Mentally Disordered Offenders in Forensic Rather Than Hospital

Assess the care for sentencing mentally disordered offenders to prison rather than a forensic psychiatric hospital setting. The 19th Century saw many efforts to remove mentally ill offenders from the prison system. Bethlam Hospital in London opened a new wing for the criminal offenders who were diagnosed with a mental illness. Shortly after, Broadmoor hospital was opened. However, this did not end the detention of the mentally ill offenders in prison; although more special provision was being created within the prison system for those who were not able to be transferred to a mental hospital. There have been a number of cases highlighted that large numbers of mentally ill offenders are finding themselves in the prison system. There is, however, only a small minority of prisoners who are experiencing severe mental disorders, which under the mental health legislation warrants detention. The majority of offenders with mental health problems combined with substance abuse continue to remain in the prison system. The report of the Gladstone Committee in 1985 recommended that all prison officers with medical expertise be experienced or trained in the subject of mental illness, further acknowledging the fact that there is a significant presence of the mentally disordered offenders in prison. In assessing the case for sentencing mentally disordered offenders to prison rather than a forensic psychiatry hospital; it is necessary to look at the issues related to the interface between the prison service and the mental health services with regards to the way in which prisoners with mental health problems are managed. In 1988, the American Psychiatric Association 's Council of Psychiatry and Law clearly approved the use of mental hospitals as prisons. The Council affirmed that psychiatric patients who no longer needed active psychiatric treatment or those who were deemed to be untreatable could still be managed in a psychiatric setting. Those who were acquitted and were unable to be discharged to an outpatient status were to remain under psychiatric care in the hospital setting. Psychiatrists are confronted with the realisation that the mental hospital is a prison and that the psychiatrist who works there is a ‘jailer’, they deceive themselves, just as much as they deceive the public, with the expression of ‘care.’ It is clear that as long as law, psychiatry, and society define particular behaviours as mental disorders, assign the responsibility to control those who display such behaviours to psychiatrists, who eagerly embrace that responsibility, i.e. seclusion and restraint; in other terms psychiatric coercion will remain a key characteristic of psychiatric practice. (Szasz, 2006)
The criminal courts have the ability to make a determination about the correlation between someone’s mental health and their degree of responsibility for the crime they have committed; particularly with regards to serious offences such as homicide. However, it is somewhat recently that that the criminal courts became concerned with the significance of someone’s mental health and their liability for a crime. According to Bluglass and Bowden (1991) roughly 20 Acts of Parliament were passed that were associated with the care of mentally ill offenders in particular institutions. Legislation regarding the involuntary hospitalisation of mentally disordered offenders has progressed significantly since such law of this type was passed in the eighteenth century. At that particular time, the law was aimed at vagrants via a number of Vagrancy Acts. These acts gave way to the Criminal Lunatics Act (1800). Furthermore, the County Asylums Act (1808) lay down the path for the increase of local asylums that made up most of the psychiatric care system. (Jones, 1993, pp. 36-37) It is evident from the Act names that originally, mental health legislation was designed to care for those that were less fortunate. Local asylums were segregated from other institutions and during the nineteenth century, there was a growing concern about the way in which those in such institutions were detained. The Mental Health Act (MHA) 1983 set out provisions where treatment and powers of detention could be applied with regards to mentally disordered offenders. The 2007 amendment of this Act gave approved mental health professionals and doctors the power to not only detain patients but assess and treat them for their mental disorder without consent. For many patients; the process of detention only ends when the condition of their mental state has improved; “for others, they will seek a review of their detention by a Mental Health Review Tribunal.” (Bartlett and McGauley, 2009, p. 262) The Criminal Lunatics Act (1860) allowed for the detention of patients who had committed offences due to mental illness as an alternative for custody in prison. Broadmoor hospital was built as an institution to house such offenders who were previously detained in a variety of different settings; none of which catered for mentally disordered offenders. Court Diversion Schemes were designed for the mentally disordered offender; where its prime function was to transfer such offenders from the criminal justice route to the psychiatric hospital route; if their mental condition certified this. Court Diversion Schemes provided “appropriate intervention for people with mental disorder charged with a criminal offence.” (Bartlett and McGauley, 2009, p. 264) Mentally disordered offenders can be admitted to hospital through particular routes. Under section 35 of the MHA 2007, mentally disordered offenders can be brought to hospitals for assessment, which allows the offender to be sent to a particular hospital for an analysis on his or her mental condition; under Magistrate or Crown Court orders. “Magistrates’ Courts provide a convenient