Joint Committee On Human Rights Third Report

7 Mental healthcare

Mental health and prisons: the Government's approach

196. Three main elements of the Government's general approach to the issue of mental health in prisons were set out by Mr Ladyman. These elements are—

197. In addition, the Minister told us that the Department of Health was working to ensure that the best use was made of capacity in high secure mental health facilities, so that those beds were available to those who genuinely needed that level of security and supervision. We urge the Government to ensure that it continues to make major inroads in diverting mentally ill offenders from the courts and prisons, and efficiently transferring the seriously mentally ill from prison to hospital.

Provision of mental healthcare in prisons

198. The basic principle underpinning the Department of Health's prison mental health strategy is that services should be provided, as far as possible, in the same way as they are in the wider community. According to the Department of Health's evidence to us, this means that prisoners, who, were they not in prison, would be treated in their own homes under the care of Community Mental Health Teams should be treated on the wings, their prison "home". Those needing more specialist care should be able to receive it in the Prison Health Care Centre, and there should be quick and effective mechanisms to transfer those prisoners requiring specialist in-patient treatment to hospital. The principle of equal treatment is the fundamental underlying notion of human rights. That equality of treatment should be upheld in relation to mental healthcare as well as in relation to physical healthcare is, therefore, not only an unsurprising, but a necessary component of compliance with the positive obligation to protect Convention rights under Articles 8, 3 and 2 ECHR.

199. Over 60 prisons are now benefiting from the provision of additional resources to deal with mental health issues by providing "prison in-reach" by NHS staff. Thus, staff normally employed in the NHS, including doctors, nurses, psychologists and others, are currently working in increasing numbers in prisons, to fulfil a range of functions, including direct treatment services and training. While the in-reach initiative is to be commended for dealing with a very substantial problem and for helping to open up the closed world of the prison, there is a danger that it will become acceptable for mentally ill people to receive care and treatment in prison that they should really be receiving in NHS facilities. We comment below on arrangements for transfer of mentally ill prisoners to hospitals, but we record here our view that mental health prison in-reach should not be used as a substitute for care and treatment in NHS facilities.

200. We were concerned to hear about some of the problems that prisons were facing in managing disruptive prisoners with personality disorders, many of whom are likely to be highly vulnerable as well as problematic to other prisoners and staff.

201. The management of these prisoners was raised as a concern by the Chief Inspector of Prisons, and she highlighted in particular what is described as "sale or return", whereby problematic prisoners are transferred from prison to prison if they continue to misbehave.[189] While we understand the Prison Service's perspective that this approach can be effective in finding an environment in which someone can settle, we have concerns about this policy in the light of the fact that a quarter of all prisoners who take their own life do so within the first week of reception into a new prison. We recommend that the Prison Service examines ways of restricting the transfer of disruptive prisoners, many of whom are also deeply vulnerable.

202. Just as prisons transfer prisoners to another prison if they are disruptive, so it appears that—understandably—such prisoners are also transferred within prisons. During our visit to Feltham YOI we saw a fight break out involving a young offender who had been held with vulnerable prisoners, despite having a track record of being problematic. However, as he had been moved all around the prison and had not settled, he was placed in a unit where it had been felt staff could observe him closely. Prisoners known to be problematic and aggressive towards other prisoners should not be placed on vulnerable prisoner units.

Transfers of mentally-ill people from prisons

203. It is the stated policy of the Government to transfer prisoners who need in-patient treatment for their mental disorders to hospitals as soon as possible. The number of prisoners transferred to hospital as restricted patients under sections 47 and 48 of the Mental Health Act rose from 180 in 1987 to 785 in 1994 and then remained relatively stable, at an average of 745 each year, up to 1999. In 2001, 635 prisoners were transferred to hospital and in 2002, the latest year for which statistics have been published, 639.[190]

204. The Chief Inspector of Prisons told us that such transfers were "undoubtedly getting easier and better", and that transfers could usually happen within three months of diagnosis. However, she expressed concern that even in this period of time a prisoner with such acute needs can deteriorate "quite dramatically".[191] At the same time, MIND was concerned about the fact that the number of transfers from prisons to hospital had actually reduced in recent years.[192]

205. In our visits to both prisons and secure hospitals, it was confirmed to us that the waiting times for transfers were improving. We were told, however, that on occasion there was under-diagnosis, or belated diagnosis, of serious mental illness in prison, on the understanding that such a diagnosis would be futile until places in secure hospitals became available.

206. At any one time there are around 40 prisoners who will have been waiting longer than three months for a hospital place following acceptance by the NHS. Mr Ladyman acknowledged that "problems of apparently excessive delays can still occur in some individual cases" and that "some prisoners still have to wait some time before they can be transferred to hospital", but told us that he believed "the arrangements for assessment and transfer worked smoothly and that very many mentally disordered prisoners can be transferred to hospital quickly".[193] He also assured us that tighter monitoring had been introduced along with a protocol setting out the actions required of both the Prison Service and the NHS when a prisoner reaches the three-month deadline. We welcome ongoing efforts to speed up arrangements for the transfer of mentally ill people from prisons to hospitals. Prison, despite improved psychiatric provision, is not an appropriate place for people with serious mental health problems and transferring these vulnerable people to NHS settings must be given high priority.

