Reforming the Mental Health Act? A Criminal Justice Perspective

A discussion of the White Paper Reforming the Mental Health Act and what the proposed reforms mean for the criminal justice system.

Megan Georgiou is a postgraduate researcher at the University of Surrey. Her doctoral research explores mental illness in prisons and the ways in which health and justice services are shaped and organised to meet the needs of people in prison with a mental illness. Robert Meadows is a professor in the Department of Sociology, University of Surrey. His research is currently focused on artificial intelligence and mental health and public health responses to sleep.

Published in December 2018, the Independent Review of the Mental Health Act 1983 set out recommendations for government on how the Act required change in both law and practice. The recommendations centred around the notions of modernising mental health services and empowering individuals to have more say in their own care and treatment. It recognised that the way we understand and treat mental health has developed significantly in recent decades, as have public attitudes, however the law has largely remained grounded in a system established in 1959.

The White Paper Reforming the Mental Health Act, published in January 2021, has proposed a range of changes to address the review’s recommendations:

The reforms centre around:

  • Giving patients more control over their care and treatment and promoting dignity and independence.
  • Ensuring the needs of people with learning disabilities and autistic people are better met.
  • Addressing the disproportionate number of people from black, Asian and minority ethnic backgrounds detained under the Act.
  • Ensuring people with a serious mental illness who come into contact with the criminal justice system benefit from the proposed reforms.

It is this last group that we are interested in here, and specifically those in prison. The prevalence of mental health issues in prisons is significant, with an estimated 90 per cent of people aged over 16 years experiencing a mental illness, addiction or personality disorder. Incidents of self-harm and suicide reached record highs in recent years, with the most recent figures reporting 70 self-inflicted deaths in the year to September 2020 and 61,153 self-harm incidents in the 12 months to June 2020. The suicide rate in prisons is around ten times higher than in the general population. The rising number of prison suicides is attributed to cuts in staffing and budgets, too much time in cells, a punitive regime and overcrowding, as well as increased levels of violence and deterioration in safety, and restricted access to rehabilitative activities. Reform is therefore needed. However, is this the reform proposed by the White Paper?

With respect to those in contact with the criminal justice system, the White Paper puts forward the following changes:

  • Continuing efforts to support rapid diversion to mental health care and treatment from court or custody as appropriate.
  • Revising the statutory time limit on transferring people in prison who require treatment in a mental health hospital to ensure they are moved within an appropriate timeframe (28 days).
  • Introducing an independent role to manage transfer processes.
  • Extending the statutory right to an Independent Mental Health Advocate (IMHA) to patients awaiting transfer from a prison or an immigration detention centre.
  • Working to eliminate prisons as a place of safety so that people can be transferred directly from court to a healthcare facility, where they can receive a mental health assessment and treatment under the relevant section of the Act.

These do appear to be useful, necessary and welcome changes. However, it is not clear how they will be achieved. At the very least, if these objectives are to be met the consultation needs to reconsider some of the questions it is asking.

Of most import, it needs to ask, ‘how can improvements be made to the infrastructure to ensure the statutory time limit is managed effectively and patients’ needs are met?’ For instance, in relation to people who require transfer from prison to a mental health inpatient service, existing DHSC Good Practice guidance states that the transfer should take place within 14 days after the first assessment has taken place. Figures from 2016-17 indicate that only 34 per cent of people were transferred in time and 7 per cent of people waited for more than 140 days. The change to 28 days, extending rather than the claimed ‘speeding up’ of the process, does not address the root causes of the initial failures to meet the targets and what needs to be put in place to rectify them. As recognised in a 2008 report, bed occupancy levels and barriers/facilitators to timely progression throughout the secure mental health system must be addressed for the system to function as intended. It also emphasises the need for effective multi-agency working and transfer coordinators to ensure the smooth running of the process.

Further to this, many of the more complex proposals lack detail and clarity as to when they might come into play. Throughout the document there are remarks of “…we will not commence this provision until X is properly embedded” or “…we are not planning to legislate immediately due to X”. It also states that the reforms are subject to affordability and will be subject to future funding decisions, including the Spending Review 2021. Given these uncertainties, perhaps a useful question for the White Paper to ask is ‘how can we convince that we are committed to making meaningful change to mental health legislation, especially within the criminal justice system?”

Ultimately, the proposed reforms are welcome, but it remains unclear whether they can go far enough in addressing the various and multifaceted issues that exist within the criminal justice system in relation to mental health. Significant reform is required to provide people in prison with a package of care that is suitable to their needs and follows them throughout their pathway. Until then, equivalence of outcomes for people receiving healthcare in prison with those in the community will not be achieved.

