Mental health in prison Contents

4Use of prison to accommodate mentally ill people because community care is not available

‘Place of safety’ under the Mental Health Act 1983

94.Some people who are acutely mentally ill are being sent to prison as there is nowhere else that is safe for them to be. Prisons are used as an emergency ‘place of safety’ under the Mental Health Act 1983 simply because there is no mental health bed available for them in the community.89 People can be kept in a place of safety under the Mental Health Act for up to 36 hours if there is medical advice to support it.90

95.Dr Russell Green, Medical Director, Mental Health and Substance Misuse, at Practice Plus Group,91 set out for us the difficulties faced by the courts that result in some acutely mentally ill people being sent to prison:

When someone is detained by the police and it is identified that they are mentally unwell, they get a full assessment by a psychiatrist or other appropriately qualified person. If, at that point, it is recognised that they need to be in hospital, the process, if necessary, of detaining them under the Mental Health Act should happen and they should go to hospital. What seems to happen is that it does not happen quickly enough. The clock, in a sense, is running and they find themselves before a judge or magistrate before the process of completing the Mental Health Act assessment is done or often before a bed can be found. At that point—and I have every sympathy with the court—they are left in the position of saying, “What else can we do?” Therefore, the person ends up in prison.

My experience is that everyone within that process is trying to do their best, but I suspect one of the big challenges is the availability of a bed on the local mental health ward, which means there just is not time to source a bed somewhere else.92

96.In January 2021, the Department of Health and Social Care and the Ministry of Justice made a commitment to end the use of prison as a place of safety in their white paper on reforms to the Mental Health Act.93 This commitment is, however, dependent on the establishment of viable alternatives:

It is important to prepare for any legislative change with the relevant adaptations on the ground, supported by the necessary new investment. We will consider introducing guidance for the courts and will ensure that the necessary adaptations and investment are in place before legislative changes are commenced as a final step to delivering this objective.94

97.We welcome the proposal in the Mental Health Act Reform white paper to end the use of prison as a ‘place of safety’ and the recognition that this must be supported by investment in alternatives. Problems with access to emergency mental health services (including a shortage of beds on general psychiatric wards) are at the heart of the problem.

98.The Government must, as a matter of urgency, see through its proposal to establish viable alternatives so that prisons are no longer used as a place of safety under the Mental Health Act 1983. We recommend that the Department of Health and Social Care and the Ministry of Justice set a target to eliminate use of prison in this way by 31 March 2022 and monitor progress monthly towards this target in each NHS region in the meantime.

Remands under the Bail Act 1976

99.In addition to the Mental Health Act 1983, there are provisions in the Bail Act 1976 that enable the courts to remand an adult to prison95 for their ‘own protection’ from self-harm or harm from others, or in a child’s case for their own ‘welfare’, without that person being convicted or sentenced – even in cases where the charge they face could not result in a prison sentence. There is no time limit and no requirement for a medical opinion.

100.Prisoners remanded to custody under the Bail Act 1976 may be kept in prison for a considerable time. These remands are used most often for women.96 A Centre for Mental Health’s recent review received evidence from Low Newton women’s prison that in the three years 2017–2019:

18 women had been remanded for their own protection, three of these on more than one occasion with an average stay of 88 days, ranging from one day to one year. The primary reason appears to be for self-harm.”97

101.The All Party Parliamentary Group on Women in the Penal System reported that “Using this power the courts can remove someone’s liberty without expert evidence or any formal investigation into their circumstances, and without them having legal representation”98 and “it is wrong in principle and damaging in practice for the most punitive sanction available to the state to be used to make up for failings in the community.”99 The government has not committed to amending the Bail Act 1976 although the Ministry of Justice is conducting a review into this issue that is due to report by the end of the year.100

102.NHS England provides liaison and diversion services to: identify people who have mental health, learning disability, substance misuse or other vulnerabilities when they first come into contact with the criminal justice [and] refer them for appropriate health or social care or enable them to be diverted away from the criminal justice system into a more appropriate setting, if required.101 It is clear from the problems we have set out above that these services do not always work effectively for people who are mentally ill.

103.The Courts use the provisions in the Bail Act 1976 to remand people to prison for their own protection or welfare only because proper alternatives in the community are not available. We are concerned about the lack of safeguards under this provision, the length of time men, women and children may be remanded, and the unsuitability of prison for them. The use of prisons in this way is wrong in principle.

104.The Government should bring forward legislation by 31 March 2022 to amend the Bail Act 1976 so that it is unlawful to remand anyone to custody simply for their own protection or welfare.

89 A ‘place of safety’ is defined in section 135(6) of the Mental Health Act 1983 as: “residential accommodation provided by a local social services authority; a hospital; a police station; an independent hospital or care home for mentally disordered persons; or any other suitable place the occupier of which is willing temporarily to receive the patient.” Prisons are not mentioned.

90 Mental Health Act 1983 sections 135 and 136

91 Practice Plus Group is commissioned to provide healthcare including mental health in over 50 prisons in England.

93 Reforming the Mental Health Act, webpage accessed 5 July 2021

94 ibid

95 Remands take place while a court case is proceeding.

96 All Party Parliamentary Group on Women in the Penal System, For their own protection, The Howard League for Penal Reform, 2020, p 2–3

98 All Party Parliamentary Group on Women in the Penal System, For their own protection, The Howard League for Penal Reform, 2020, p 1

99 Ibid, p 1

100 HC Deb, 5 July 2021, c666

101 NHS England, About Liaison and diversion, webpage accessed 26 July 2021

Published: 29 September 2021 Site information    Accessibility statement