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

In Search of Respect

Gabrielle Watson’s first book, Respect and Criminal Justice, has been published by Oxford University Press.

Gabrielle Watson is the Shaw Foundation Fellow in Law at Lincoln College, Oxford. She was formerly a Leverhulme Early Career Fellow in the Faculty of Law and Postdoctoral Research Fellow in Law at Christ Church, Oxford. She works on topics at the intersection of criminal law, criminal justice, and jurisprudence.

My first book, Respect and Criminal Justice, was published in 2020 by Oxford University Press. It is the newest addition to the Clarendon Studies in Criminology series: the successor to the Cambridge Studies in Criminology series, inaugurated by Sir Leon Radzinowicz—the ‘founding father’ of British criminology—and JWC Turner 80 years ago.

The book offers the first academic study of ‘respect’ in criminal justice in England and Wales, where the value is elusive but of persisting significance. Its publication is especially timely in this political moment, as we reflect on the stark, seemingly intractable problems of police misconduct and deep structural racism, as well as the ongoing threat of COVID-19 and viral contagion in our prisons. Part of the push for criminal justice reform must involve the simple act of listening, followed by the search for robust theoretical ideas with which to frame the debate. In this piece, I reflect on the role and value of respect in prisons.

Owing to some sustained—but ultimately unsuccessful—reform efforts in recent decades, prisons regularly appeal to the word ‘respect’, proclaiming it as a core value in official discourse. Yet, on closer examination, the modern prison’s relationship to respect is not as clear-cut as institutional documentation would have us believe. 

In prisons, respect is a mere slogan. The real value and potential of respect as a critical and regulative ideal has been diminished by the tendency to treat it as peripheral to practical concerns such as target setting, the maintenance of order, and deterrence.

What is respect?

The book begins by attending to the deceptively simple question: what is respect? It turns first to philosophy with its rich Kantian literature on the issue, and its core claim that every human being has a claim to respect no matter what: respect need not be negotiated and cannot be forfeited. But contemporary philosophical accounts complicate matters by identifying respect in a number of ways: as a mode of behaviour, a form of treatment, a kind of valuing, a type of attention, a motive, an attitude, a feeling, a tribute, a principle, a duty, an entitlement, and a moral virtue.

If philosophers cannot agree, it should come as no surprise that prisons in England and Wales—notoriously pragmatic in their approach—have glossed over the meaning of respect. Yet empty appeals to respect distort as much as they communicate. When there is a lack of specificity in understanding and giving effect to respect, it does much to magnify the status inequalities that have come to define imprisonment. It also shows scant regard for the fact that respect—or lack thereof—tends to be felt more keenly by ethnic minority groups and those whose sense of belonging and social possibility in society are precarious.

As part of a reform agenda for the 2020s, prisons must be explicit in their definition of respect if they are to proceed according to—let alone realise—the value. My book offers some suggestions: among them, the idea that respect is both an act and an attitude, that it is ideally reciprocal, that it occurs at both the individual and the institutional level, and is the primary means by which to acknowledge an individual’s intrinsic worth.

Unsavoury punishment

To write a book on respect is an ambitious task, and I spend a good deal of time boundary-drawing in order to render it manageable. Perhaps the most striking illustration of respect—or lack thereof—in the book is to be found in a case study of prison mealtime from the eighteenth century to the present day.

The ritualised preparation and provision of prison food is imbued with considerable symbolic power, and its pivotal role in shaping the daily prison experience has been considerably understated. The dominant narrative in historical accounts of prison mealtime is that, pre-twentieth century, food was intended to punish, debilitate, and degrade. The eighteenth century may have epitomised the most indecent of prison conditions, where a restricted diet was an explicit feature of punishment. Part of the reformative work of John Howard was to offer an incisive critique of the practice of charging prisoners for meals, proposing instead that they be provided with a daily allowance of food. Nonetheless, his vision for respect was strictly minimalist:

‘I am not an advocate for an extravagant and profuse allowance to prisoners. I plead only for necessaries, in such a moderate quantity, as may support health and strength for labour.’

