Mental Health Problems in Prison
In Part I of the examination of mental health in prisons, in the April edition of Converse, we looked at general facts about mental health problems within the prison estate. In this article we focus on what actually happens to prisoners who are transferred to hospital and what they can expect to find there and how it will affect them in respect of the sentence they are serving.
Some inmates are keen to get transferred to hospital and there are some who very much wish to avoid transfer.
For those who do wish to transfer it is necessary to have two approved psychiatrists examine and then prepare reports which support transfer. One of those doctors will in practical terms have to be able to offer a bed in a hospital.
The Doctor who is likely to offer a bed will usually have come from the prisoner’s home “catchment” area. Wherever the prisoner is habitually resident or was living at the time of sentence is his National Health catchment area. This is important because the Health Authority in that area has to pay for the hospital place. Many Health Authorities don’t have enough beds to offer and will pay for an out of area placement in private psychiatric hospitals.
As referred to in Part I of this article it is sometimes the case that prisons and visiting psychiatrists are reluctant to refer prisoners for appropriate assessment. This seems to be mainly guided by budgetary concerns and seems to be particularly acute in the privately run prisons. There seems to be a general reluctance within the privately run prisons to take steps in respect of prisoner’s physical and mental health which are costly, even if necessary for the health and wellbeing of the prisoner. The failure of any Prison Healthcare to take proper and appropriate steps to provide medical and healthcare for prisoners potentially gives rise to an action for medical negligence against the relevant authorities. It is usually necessary for the prisoner to have actually suffered some form of loss in the form of pain and suffering of a sufficient nature and degree to attract damages.
It is possible for a prisoner’s solicitor to obtain an independent psychiatric assessment. It is easier for the solicitor to justify what can be quite an expensive step if it is obtained within the course of the proceedings such as a Parole Board Review. That is not to say in certain circumstances that it would not be appropriate to get an independent psychiatric assessment for someone even if they did not have a Parole Board Review or other proceedings underway.
It is also helpful to have a solicitor who has an understanding of mental health law as well as prison law in such cases. This allows prisoners to be advised both in respect of the impact of a custodial sentence, of any potential transfer and also as to the rights that the prisoner has should he be transferred. It also means that there can be continuity of representation both on the mental health and prison aspects of the case.
There is a group of prisoners who has been told that they are to be assessed by a psychiatrist for transfer to hospital who very much do not wish to be transferred but to serve out their sentences and be released. It can be very difficult to prevent transfer if two appropriate opinions have been obtained. In certain circumstances an independent assessment can be obtained but often this will not be sufficient to prevent the transfer provided there are two appropriate opinions from approved psychiatrists.
I am sure inmates are all too aware of those who are suddenly removed to hospital shortly before they are due to be released and this is a most regrettable and unfortunate and unfair practice. It has the unfortunate effect of meaning that the prisoner is likely to be detained in hospital after their automatic release date has expired. It also quite understandably means that the unfortunate individual arrives in hospital feeling a great deal of resentment towards his situation having been removed within sight of release. Had the proper assessments been made earlier in the sentence then there would have been a realistic prospect of an early transfer to hospital and completing treatment and work in time to have been released on or about the same time as his or her sentence expiry. It is I am afraid a symptom of the overcrowding and delay in the prison system wherein the prison authorities only do something when compelled to by the prospect of the prisoner’s imminent release.
If a prisoner is moved to hospital he or she has the right to challenge the detention in hospital by applying to the Mental Health Review Tribunal. Non means tested legal aid is available from a solicitor who has a Mental Health contract. It is again helpful to have a solicitor who has experience of both mental health and prison law issues in such circumstances.
If the Tribunal is satisfied that the prisoner does not warrant being in hospital then the normal procedures would be that the prisoner would simply be returned to prison and to serve out his sentence. The exception to this being where the prisoner is detained on a life or other indeterminate sentence such as an IPP sentence. It is possible for the Mental Health Review Tribunal to say that the prisoner does not meet the criteria for detention and they would have discharged him but for his or her status as a prisoner. In these circumstances they can direct that the prisoner does not return to prison because his mental health would deteriorate. In these circumstances this would normally trigger a referral to the Parole Board who would come to the hospital and hear the case.