Megan Georgiou, University of Surrey
Email: m.georgiou@surrey.ac.uk
Twitter: @meggeorgiou

Robert Meadows, University of Surrey
Email: R.Meadows@surrey.ac.uk
Twitter: @RobertMeadows16

Images: Courtesy of authors

Who’s Afraid of Critical Race Theory Today?

Critical Race Theory was launched as an analytical framework to expose institutionally racist social structures. Instead of being embraced, however, it currently finds itself attacked by various governments around the world

image of author

Lambros Fatsis is Lecturer in Criminology at the University of Brighton and the co-author (with Mark Carrigan) of the forthcoming The Public and Their Platforms: Public Sociology in an Era of Social Media and Policing the Pandemic: How Public Health Becomes Public Order (with Melayna Lamb).

Two decades ago, a group of distinguished American legal scholars like Derrick Bell, Patricia Williams, Cheryl Harris, Mari Matsuda, Kimberlé Crenshaw, Richard Delgado and Charles Lawrence founded Critical Race Theory (CRT). Introduced as a theoretical perspective and an innovative mode of scholarship – blending academic research with storytelling – CRT aimed at exposing institutionally racist social structures that routinely produce unjust outcomes for people of colour, and especially Black people. As such, CRT was unsurprisingly opposed by those who felt attacked by it. Derrick Bell’s classic essay: Who’s Afraid of Critical Race Theory?  gives us a hint, as does Patricia Williams’ observation about how ‘statements alleging oppression sound like personal attacks, declarations of war’.

Bell and Williams committed those words to paper in the early 1990s. Their analysis, however, loses none of its resonance today as recent attacks on CRT demonstrate. It therefore seems appropriate to ask: Who’s afraid of Critical Race Theory today? As examples from the US, the UK and France illustrate, there are good reasons to fear those who fear CRT – especially when they want to silence it through inflammatory rhetoric and punitive policy-making that reveals a reactionary stance towards social justice, that is as alarming as it is dangerous.

In the US, a recent White House memo described CRT as ‘divisive, false, and demeaning propaganda’ that ‘is contrary to all we stand for as Americans and should have no place in the Federal government’. In disconcertingly McCarthyist language, the same document instructs all Federal agencies to:

‘identify all contracts or other agency spending related to any training on “critical race theory”, “white privilege,” or any other training or propaganda effort that teaches or suggests either (1) that the United States is an inherently racist or evil country or (2) that any race or ethnicity is inherently racist or evil. In addition, all agencies should begin to identify all available avenues within the law to cancel any such contracts and/or to divert Federal dollars away from these unAmerican propaganda training sessions’.

In the UK, the government’s Minister for Equalities, Kemi Badenoch, also railed against CRT – emphatically declaring that ‘this Government stands unequivocally against Critical Race Theory’ and stressing that ‘any school which teaches these elements of critical race theory as fact or which promotes partisan political views […] without offering a balanced treatment of opposing views is breaking the law’. So consumed was Badenoch in her anger at CRT that she suggested that bestselling anti-racist authors like Reni Eddo-Lodge and Robin DiAngelo ‘actually want a segregated society’. In France, the Minister of Education, Jean-Michel Blanquer, claimed that ‘indigenist, racialist, and “decolonial” ideologies,’ imported from North America, were responsible for ‘conditioning’ the violent extremist who assassinated school teacher, Samuel Paty, last October.

All this could be dismissed as mere authoritarian posturing, yet these histrionic outbursts become translated into policy. In the UK, government guidelines on school curricula that target ‘divisive or victim narratives that are harmful to British society’ attest to that. As does the assignment of equality roles to people whose views undermine the agendas that they are supposed to prioritise. Consider the appointment of a Race Equality chief (Tony Sewell) who downplays the reality of institutional racism. Or perhaps the head of the No. 10 policy unit (Munira Mirza), who also considers institutional racism a ‘myth’ and thinks of race disparity audits as ‘dangerous and divisive’. Last but not least, think about the new chair of the Equality and Human Rights Commission (David Goodhart), who staunchly defends ‘hostile environment’ immigration policies, and ‘white self-interest’. Such a line-up of “equality-bashing” equality chiefs is hardly accidental or a transient deviation from the norm. It personifies how governments think and act when their interests are threatened by calls for fairness and justice.

It is little wonder that CRT became the target of a witch-hunt, in an attempt to de-legitimise it and avoid addressing the substance of its critical analysis – out of fear that it might expose how social inequality is normalised, legitimised and institutionalised through ideas, people and decision-making processes. The hostility against CRT therefore starts making sense when social justice is perceived as dangerous and threatening to political agendas that depend on inequality to preserve self-interest. Worse still, this brand of political conservatism (authoritarian populism redux?) does not simply oppose interventions to promote equality and social justice. It institutionalises its objection to such interventions by dismissing them as ‘ideological’ and declaring them ‘illegal’.

