and also limits the affected person’s independence.

2.6. Communication can be further complicated by a person being in distress at the point of seeking advice. They might find it difficult to explain clearly the details of their legal problem and this might limit the possibility of meaningful and accurate advice being given. Communication via telephone may be particularly difficult for someone who might be hearing voices or suffering from psychosis. Schizophrenia, the most common form of psychotic disorder, affects 1in 100 people it is important that access to advice is not denied to this group. [3]

2.7. We are also concerned that the costs related to any telephone service could be a disincentive for people. This is particularly true of those on the lowest incomes, the very people for whom the legal aid system is designed.

2.8. If telephone services are used more extensively in providing legal aid advice, Rethink Mental Illness recommends it is not the only means available, that any criteria to determine the need for face-to-face advice does not further penalise people with mental health problems by virtue of their difficulties being ‘hidden’ and that it is a freephone service.

Schedule 1: Excluded services

2.9. We are particularly concerned about the removal of welfare benefit advice from the scope of legal aid provision. This is an especially complex system, further complicated by the imminent changes if the Welfare Reform Bill is passed. It is impossible to separate this advice from other areas that are being retained by the Legal Aid, Sentencing and Punishment of Offenders Bill. Timely advice on housing benefit, for example, could prevent someone being in a position of imminently losing their home and could also reduce the amount of distress and anxiety caused to the individual. This in turn could prevent the deterioration of a mental health condition, avoiding the need for crisis services or hospital admission. Trying to define discrete areas that will or will not be included under legal aid ignores the complexity of these issues and could result in incredibly vulnerable people being unable to access the support they need. This approach also stands in opposition to the more preventative measures being promoted by the Department of Health. [4]

3. Clause 60: Curfew requirement

3.1. Rethink Mental Illness is concerned about the proposal in the Bill to extend the maximum hours of curfew in any day from twelve to sixteen. This extension could severely restrict access to services, employment and could cause disruption to caring responsibilities.

3.2. Rethink Mental Illness is keen to see the effective diversion of people with mental health problems from the criminal justice system as time spent in prison can be extremely detrimental to a person’s mental health. Non-custodial sentences can offer a real opportunity for rehabilitation and also have a role in reducing recidivism. Recent Ministry of Justice figures suggest that community orders lead to a statistically significant reduction in the reoffending rate compared to short term jail sentences. [5] However these positive outcomes could be negatively impacted if the maximum curfew is extended. It will be almost impossible for anyone to enter in to, or maintain, full time employment with a maximum curfew requirement. Employment is a key element of social inclusion and wellbeing and research suggests that being in employment reduces the risk of re-offending by between a third and a half. [6] People with mental health problems already have some of the worst employment outcomes of any group and therefore making it even more difficult to get work by imposing onerous requirements could result in an already vulnerable group of people becoming increasingly socially excluded.

3.3. We are also concerned a curfew requirement of maximum length could make it difficult for people to access services and support crucial to managing their mental health condition. This support is wider than simply keeping appointments with healthcare professionals and could include peer support groups, complementary therapies or social activities, some of which might not be accessible within the available hours dictated by the requirement. In addition, if people are living on their own, long periods of enforced solitude could also have a negative effect on their mental health and lead to increased isolation.

4. Clause 62: Mental health treatment requirement

4.1. Rethink Mental Illness acknowledges that the current need for a Section 12 approved medical professional’s report before a mental health treatment requirement (MHTR) can be issued often delays or disrupts the process. MHTRs are significantly underused compared to other community orders as demonstrated by figures which show that in 2010, 743 MHTRs were commenced compared to 11,996 drug treatment requirements. [7] This constitutes less than 1% of all community orders issued last year although it is estimated that around 40% of offenders serving community sentences are thought to have mental health problems. [8]

4.2. Although not the only barrier to the use of MHTRs, the organisation of psychiatric reports is the most frequently cited. [9] Whilst Rethink Mental Illness welcomes the removal of this barrier, it is important that an adequate and accurate assessment is carried out before a MHTR is issued. The Bill as it stands does not indicate how mental health needs might be accurately identified in the absence of a psychiatric report and we would stress the importance of a thorough and accurate assessment. If this is not carried out, then any treatment detailed within the MHTR might not be the most effective or appropriate for the person to whom the order is issued. We would seek clarification as to how this is going to be handled in a court setting by someone with relevant expertise.

4.3. We would also stress that if the rationale behind the removal of the need for a psychiatric report is to increase the use of MHTRs, then other factors also need to be addressed. Rethink Mental Illness supports the Bradley Report recommendation that a service level agreement needs to be drawn up between Her Majesty’s Court Service, the Probation Service and NHS to ensure that the necessary mental health provisions are in place so that Court Orders can be delivered effectively. Mental health services may not currently be adequately resourced to provide the extra capacity that an increased use of MHTRs would require and as provision around the country is affected by budgetary constraints, this situation will only worsen.

5. Clause 73: Bail

5.1. Rethink Mental Illness welcomes the measures proposed by the Bill to reduce the use of remand in situations where a custodial sentence is unlikely. Research shows that remand prisoners have higher rates of mental illness than sentenced prisoners . [10] Remand in custody is an extremely non-therapeutic and uncertain environment that can exacerbate already high levels of mental illness. This was starkly highlighted by recent research that found that in 2008-2009, people on remand accounted for half of self-inflicted deaths, although they only comprise 16% of the prison population. [11] We therefore welcome the move to promote the use of bail.

6. Clause 107: Conditional Cautions

6.1. Rethink Mental Illness acknowledges that the appropriate use of conditional cautions can be an effective way of diverting offenders with mental health problems away from the criminal justice system. For a conditional caution to be effective for an offender with mental illness, it is imperative that their mental health is taken into account so that the conditions are not impossible or too onerous in light of their condition. Currently the police pass all the relevant information about an offender on to the Crown Prosecution Service (CPS) who then issue the caution with the necessary conditions. The new proposals will give the police power to issue conditional cautions without referring them to the CPS. In either system it is essential that the police have adequate mental health awareness training so that they can accurately identify mental health problems. This will help ensure that or recommend appropriate cautions that do not set vulnerable people up to fail.

October 2011


[1] Homeless Link (2009) Criminal justice policy briefing London: Homeless Link

[2] Rethink Mental Illness ‘ Proposals to cut legal aid’ survey , SurveyMonkey, Jan 2011; 70 respondents

[3] National Institute of Health and Clinical Excellence. Core interventions in care (update) Clinical Guidance 82, http://www.nice.org.uk. 2009.

[4] See Department of Health (2010) Healthy Lives, Healthy People White Paper: our strategy for public health in England and DH (2011) No health without mental health: a cross-government mental health outcomes strategy for people of all ages .

[5] Ministry of Justice (2011) Compendium of Reoffending Statistics and Analysis

[6] Social Exclusion Unit (2002) Reducing reoffending by ex-prisoners London: Office of the Deputy Prime Minister

[7] House of Commons (2011) Parliamentary Question , 5 Sep 2011, Hansard Column 274W, PQ 68068

[8] Enver Solomon and Arianna Silvestri (2008) Community Sentences Digest Centre for Crime and Justice Studies, King’s College London

[9] Khanom, H., Samele, C. And Rutherford, M. (2009) A missed opportunity? Community sentences and the Mental Health Treatment Requirement London: Centre for Mental Health

[10] Singleton, N., Meltzer, H. and Gatward, R. ( 1998 ) Psychiatric morbidity among prisoners in England and Wales The Stationery Office, London

[11] Prison Reform Trust (2010) Bromley Briefings Prison Factfile

Prepared 11th October 2011