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

The 12 Dichotomies of Drug Policy

A critique of contemporary drug policy and the drug apartheid.


Tammy Ayres is an Associate Professor in Criminology at the University of Leicester. Stuart Taylor is a Senior Lecturer in Criminal Justice in the School of Justice Studies, Liverpool John Moores University.

It has been a long hard year, full of challenges as we have all had to get used to new ways of working and increased pressures from the academy. Therefore, it is hoped that this blog brings a bit of festive cheer as we approach the Christmas break. Taken from a presentation delivered at the British Society of Criminology’s South West regional event ‘Dangerous Drugs in the Contemporary Era’, it provides an alternative slant on the 12 days of Christmas, drawing on our previous works to identify the 12 dichotomies of drug policy. There are no partridges in pear trees but there is hopefully food for thought. Here we present a critique of contemporary drug policy with our underpinning argument being that ‘any scientific examination of ‘drugs’ renders the present classification of illicit drugs as illogical and the present cultural promotion of legal substances as misguided… it is a ‘war between drugs’ a system of drug apartheid that has privileged the use of certain substances and outlawed the use of other substances, a corrupt system that has much to do with who uses the drugs and little to do with the risks posed by the drugs’(Taylor et al. 2016: 459). This drug apartheid is legitimised by a reductionist drug discourse, which presents fallacy as fact, cementing (erroneous) dominant constructions of drugs into our conscience, but dig beneath these and one unearths a series of contradictions and dichotomies, which together critiques what we see as a ho-ho-hopeless drug policy:

  1. Legal Vs. Illegal

Some substances enjoy unrestricted supply, some are available but regulated, others are prohibited. Resultantly, we often do not see certain substances as drugs. This is particularly true of legal substances, like alcohol, tobacco and sugar, which although legal are no less harmful than many currently prohibited substances. Bancroft (2009) has argued that this dichotomy reflects the social and cultural practices of the mid-20th century, rather than any pharmacological or scientific evidence, with drugs and their legal classification instead tied to Western capitalist interests and the exigencies of the current political economy and consumer culture (Ayres, 2017, 2019, 2020a; Taylor et al. 2020). The word drug has become associated with the illegal substances identified in the 1961 UN Single Convention of Narcotic Drugs and the UK’s 1971 Misuse of Drugs Act as the most dangerous drugs, which warrant their prohibited status. Yet the underpinning reasoning for this differentiation is opaque and not based on evidence or harm

2. Harmful Vs. Harmless

Illegal drugs have been posited as the most harmful – with statistical and visual reminders consistently reinforcing this (Ayres and Taylor, 2020; Taylor, 2008). Illicit drugs have been construed as causing health problems, addiction, crime, anti-social behaviour, and death. Whilst illegal substances can undoubtedly cause such harms, their use does not inevitably lead to such outcomes. In fact, most illegal drug use appears to be unproblematic, resulting in pleasure and fun rather than negativity and despair. Conversely, when we discuss legal substances – non-drugs – we tend to ignore their harmfulness and focus on their positive outcomes. Yet by constructing such substance as non-drugs we camouflage some the most destructive drug-related harms within society – obesity, tooth decay, loss of sleep, liver disease, cancer, the pharmaceutical companies, and the prescription practices of the medical profession. Harms that effect every member of society, in some form or another, at some time in their lives, derived from substances that fly under the dangerous drug radar.

3. Evidence Vs Ideology

This dichotomy between the legal and the illegal, between the harmless and harmful is purported by government to be driven by scientific evidence. Yet a body of critical scholars have begun to question the accuracy of this classification system (e.g. Nutt et al. 2010) and the place of non-drugs like alcohol and tobacco within it. Instead, drug policy is not driven by evidence, but by ideology (Ayres, 2020a; Ayres and Taylor, 2020), which is reflected in the recent swathe of global cannabis reforms (Taylor, et al. 2016, 2018).