and timely opportunity to assess the accused.” (Bartlett and McGauley, 2009, p. 264) Section 37 of the MHA 2007 is used for offenders who have already been convicted of an offence, where it is deemed more suitable for them to be treated in a hospital rather than serve time in prison. Hospital Orders can be implemented in such cases on three accounts; one is that the offence committed does not have a fixed penalty by law; secondly that the Magistrates’ or Crown Court are content that the offender is suffering from a mental disorder and finally that the court, taking everything into consideration, including other means of transfer, believe that a Hospital Order is the most appropriate transfer technique available to them. The 2007 Act ensures satisfaction from the court that medical treatment will be available on the count that it will prevent the mental condition of the offender to worsen. This effectively gives courts the ability to establish judgement on whether treatment is an option which will benefit the mentally disordered offender; and if not then they should be dealt with by the criminal justice system. (Bartlett & McGauley, 2009) It must be noted that the Mental Health Act does not apply in prison. Therefore, prisoners who develop mental disorders whilst in prison serving a sentence can be offered treatment by ‘in-reach’ psychiatrists or NHS doctors. Prisoners have the right to refuse treatment but this may mean that because of the state of their mental condition, they pose a risk to themselves and others, which provides a ground for the chance of transfer. The numbers of prisoners who are transferred from prisons to hospital vary every year; however between 700 and 800 people in the 1990’s saw themselves being disposed to the psychiatric setting. The Institute of Psychiatry carried out a survey in 1978 and found that at least one third of prisoners would benefit from receiving psychiatric treatment. (Fennell, 1991, p. 334) The treatment of mentally disordered offenders within prison is ethically unjust with regards to current legislation in place. One way in which legislation fails is in ensuring that mentally disordered offenders have access to particular resources needed for their treatment. Despite many improvements in prison services for such offenders, there is still an argument that the mentally ill population in prison are not being governed by existing legislation or services. The rates of mental illness and the rates of suicide in prison, for both men and women are higher than in the general population. (Shaw et al, 2004) Research carried out by Dooley in 1990 found that the records of prison suicide in England and Wales showed that 22 per cent of cases of mental disorder led to suicide. (Webb and Harris, 1999) However, Durkheim rejected the idea that suicide was caused by mental illness. He believes that suicide is explained by social causes; where he identified 3 types of suicide on such grounds; egoistic, altruistic and anomic suicide; all caused by factors in society where there has been a lack of integration or lack of moral discipline. Legislation dealing with mentally ill offenders is criticised for the ways in which legal powers have emphasised risk reduction and protection of the public, rather than addressing the issue of access to treat or service provision. An ‘ordinary’ person has the right to have their case presented by a jury to establish their guilt. However, an order such as a Hospital Order flouts this basic entitlement because an offender does not even have to be tried by a jury, nor does a conviction have to be made; yet a hospital order can be passed. In instances of unfitness to plead, the offenders’ actions are judged based on “trial of facts” (Bartlett and McGauley, 2009, p.269) meaning that an offender can be disposed to a psychiatric hospital setting without any determination of his guilt. This creates the assumption that the offender had committed the act in question. Thomas Szasz argues that the insanity plea denies offenders the ability to plead their innocence; because very rarely have they gone to court and tried by jury. He further talks about presumption of competence in that being accused of mental illness should be similar to being accused of a crime, just how we presume criminal defendants are legally innocent; we must presume that psychiatric offenders are mentally competent. Furthermore, he believes that individuals charged with any offence should not be treated as incompetent merely on the basis of what mental health professionals have to say; but that it should be a decision determined via the judicial system, enabling the offender to have trial by jury. Custody can have a great impact on the mental health condition of offenders. Conditions of prisons, together with strict day to day regimes means that mentally disordered offenders are restricted and locked up for most of the day; meaning that mental health problems are likely to exacerbate. A large number of psychiatric patients are assessed and treated within prisons; which are evidently not designed to deal with such people; and cannot meet the same standards of care as hospitals designed particularly for this purpose. The Chief Inspector of Prisons commented in his report for 1995-6 stating that “We are concerned about the number of prisoners with mental health problems, whose condition prison is more likely to worsen than improve...” (Webb & Harris, 1999, p. 55) Functionalists such as Durkheim and Parsons argue that crime is a part of society and that it is needed in order to function; but Marxist writers such as Foucault would argue on the grounds of power and knowledge; in that psychiatry is used as a form of social control. It is an agent of the state, and is a way of managing society. Locking people up, Foucault argues keeps those that society finds difficult to understand