The need for more provision in NHS mental health settings

207. With over 600 prisoners awaiting transfer to NHS in-patient care, and many more prisoners with mental health problems who have not been assessed as needing a transfer but who could arguably benefit from being cared for in a therapeutic environment, there appears to be a clear need for more places to be available in NHS forensic facilities—in the high secure facilities, medium secure units and local psychiatric intensive care units.

208. The shortage of secure NHS psychiatric beds is, in our view, the central reason why there is such a problem concerning the number of mentally-ill people who are inappropriately placed. We are also concerned about those vulnerable prisoners who are assessed as having personality disorders, rather than being mentally ill, and who therefore do not meet the criteria for detention and treatment in an NHS psychiatric setting.

209. This was a particular concern of the Chief Inspector of Prisons, who raised the issue of the many very seriously mentally-ill prisoners who cannot be sectioned because, having personality disorders, they are not considered to be treatable. As a result they remain in prison. Ms Owers also told us about people who had been transferred to a psychiatric hospital but were then returned to prison because they were considered too dangerous. In response to this issue, and the high numbers of prisoners with mental health problems who did not meet the criteria for such a transfer, she has proposed the establishment of new psychiatric units which could provide appropriate care to mentally-ill people currently held in prison.[194]

210. The Department of Health told us that this was not an approach favoured by the Government as it felt that considerable progress was being made with regard to mental health provision in prisons. The Government was also concerned that such a proposal could lead to the re-creation of the kind of institutional system that existed in the old asylums. These concerns were also echoed by MIND, which felt that an additional parallel system to prisons for the mentally-ill was not needed.[195] We share Ms Owers' concerns and believe that an informed and detailed debate on the issue is urgently required in order to reach an early conclusion on what is to be done. In the meantime, we are in no doubt that too many vulnerable people with mental health problems are wrongly being held in prisons. Funding decisions for NHS high and medium secure hospitals must invariably take into account the imperative to address this.

211. If the Dangerous and Severe Personality Disorder Initiative jointly run by the Department of Health and Home Office is shown to be successful, consideration should be given to extending this as an alternative to prison for offenders with severe personality disorders.

Police cells as "places of safety"

212. Under section 136 of the Mental Health Act 1983 (MHA), someone found to be suffering from a mental disorder and to be in immediate need of care and control may be removed by the police to a "place of safety" if this is necessary in the interests of that person or for the protection of others. The place of safety may be either a police station or a hospital, and there is no legal obligation on NHS trusts to accommodate persons detained under section 136. The MHA Code of Practice of 1983 states however that "as a general rule, it is preferable for a person thought to be suffering from a mental disorder to be detained in a hospital rather than a police station".[196]

213. The Police Complaints Authority confirmed to us that, although the level of suicides in police cells was generally low, there was a real concern about suicide in regard to place of safety detentions in police cells. In the PCA study on alcohol-related deaths in police custody, three out of the 60 deaths studied were of persons detained under the Mental Health Act.[197]

214. Witnesses generally agreed that the use of police cells as places of safety was undesirable.[198] The extent to which it may compromise the safety of patients is clear from the Coroner's Rule 43 report into the death of Roger Sylvester,[199] which acknowledges that, in practical terms, the restraint imposed by a police officer on a s.136 detainee may need to differ from that imposed by medical staff—

    Situations faced by police officers in a section 136 situation are different to those faced by healthcare professionals. … Usually, officers have no prior knowledge of the person's psychiatric or medical history or the same clinical skills for determining competence and cognitive ability, which may be fluctuating in any event. There is therefore a gulf between what can be implemented in the healthcare setting and what can be implemented by police officers between responding to the presentation of a patient and transferring them into health care.[200]

215. Mr Sylvester's death, under restraint by police officers whilst arrested under s.136, which resulted in an unlawful killing verdict in the Coroner's Court later quashed on appeal, illustrates the dangers of the use of police cells for these purposes.