4. Mitigating Vs. Enhancing Harm

A key justification for drug prohibition is that it mitigates the harms of those substances deemed dangerous drugs – yet we must question whether this is a tenable claim (Taylor et al. 2016). Firstly, drug prohibition permits us to embed the harms of legal substances as non-drug related. Secondly, drug policy suggests that it is the drugs and/or the drug suppliers/users themselves that cause harm, and yet a growing body of scholars argue to the contrary, that it is drug policy itself that is the primary cause of drug related harm (see Counting the Costs, 2012), like environmental degradation (Ayres, 2020b), as well as to stigmatise certain drug users.

5. Minority Vs. Majority

Yet to understand why we continue our crusade against drugs one must understand that the war on drugs has morphed into a war on drug users, particularly the problematic drug user – the heroin/crack-cocaine addict who commits crime to fund their use. Resultantly, over the past three decades we have developed drug policy based on this group of around 300,000 individuals. Whilst this group do undoubtedly require support and do indeed create harm to themselves and others, they represent the minority. Subsequently whilst we have developed support services for problematic users within the criminal justice system, we have failed to develop a pragmatic policy and services for all drug and indeed non-drug users.

6. Problematic Vs. Pleasurable

Focusing on problematic drugs and their users allows policy to avoid a recognition that for the majority, drug use represents a tangential element of their law-abiding lives; an appreciation that experimental or (in)frequent illegal drug use is a leisure pursuit engaged by a significant minority of the population; or an acknowledgement that many find solace, release and pleasure within their drug using lives. Instead, it allows drugs to be associated with problematic people, problematic behaviours and problematic outcomes as drug users are framed as others that are not like us (Taylor, 2008; Taylor et al. 2016).

7. Inability Vs. Functionality

The dominant view is that drug use negatively impacts on an individual’s ability to social function in terms of work, parenting, relationships etc. Yet this belies that the majority use drugs in a way that does not impinge on their ability to socially function, and for some, the benefits attained through their drug use – as with any other leisure pursuit – may enhance this. Yet instead of acknowledging those that sit in this middle ground, we instead construct two overly simplistic constructions of drug users (see Ayres, 2020a).

8. Civilised Vs. Barbaric

The consumption of certain (non)drugs is deemed civilised and the height of sophistication (e.g. Champagne), while the use of other drugs is associated with barbarism and uncivilization (e.g. the spice zombies) as the problematic drug user is used as a catch-all stereotype for all drug users, which is exacerbated by the media. In fact, the media partakes in objective violence through its purposeful polarisation of intoxication practices: ensuring the condemnation, alienation and criminalisation of the barbaric consumer; and the celebration and social recognition of the civilised (Ayres and Taylor, 2020).

9. Celebrated Vs. Excluded

Resultantly, we celebrate the substance use of the civilised whilst we seek to exclude the barbaric. So, whilst designated public place orders restricting the use of alcohol amongst street drinkers are enforced, those same streets see pop-up prosecco and gin bars permitted to appear as they attract the ‘right’ clientele. Whilst purveyors of alcohol are encouraged to remove high strength varieties of cheap cider from their shelves due to their association with problematic populations, those same shops expand the available range of craft beers and other high-end, high strength alcohol products (Ayres and Taylor, 2020)

10. Criminalised Vs. Commodified

This social accommodation of the civilized allows the corporate promotion and indeed commodification of both harmful substances and harmful behaviours (Ayres, 2020a; Ayres and Taylor, 2021). Yet barbaric use is also used to add an edge to consumer products despite the apparent abhorrence of its users as acts of so-called transgression are packaged up and sold back to us.

11. Individual Vs. Wider Responsibility

The civilised versus barbaric; celebrated versus excluded; and criminalised versus commodified dichotomies combine to serve a purpose. Attributing the barbaric use of legal substances to an irresponsible minority (who eat too much sugar, binge drink etc.) provides a smokescreen of corporate responsibility for the harmful practises of legitimate enterprises (Ayres, 2017; Ayres and Taylor, 2021). Meanwhile, in relation to illegal drugs, this process deflects attention towards the individual responsibility for addiction and away from the relationship between such use and the systematic violence of capitalism (poverty, social exclusion) which interlinks with this. Here the drug apartheid allows us to differentiate between appropriate and inappropriate drug consumption and to develop a system of punitive control to respond to such use (Taylor et al. 2016).