John Howard, The State of the Prisons in England and Wales, with Preliminary Observations, and an Account of Some Foreign Prisons (1777: 33).

By the beginning of the nineteenth century, the experience of imprisonment remained unimpeachably severe. Prison meals had seen no real improvement and consisted chiefly of bread and thin gruel or broths. There was cause for cautious optimism, however, following the introduction of prison inspections in 1835. Prison diet became a national scandal and inspectors made an explicit call for food to no longer act as an instrument of punishment. Advances were made in the quantity—if not the quality—of prison food but an instrumentalist line of thought endured, in part, due to widespread public support for a retributive approach and the prevailing conservative ideology of the period.

By the mid-nineteenth century, prison food had once again been called into question, with leading physicians of the time recommending a substantial reduction in portion sizes on the grounds that the food provided was excessive and insufficiently penal. To provide food sufficient to ensure good health would be to provide conditions of relative comfort, and the extremely poor with a positive incentive to commit crime.

Integral to more progressive developments was the commissioning of a Departmental Committee on Diets and the publication of its report in 1925 (289-292). Following the Committee’s investigation into prison food, the motivation to provide a nutritious diet to inmates was firmly established. The following year, the Committee made further calls for a more balanced and varied diet which included the provision of regular vegetables, the replacement of prison ‘cans’ with aluminium trays and utensils, and opportunities for prisoners to dine in association in the hope that it might cultivate in them a sense of self-respect. These reforms were indicative of a newly configured relationship between the state and its subjects, and a sustained attempt to afford prison mealtime a visibility and form that brought it into line with a society that considered itself to be civilised.

In the decades that followed, prison mealtime was visibly transformed. Prisoners were given increased involvement in menu design, and meals were gradually made available to those with religious, ethnic, cultural, and medical requirements. However, there is compelling evidence to suggest that, in prisons in England and Wales, food—if only implicitly—continues to form part of a penal strategy. Subtle institutional attempts at degradation through food persist, and daily meals serve as painful and periodic bodily expressions of the power that the institution exerts over the individual.

The National Audit Office, for example, noted concerns among prisoners that standards for the storage and preparation of ethnic and cultural food were not met consistently. It seems that prisoners’ lack of trust in this regard was not unfounded. The National Audit Office confirmed several cases in which prisoners had signed up in good faith to receive ethnic meals, which were later found to have been unethically prepared. Four out of sixteen prisons did not store halal meat separately from other meat and, in eleven prisons, kitchen equipment intended for those with Muslim diets was not labelled separately: by no means a peripheral problem in view of the expanding Muslim community in detention in England and Wales.

Such incidents make clear that, in practice, respect is not always reciprocal, whereby prisoners do not—even cannot—respect those responsible for preparing their food. When prisoners are denied ethically prepared ethnic meals, they are likely to become too distracted by the conditions of their confinement to respond respectfully to prison authorities who so unethically denied them respect.

The elusive promise

On 11 July 2018, HM Inspectorate of Prisons for England and Wales published its Annual Report, in which it documented two unannounced inspections that caused deep concern. HMP Wormwood Scrubs suffered from ‘appalling’ (p13) living conditions, violence, an almost complete lack of rehabilitative or resettlement activity, and seemingly intractable problems over repeated inspections. At ‘squalid’ (p5) and fundamentally unsafe HMP Liverpool, inspectors found some of the worst conditions they had ever seen. An impoverished regime, many cells lacked even the basic requirements for health and hygiene and the leadership and management focus on respect was ‘inadequate at every level’ (p15). It appears, then, that respect remains somewhat of an elusive promise.

Although respect is a precious commodity, in our prisons, it need not be utopian. It simply requires a degree of mutual understanding when it is owed to, called for, deserved, elicited, or claimed by another. With a sense of modest realism, the book sets out those challenges in detail—and envisages the advances that could be made—in inscribing respectful relations between state and subject.

Respect and Criminal Justice (2020). Oxford and New York: Oxford University Press. 256 pp.