and deal with out of sight and out of mind. However, this is seen as oppressive and does not serve the needs of the individuals or society itself. Marxist writers also argue that the mentally ill offenders are disadvantaged because of a capitalist system; working class, mentally ill people are locked up in prisons simply because it is cheaper to do to. The cost of keeping someone in a forensic mental health setting rather than a prison setting is effectively a lot more. It costs almost double to run a prison like Grendon, with a therapeutic setting than a normal prison. In prison, those diagnosed with mental illness do not have the extra treatment available. Therefore, they are treated as the normal person would be. Furthermore, prison officers are actually paid less than the forensic mental health nurses because they are in reality putting themselves in danger by working with particular groups of mentally ill offenders. The prison service was given the remit by the Home Office in 1990 to offer all or some offending behaviour programmes; in practice, the reason they do not is because it costs too much. The money for such programmes is not readily available. (Tresidder-Spivey, 2011) In the forensic mental health setting music, art, drama and dance therapy are readily available. However they are not in the prison setting. Art therapists work mainly with young people; and in such settings education is used as a therapeutic tool. The four different types of therapies are specialised areas and require people to be brought in on a contractual basis; as they are standalone therapies. The remand system that prisons have in place means that education packages do not work in such settings. Therefore, mentally ill offenders are not getting access to the treatment that should be made available to mentally disordered patients. Prisons such as Grendon, which have specialist therapeutic facilities; and are treatment based is argued to be the way forward. Grendon prison has proved to be successful in dealing with mentally ill offenders. Grendon prison developed in its practice due to a few factors; one being that Grendon was idealised as a very important institution of the British penal system. Grendon prison was designed like Jeremy Bentham’s idea of the panopticon, maximising the ability of the staff to see what was going on. “The Grendon Model of imprisonment was more humane for both prisoners and staff.” (Morris, 2004, p. 26) The culture of Grendon prison was such that it promoted pro-social and anti-criminal attitudes. Grendon was based on the principle of understanding why people offended; as a means to reduce criminality. Grendon prison allowed for prisoners to receive medico-psychological treatment. (Morris, 2004) The prison has an intensive therapy programme, and is the only prison in Europe to operate as a therapeutic community; which has proven to reduce reoffending crime rates. Prisoners have to sign up for group therapy sessions on a daily basis where they discuss events that may have triggered their offending behaviours. The thinking of prisoners is deeply challenged by intensive regimes that Grendon prison offers, and despite a 20 per cent drop- out rate, the therapeutic regime appears to work for the majority. It enables individuals to be held accountable for their actions and gives them the chance to shape their behaviours in a positive manner. The therapeutic community in Grendon aimed to bring the mind and body together in that bodily actions would be controlled by the secure prison setting; whilst therapy could manage the problems of the mind “that perpetuated the problems that the body perpetrated.” (Morris, 2004, p.10) However, According to Szasz, the mind is not part of the body. The mind, Szasz suggests is a metaphor and no such thing exists. Therefore we cannot associate the two. Szasz and Hoyer argue that humans are rational beings and from a Classicist perspective, everyone makes rational choices, if one suggests that mentally ill offenders are not rational thinkers, then it must be said that they should not be sentenced to imprisonment. Grendon prison adopts almost a restorative approach to punishment, in that it gets offenders to think about the victim, and to recompense for their actions. According to Braithwaite, the purpose of punishment is to shame people into conformity and reducing crime. The concept of shaming an individual for his or her actions leads them to accept responsibility for their crime. It somehow presents a forward looking view in that criminals need to recognise what they have done to harm the victim, preventing it from happening in the future. (Blanchard, 2010) For most prisons, it is not about managing individuals and caring for them; it is about the recidivism rates. They are more concerned with the rates of offending once mentally ill offenders have been released. For the forensic psychiatric hospital setting, the focus on finding out why mentally disordered offenders do what they do provides the basis for the treatment or programme they are put on; for example, drug treatment programmes are not psychological therapies because a person does not have to be psychologically unwell to have an addiction. (Tresidder-Spivey, 2011) Supervision is not strong in the mental health system. Prisons use seclusion as the first resort of dealing with mentally ill offenders; however in the mental health system, it is used as the last resort; treatment is available first and foremost. This indicates that the mental health system is a better place for the mentally ill offenders because it aims to treat the mentally ill rather than lock them up. The effectiveness of Grendon prison indicates that the therapeutic setting may be the best option for mentally ill offenders in that it gives them the opportunity to treat the behaviour that caused them to commit the crime initially.