Ironically, such an irrational fear of CRT bolsters confidence in it as a critical framework which helps us analyse why and how a government might attack Black or anti-racist scholarship as ‘ideological’ and ‘illegal’, when that same government acts in an ideologically-driven and unlawful manner. Examples include: denying institutional racism despite ample evidence to the contrary (see, e.g. here and here), ignoring scientific advice on public health emergencies, introducing police powers against evidence of their discriminatory outcomes, deriding ‘activist lawyers’ and ‘left-wing criminologists’, acting unlawfully through the prorogation of parliament in the heyday of Brexit, breaking international law with its internal market bill and passing Covid-19 regulations by ministerial decree without parliamentary scrutiny.

The cumulative effect of such recklessness indicates a haughty contempt for evidence, the rule of law, academic freedom, dissent and accountability. Seen in this context, crusades against CRT sound like frustrated screams at reality, instead of attempts to listen to the evidence, respect the law or engage with counterbalancing arguments. Despite all the clamour about CRT dominating school curricula – which is unfounded – it is the single-minded opposition to CRT that proves to be one-sided, thereby ‘promoting divisive or victim narratives that are harmful to British society’ to use the government’s own wording against itself. Fear of CRT by those who are challenged by it, appears more dangerous and threatening that CRT could ever be. Political rhetoric and policymaking that is based on wilful blindness and angry reaction to embarrassing facts runs the risk of (mis)educating entire generations of citizens, by desensitising us to social injustice. Instead of sharpening critical thinking skills and promoting ethical conduct, the “war” against CRT deliberately misleads, obfuscates and frustrates the development of truth-seeking and truth-telling citizenship – through subterfuge and bluff that attempts to convince us that calling out policies that create harm and victimise people promotes victimhood, instead of highlighting social injustice.

Resisting such desperate attempts to mute CRT to inaudibility, it seems to appropriate to end this article by amplifying its message through the voice of my favourite CRT scholar; Patricia Williams. In The Alchemy of Race and Rights, Williams buttresses ‘truth-denying truisms’ of colour-blindness, or post-raciality, by reminding us of the ‘power of racism as status quo’. According to Williams ‘it is deep, angry, eradicated from view, but strong enough’ to make up ‘its own breed of narrower, simpler, but hypnotically powerful rhetorical truths’ that ‘that set up angry, excluding boundaries’ tempting people to ‘sink so deeply into the authoritarianism of their own worldview’. In just a handful of phrases plucked from a book that brims with eloquence and insight, CRT – in Williams’ hands – emerges as the thoughtful, considered antidote to the noisy bullishness of CRT’s attackers. One may disagree with Williams’ analysis, or reject CRT altogether. Judged against the baseless pronouncements of those who wish to suppress it, however, CRT succeeds at unmasking the ideological commitments of those who whip themselves up into rage to avoid criticism; blaming scholars for pointing out the divisions that their political agendas create.

Dr. Lambros Fatsis, Lecturer in Criminology, University of Brighton

Twitter: @lfatsis

Copyright: Photo by Lan Nguyen from Pexels

White Supremacist Insurgency: The OAS 1961-1963

The OAS insurgency in Algeria and France as a case study of organised white supremacist violence.

Rafe McGregor is senior lecturer in criminology at Edge Hill University, where he researches political violence, media and culture, and policing.  He is the author of A Criminology of Narrative Fiction (2021) and Narrative Justice (2018) and has published in criminology, philosophy, politics, literature, and education journals.

The political unrest that accompanied Joe Biden’s succession to the US Presidency earlier this month reminded me of the dismantling of apartheid in South Africa from 1991 to 1992, during which I was an undergraduate at the University of KwaZulu-Natal.  In both cases, there was a threat – or at least a perceived threat – of a white supremacist coup d’état and a concern that it would either be led or supported by elements of the armed forces.  In SA, State President F.W. de Klerk countered the threat by dismissing the most reactionary South African Defence Force and South African Police generals and in the US, the massive Homeland Security apparatus seems to belatedly be taking white supremacist extremism seriously.  The question remains, however, as to what particular challenges a popular and well-organised white supremacist insurgency might raise.  There is a relatively recent historical example that has received very little attention in the Anglosphere, the OAS’ insurgency in Algeria and France from 1961 to 1963.

