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 66/901994 – Completion of the Reed Reports1996 – HMIP ‘Patient or Prisoner?’1999 – HMPS/NHS ‘The future organisation of prison health care’ 1999 – DH ‘National Service Framework for Mental Health2001 – 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 departmentsCliniciansAcademicsProfessionalsNon-statutory organisations

iii. Expert event – conclusions and recommendations

Convergence project (2)

Analysis of legislation and policy:

1. Criminal Justice Mental Health teams

2. Mental health courts

3. Mental Health Treatment Requirement

4. IPP sentences

5. DSPD Programme

6. Hospital and Limitation Direction

1. CJMH teams

Diversion schemes have developed since 1990s

150 by 2000s

Limitations of current arrangements:

No central strategyPatchy coveragePiecemeal impactModestNot influential or assertive

CJMH teams (2)

Bradley specifications:

Core minimum standards for each teamNational networkReporting structureNational minimum datasetPerformance monitoringLocal development plansKey personnelMandated 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 sentencingReview 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 needsNot integrated Time-limited fundingRedundant 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

BrightonStratfordOne year funding350 offenders per year

3. Mental Health Treatment Requirements

Implemented in 2005 (CJA 2003)

One of twelveLess than 1% of all requirements918 issued in 2008

A missed opportunity’ due to:

Lack of knowledge and understanding Lack of unified purposeUnclear criteria Poor identification Unclear breach process Poor inter-agency communication

Mental Health Treatment Requirements (2)

Potential benefits:

Flexible sentencing provisionDiversion optionRobust supervisionEngagement with servicesReduce reoffendingCost-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:

VolumeLack of informationShortage of coursesVolatile 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 dangerousnessIndeterminacyImpact on familiesAvoidance of mental health servicesExclusion 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 hospitalsBroadmoor and Rampton

12-bed ‘Primrose’ unit for womenHMP/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:

EthicalNon-medicalLimitations of risk-based interventions

Some research findings:

DSPD requires the detention of six people to prevent one crimeDSPD started badly, but may have a useDSPD 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 uses16 patients detained in forensic mental health services under a HLD (31st December 2007)

Hospital and Limitation Direction (3)

Mental Health Act 2007

All mental disordersImplemented November 2008

Proposed benefits:

Flexibility in sentencingClinical treatment and aftercareSocietal justicePublic protection

Hospital and Limitation Direction (4)

Potential risks:

Clinicians as agents of the statePressure on sentencersFundamentally un-therapeuticDoctor as gaolerDiscontinuity of care

‘Avalanche effect’ *

Punitiveness‘Double indeterminacy’Alternative defencesResources 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

Max.Rutherford@scmh.org.uk