The post-modern view that there is no one truth is used with relation to the argument of which setting is most suited to the mentally disordered offender; in that the forensic mental health services are trying to find genetic links to mental health and offending; so that the mentally disordered offender does not get sent to prison, and is treated within forensic services. Here the question is raised of whether we are trying to excuse their responsibility of the crime. This links in with the labelling approach; the idea that mental illness is a social construct, afforded to us by society and that individual behaviours become socially defined and labelled in accordance to social norms and values. Scheff (1966) also argued that society has a huge part to play in labelling someone as mentally ill. “..Scheff argued that behaviour considered symptomatic of mental illness was best viewed as a form of deviance and stable or chronic mental illness as a social role.” (Busfield, 1988) In the mental health system, there is no obligation under patients to take medication.. In prisons, medication is used as a therapeutic tool; it is used double times more than in forensic mental health settings. For the mentally ill offender in prisons, they are only offered medicine. It doesn’t go further than that. Sleep deprivation is used as a form of torture in many practices; furthermore, people with mental illnesses such as depression are usually deprived of sleep meaning that if people with such illnesses are in prison, they cannot be treated. This then poses the question of whether prisons are creating mental illnesses among prisoners. If the mental illness comes before someone is sentenced to a prison sentence; then in theory they should not be in the prison system; rather the forensic mental health system. If it comes after; then it is necessary to look at what is being done to deal with mental illness in the prison setting. The forensic psychiatric hospital setting is seen as benevolent because it offers the treatment and care mentally disordered offenders need to control their behaviour through therapy. (Tresidder-Spivey, 2011) Questions are raised about whether or not you can give therapy in a non-therapeutic setting. A debate surrounding the case for sentencing mentally disordered offenders to prison rather than a forensic psychiatric setting lies in the argument of whether or not therapies can be put into place in prison and if they can be used by prison officers. It requires a lot of time and money to train officers to specialise in a prison-based therapeutic environment; which is why there is only one successful specialist prison, Grendon, in the whole of Europe. The Home Office Circular 66/90 made it government policy that “wherever possible mentally disordered offenders should receive care and treatment from the health and social services.” (Home Office, 1990) Bean (2001) argued that this particular circular had blurred the differences between patients; in that one group and the offenders and one group are not. It has also paved way for unnecessary conflict between the psychiatric services and the criminal justice system. “Criminal justice system was seen as presumptively bad for the mentally disordered, while the psychiatric system was presumptively good.” (Bean, 2001, p. 151)

REFERENCES
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References: Bartlett, A. and McGauley (2009). Forensic Mental Health: Concepts, systems, and practice. Oxford. Oxford University Publisher Bean, P Blanchard, B. (2010) Week 42 & 43: Punishment: reductivist justifications of punishment [Online]. Available at http://breo.beds.ac.uk (Accessed 27 January 2010 Bluglass, R Busfield, J. (1988) ‘Mental Illness as Social Product or Social Construct: a Contradiction in Feminists ' Arguments?’ Sociology of Health and Illness, 10 (4) pp. 521-542. Clarke, A Fennell, P. (1991) ‘Diversion of mentally disordered offenders from custody.’ The Criminal Law Review May: pp.333-348 Foucault, M Home Office (1990) Provisions for the Mentally Disordered Offender. Circular 66/90 Jones, K Jones, R. M. (2003) Mental Health Act 1983 Manual London: Sweet and Maxwell. Morris, M. (2004) Dangerous and Severe – Process, Programme and Person: Grendon’s Work London: Jessica Kingsley Publishers Nettleton, S Prins, H. (1999) Will they do it again? Risk Assessment and Management in Criminal Justice and Psychiatry London and New York: Routledge Rogers, A Shaw, J. Baker, D. Hunt, I.M, Moloney, A. and Appleby, L. (2004) ‘Suicide by Prisoners: National Clinical Survey.’ British Journal of Psychiatry 184: pp. 263-267 Soothill, K., Rogers, P Szasz, T. (1970) Ideology and Insanity USA: Calder & Boyars Szasz, T Szasz, T. (1997) The Manufacture of Madness: a Comparative Study of the Inquisition and the Mental Health Movement Syracuse: Syracuse University Press. Szasz, T Towl, G. J (2006) Psychological Research in Prisons Oxford: Blackwell Publishing Ltd Webb, D Fee, D. (2000) Pathology and the Postmodern: Mental Illness as Discourse and Experience California: Sage Publications