 

Contact

Dr Gabrielle Watson, Shaw Foundation Fellow in Law, Lincoln College, Oxford.

Email: gabrielle.watson@law.ox.ac.uk

Website: www.law.ox.ac.uk/people/gabrielle-watson

 

Images courtesy of the author

 

Celebrating Survival

A review of “Prison: A survival guide” by Carl Cattermole

DavidBest1

David Best is professor of criminology at the University of Derby, Honorary Professor of Regulation and Global Governance at the Australian National University and Chair of the BSC Prison Research Network.

 

Politically, we appear to be surfing a new wave of being ‘tough on crime’ with more prisons to be built and a growth in the prison population to be anticipated. Outside of the political posturing however, all of us who have spent any time in the UK prison system recognise that prison is a tough, miserable and potentially damaging environment for all of those who have to spend time there, including but not restricted to the prisoners.

This is captured in a wonderfully accessible way in Carl Cattermole’s ‘Prison: A survival guide’ a lived experience account of what life in a UK prison is really like, with the original draft written by someone newly released from a male UK prison. The book does exactly what it says, providing a largely chronological account of how to get through the experience with as little distress as possible.

Cattermole1Illustrated with cartoons from Banx (@banxcartoons), it also provides a sense of hope – particularly around the friendships that can emerge in prison and how they can endure ‘through the gate’ – and the humanity that is a theme of the book comes across incredibly strongly. The book is warm and at times funny and is easy and accessible, but what makes this survival guide so important is the multiple voices contained within it.

Watch a video of Carl talking on Straightline.

Carl is a fabulous narrator and story-teller but his voice is supplemented with those of the partner of a prisoner, the child of a prisoner, a child prisoner, a prisoner who has a child in prison and the experience of a prisoner from a member of the LGBTI community. Each of these accounts is incredibly poignant and insightful and the strength of feeling is intense and powerful.

It would be extremely difficult to read the book without realising the ripple effects of pain and misery that imprisonment causes to families and to communities, but it is also impossible to read the Survival Guide without acknowledging the resilience and strength that emanates from each of these clear and powerful voices.

As a criminologist, I would like to recommend it not only to all of the members of the Prison Research Network but also to all of their students as a rich and layered insight into the prison experience. But it should also be mandatory reading for all prison officers and prison governors.

Of course, expecting politicians to read something that is inconsistent with their own prejudices and soundbites is unrealistic but perhaps some of those working in the MoJ and the Prison and Probation Service may be swayed by the pain and the power of this book.

Whether you think prisons are a necessary evil or not, this is a book that confirms the harms that prison inflicts while clearly proclaiming that there are a group of people who can and will overcome that harm. Whether they should have to is a critical part of the debate ‘Prison: A survival guide’ should generate. And perhaps Carl could be encouraged to follow it up with “Community: A survival guide”?

Buy the Book – Prisonism website

BSC members can win a copy of ‘Prison: A survival guide’ together with a copy of ‘Pathways to Recovery and Desistance: The Role of the Social Contagion of Hope’ by David Best by emailing ‘Prison Book Draw’ to info@britsoccrim.org  The draw runs through September and October with a closing date of October 29, 2019.

Book Summary

Prison A Survival Guide (Penguin, 2019) is the cult travelogue for the obfuscated and complex British prison system. Its primarily authored by Carl Cattermole, a 30 year old ex-prisoner, based in South London and sometimes Latin America, but also features contributions from female, LGBTQ+ and child prisoners and their supporting family members. Its target audiences are anyone who contacts the system: prisoners and their families, criminologists and politicians, citizens who want to bust media myths and know where ‘criminal justice’ £billions are being thrown. The first print run sold out in 10 days. Carl and other contributors are currently touring to promote the book.

 

Contact

Professor David Best, University of Derby

Email: davidwilliambest@icloud.com

Twitter: @davidwbest12

Copyright free image courtesy of author

Cartoons courtesy of Carl Cattermole and Banx (@banxcartoons)