It is important to recognise that if a prisoner is transferred then the time spent in hospital counts as part of his or her sentence. I have recently heard of a prisoner who was transferred to hospital from a Category C prison in the North West of England who was told by prison healthcare on transfer that the time he would spend in hospital did not count towards his sentence. This information was highly distressing for the individual concerned and made him unhappy and unwilling to accept treatment in hospital. It emphasises the need for prisoners to get proper and impartial advice and information in these circumstances.
If prisoners are transferred then it will usually be initially be into high or medium security hospitals. There are exceptions to this and I have recently had a prisoner serving an IPP sentence transferred directly from a local prison to a low security hospital in the private sector.
The high security hospitals are Ashworth Hospital on Merseyside, Rampton Hospital in Nottinghamshire and Broadmoor in Berkshire. These hospitals are prepared to offer long term treatment and can take any category prisoner including Category A inmates. It would generally be expected that prior to release an onward transfer to a lower security category will take place.
Within the High Security Hospital system, these are DSPD Units (Dangerous and Severe Personality Disorder). These are a hospital based version of the DSPD Units that exist in HMP Frankland and in HMP Whitemoor. Unlike the prison based versions there are onward routes for care and steps downs through lower security hospitals. Within the prison based DSPD system at the moment there appears to be a lack of routes for prisoners to progress at the end of their therapy. This is particularly acute for those prisoners who have been maintained as Category A prisoners throughout their time in the DSPD Units in prison.
Many prisoners are transferred to what are called Regional Secure Units or Medium Secure Units. These are less secure and aim to have inmates progress towards either return to prison or release more rapidly than the high security hospital.
Because of the shortage of places in these units, many prisoners who are transferred find themselves referred out to the private sector. Many of these private hospitals have accommodation of a very high standard and they are often located in rural areas, frequently in old Country houses, one of the longest established is St Andrews Hospital in Northampton.
Many of these establishments have low security facilities within their grounds and it is possible to progress towards release without the necessity of transfer.
In addition to the provision in the high and medium security hospital there are a number of low security units scattered around the country. These are roughly the equivalent of open prison and as the name implies those detained at these units often have a great deal of liberty including home leave, town leave etc.
All of the hospitals aim to treat the individual as a patient and to try and help them deal with their mental health problems and will also try and assist and offer therapy and work in relation to offending behaviour and risk.
It is important to understand that transfer to hospital is not an “easy option”. Though the treatment and conditions may be a vast improvement on prison life it is important to remember that life as a patient rather than a prisoner has its own set of problems. As a patient an individual can be compelled to take medication against their will if recommended to do so by their Doctor. A prisoner can always refuse to take medication. A fixed term prisoner who transferred to hospital can be kept in hospital after the automatic release date in their sentence. They become what is called a 37(N) and can be kept there on the say so of the Doctor or Clinician who is responsible for their case. Again, it is important to understand that there is a well developed right of appeal and review through the Mental Health Review Tribunal. Again, it is very important to have a specialist solicitor who understands mental health law and preferably one who has an understanding of prison law as well.
For many prisoners who suffer from depression as a result of their circumstances in prison and family difficulties outside a transfer to hospital is not necessary. Their difficulties should be able to be addressed and assisted by the healthcare system in prison. For those whose difficulties are more severe then a transfer to hospital may well be the way forward and the routes with which they will be able to rebuild their lives and have a chance of success upon their release from custody. As stated before, it is important to recognise that each prisoner’s case is unique and has their own circumstances and needs careful advice regarding what is best for them as individuals.
Nick Wells and Joanna Dean at Swain and Co. Liverpool office and Adrian Syms at Southampton and Melanie Land at Havant have extensive experience of representing clients in mental health matters.