The Organisation armée secrete (OAS) was formed by General Raoul Salan in Madrid in December 1960 from exiled pied-noirs (white settlers in Algeria) and renegade French military officers who had taken part in the failed Algiers Putsch of May 1958.  The OAS was reinforced after the failed General’s Putsch of April 1961, with a Madrid, Algerian, and Metropolitan branch, each of which included an Organisation-Renseignements-Opérations (ORO) section.  The Madrid OAS proved ineffectual, but the Algerian and Metropolitan OROs launched insurgencies in May.  The de facto leader of the Algerian ORO was Lieutenant Roger Degueldre, formerly of 1er REP (Régiments Étrangers de Parachutistes), who led the Delta Commandos, a unit of 200 operators divided into cells of half a dozen across Algiers and Oran.  The Metropolitan ORO was commanded by Captain Jean-Marie Curutchet, formerly of 14e RCP (Régiments de Parachutistes Coloniaux), whose mission was the murder of President Charles De Gaulle.  The first attempt on De Gaulle’s life was an ambush on Route Nationale 19 on 8 September.  De Gaulle escaped unscathed, the police made their first arrest within the hour, discovered the identities of the entire ORO cell that night, and arrested General Vanuxem, head of the Metropolitan OAS, the next morning.  The Metropolitan OAS nonetheless went on the offensive, taking advantage of a reinvigorated Front de Libération Nationale (FLN) insurgency in Paris and the tensions caused by the Paris police’s massacre of between 40 and 300 Muslims on 17 October.  At this point, the OAS enjoyed the support of 80 deputies in France’s National Assembly and Degueldre’s Deltas had defeated both the police and the FLN in Algiers, including an elite counter-insurgency (COIN) unit of 80 barbouzes (a derogatory term for undercover police agents).

Both branches of the ORO intensified their violence in January 1962, but this proved counterproductive for the Metropolitan branch when a four-year-old girl was maimed by a bomb blast in Paris on 8 February.  There was a public demonstration against the OAS that night and the police responded with characteristic excess, killing eight people.  Five days later hundreds of thousands of Parisians turned out for the funerals in a peaceful protest against both the police and the OAS.  The ceasefire between France and the FLN on 18 March turned the three-way struggle between France, the OAS, and the FLN into a two-way struggle that the OAS could never win.  Salan’s renaming of the organisation as the Conseil National de la Résistance (CNR) had little impact: both he and Degueldre were under arrest by the end of April and Algerian operations had ceased by the end of June.  The Metropolitan CNR remained determined to kill De Gaulle and an ORO cell led by Lieutenant Colonel Jean-Marie Bastien-Thiéry, an engineer in France’s Air Ministry, ambushed his motorcade in Paris on 22 August.  De Gaulle and his wife survived a hail of nearly 200 bullets, fourteen of which hit their car, without injury and Bastien-Thiéry was arrested in January 1963.  He was tried in February and became the last French citizen to be executed by firing squad on 10 March.  While he was on trial, the police prevented a third assassination attempt, by a sniper, which seems to have been the basis of Frederick Forsyth’s bestselling thriller, The Day of the Jackal (published in 1971).  CNR bombs continued to disturb life in Paris during 1963, tailing off until the last detonation on 11 July.  By the end of the year, however, all but three of the CNR’s leadership were in custody.

From May 1961 to May 1963 the OAS/CNR was responsible for 12000 bomb detonations, 2000 attacks, and 1400 deaths on both sides of the Mediterranean.  There are three features of its defeat that have a bearing on white supremacist insurgencies more generally.  First, traditional COIN tactics had little effect.  Most if not all of the ORO operators had military training and combat experience, in consequence of which they were able to outmanoeuvre and outgun the barbouzes.  Second, in common with almost all insurgencies, the loss of public support proved crucial.  Third, the question of the military’s position was pivotal.  Salan erred by assassinating an army officer in Algiers in September 1961 and the military made an irreversible commitment to France by capturing the Algerian OAS leadership in Oran in March 1962.  In the space of two months, both the public and the military thus made decisive turns against the OAS.  The sympathy of the military and the police is one of the factors that makes a potential white supremacist insurgency particularly dangerous.  The lessons from France’s failure and SA’s success in preventing insurgencies suggest that the purging of sympathisers, particularly those of staff rank, is an effective COIN tactic.  As a tactic, it is most effectively deployed at the planning rather than the operational stage, before an insurgency has the opportunity to gain the support of the military and the public, a measure the US has traditionally been reluctant to take.

Dr Rafe McGregor, Edge Hill University

Email: mcgregor@edgehill.ac.uk

Twitter: @detectingharm

Website: https://www.researchgate.net/profile/Rafe_Mcgregor

Images: Courtesy of author