216. The Home Office acknowledged that use of police cells as places of safety was unsatisfactory and states that they were used only as a last resort.[201] MIND expressed concern however that "last resort" should not be interpreted loosely as "where there are insufficient resources to do otherwise".[202]

217. It emerged from oral evidence that although use of police cells as places of safety was regarded by all witnesses except the Home Office to be "widespread" there were no official figures on the number of place of safety detentions in police cells. In response to our questioning, the Home Office contacted 23 police forces to enquire about practice in the use of police cells as places of safety. They found that 17 police forces used cells as places of safety under section 136, because no alternative could be found in the area—within these 17 forces, an average of 328 people were detained in police cells under section 136 each year.[203] The Home Office noted that it was shortly to provide guidance for local protocols between police forces and local health services.[204]

218. ACPO was sceptical about the reliability of protocols to address the problem. They considered that a "more robust approach" was necessary that would identify where responsibilities lay, and establish clearly that detainees such as those held under section 136 were not solely the responsibility of the police but that this was a "multi-agency issue".[205]

219. The Coroner in the Roger Sylvester case recommended that priority should be given in the allocation of beds to people who were highly disturbed and could not be managed without the use of restraint. The Coroner's report also recommended that procedures should be put in place within the NHS for clinical decision making so that a section 136 detainee's transfer from police to NHS custody took place "as a matter of utmost priority with time of the essence".[206]

220. For as long as police cells continue to be used for these purposes, even in rare cases, the police have obligations under Articles 2, 3, and 8 to protect the safety of people detained in this way by addressing their particular needs. Compliance with Article 2 in the detention of a person known to be seriously mentally ill, and who may be at risk of suicide, requires informed psychiatric assessment and treatment, and expert monitoring.[207] These are standards which it will be extremely difficult for police custody suites, even the best equipped, to meet. People requiring detention under the Mental Health Act should not be held in police cells. Police custody suites, however well resourced and staffed they may be, will not be suitable or safe for this purpose, and their use for this purpose may lead to breaches of Convention rights. In our view, there should be a statutory obligation on healthcare trusts to provide places of safety, accompanied by provision of sufficient resources for this by the Government.

221. Ensuring the safety of people detained by the police is not a single agency problem that can be addressed by the police alone. It also involves the responsibilities of health authorities, and requires good co-ordination between health authorities and the police. Transfers from police cells to hospital must operate more effectively. We recommend that a statutory duty be placed on healthcare trusts to take responsibility for people detained under section 136 of the Mental Health Act

Detention in immigration removal centres

222. Concerns have also been raised about the detention of vulnerable and mentally-ill people in immigration removal centres. The Operational Enforcement Manual, which sets out policy on immigration detention, lists categories of people "normally considered suitable for detention in only very exceptional circumstances".[208] These include people suffering from serious medical conditions or the mentally ill, and people about whom there is independent evidence that they have been tortured.

223. The Medical Foundation for the Care of Victims of Torture, and Bail for Immigration Detainees (BID), reported that the "exceptional circumstances" standard is not being applied to all those falling within these categories, and that torture survivors and the seriously mentally ill are in practice detained, even where this is recorded in medical reports.[209] Medical Foundation research shows the particularly detrimental effects of detention on torture survivors in immigration detention.[210] BID provided us with details of cases of serious mental illness, attempted suicide and self-harm in immigration detention, including cases where detention continued against medical advice, and in cases where medical advice was that detention was exacerbating mental illness. They also reported that in some cases, medical staff's failure to pass on medical information to managers of detention centres meant that detainees' vulnerabilities might not be known.[211] Decisions on continued detention under the Immigration Act must be fully informed by any relevant medical and in particular psychiatric information. Where detaining authorities know, or ought to know (given adequate information exchange) that an immigration detainee is at risk of suicide, serious self-harm or severe mental illness as a direct result of continued detention, they will need to clearly justify such continued detention as compliant with Articles 2, 3 and 8.

188   Ev 92 Back

189   Q 93 Back

190   Q 296 Back

191   Q 74 Back

192   Q 148 Back

193   Ev 93 Back

194   QQ 74-76  Back

195   Q 147 Back

196   Mental Health Act 1983 Code of Practice, para 10.5 Back

197   Dr David Best & Amakai Kefas, The Role of Alcohol in Police Related Deaths, Police Complaints Authority, March 2004 Back

198   Mental Health Act 1983 Code of Practice, para 10.5 Back

199   Inquest into the Death of Mr Roger Sylvester, Report under Rule 43 of the Coroner's Rules 1984, April 2004, HM Coroner's Court St. Pancras Back

200   Inquest into the Death of Mr Roger Sylvester, op cit., Section 3, p. 8 Back

201   Q 265 Back

202   Ev 160 Back

203   Ev 96 Back

204   Ev 96 Back

205   QQ 412-413  Back

206   Inquest into the Death of Mr Roger Sylvester, op cit., Part 3, p. 9 Back

207   Keenan v UK, op cit., para. 115 Back

208   First Report of Session 2003-04, op cit., Ev 69 Back

209   First Report of Session 2003-04, op cit., Ev 106-107 and Ev 70 Back

210   Mary Sallinski and Susi Dell, Protection not prison: torture survivors detained in the UK, 2001, Medical Foundation for the Care of Victims of Torture Back

211   First Report of Session 2003-04, op cit., Ev 70 Back

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Prepared 14 December 2004