12. Patience Vs. Punishment

Through generic representations of illegal drug users as barbarians (Taylor, 2008) the brutal practices of the drug apartheid are disproportionality applied to the most marginalised in society, who we continue to punish, whilst we hail those celebrities who enter the Priory to combat their addictions. Whilst drug policies rightly distinguish that socially marginalised populations are more likely to develop problematic patterns of (illegal) drug use, they simultaneously place the responsibility for this on poor individual (consumption) choices rather than the wider underlying issues of poverty, education, accommodation, and employment, which characterise problematic drug users’ lives. Conversely, this is a process which (via medicalisation, criminalisation and stigmatisation) exacerbates extant underlying problems, with drug use becoming the key defining factor in users’ lives. Resultantly, the already excluded become further isolated.

Consequently, we need to detach ourselves from dominant constructions of ‘drugs’ and ‘drug users’, contest the drug apartheid, reconceptualise our approach to all substances, abolish drug prohibition, and develop a regulatory system which recognises and incorporates all substances. Until we do, there will be only one outcome, (unnecessary) harm.

Have a lovely Christmas and a Happy New Year

References

Ayres, T.C. (2020a) Substances: The luxurious, the sublime and the harmful. In S. Hall, T. Kuldova & M. Horsley (Eds.), Crime, Harm and Consumerism (pp. 108-122). London: Routledge.

Ayres, T.C. (2020b) The War on Drugs and Its Invisible Collateral Damage: Environmental Harm and Climate Change. In A. Brisman and N. South (Eds.), Routledge International Handbook of Green Criminology. London: Routledge.

Ayres, T.C. (2019) Substance Use in the Night-Time Economy: Deviant Leisure?. In T. Raymen, & O. Smith (Eds.), Deviant Leisure: A Criminological Perspectives on Leisure and Harm (pp. 135-160). Basingstoke: Palgrave MacMillan.

Ayres, T.C. (2017) Drugs, Leisure, Consumption and Harm, BSC Newsletter (winter), pp. 20-26.

Ayres, T. C., & Taylor, S. (2021) Drug Markets and Drug Dealing: Time to move on. In T.C. Ayres & C. Ancrum (Eds.) Understanding Drug Dealing and Illicit Drug Markets: National and International Perspectives. Oxon: Routledge.

Ayres, T.C., & Taylor, S. (2020) Media and Intoxication: Media Representations of the Intoxicated. In F. Hutton (Ed.) Cultures of Intoxication: Key Issues and Debates (pp. 239-261). Basingstoke: Palgrave MacMillan.

Bancroft, A (2009) Drugs, Intoxication & Society. Cambridge: Polity Press.

Count the Costs (2012) The Alternative World Drug Report. Available at: https://www.unodc.org/documents/ungass2016/Contributions/Civil/Count-the-Costs-Initiative/AWDR-exec-summary.pdf

Nutt, D., King., L., & Phillips, L. (2010) Drug harms in the UK: a multicriteria decision analysis. The Lancet 376(9752): 1558–1565.

Taylor, S. (2016) Moving beyond the other: A critique of the reductionist drugs discourse. Cultuur and Criminalitiet, 1, 100-118.

Taylor, S. (2008) Outside the Outsiders: Media representations of drug use. Probation Journal, 55(4), 369-387.

Taylor, S., Ayres, T.C., & Jones, E. (2020) Enlightened hedonism? Independent drug checking amongst a group of ecstasy users. International Journal of Drug Policy, 83, 102869.

Taylor S, Beckett Wilson H, Barrett G et al. (2018) Cannabis Use in an English Community: Acceptance, Anxieties and the Liminality of Drug Prohibition. Contemporary Drug Problems 45(4):401-424.

Taylor, S., Buchanan, J., & Ayres, T.C. (2016) Prohibition, privilege and the drug apartheid: The failure of drug policy reform to address the underlying fallacies of drug prohibition. Criminology and Criminal Justice, 16(4), 452–469.

Contact

Tammy C. Ayres, University of Leicester
Email: tca2@le.ac.uk

Stuart Taylor, Liverpool John Moores University
Email: s.taylor2@ljmu.ac.uk

Images: Courtesy of authors and Анастасия Белоусова from Pixabay