The MHA and mentally disordered offenders

The MHA is the statutory basis for the diversion of mentally disordered offenders into hospital for treatment. Such diversion may take place before or after conviction or sentencing. It includes hospital orders applicable by the courts and a power for the Secretary of State for Health and Social Care to allow transfer from prison to hospital. Patients can be made subject to restrictions on the basis of public protection, meaning that the Secretary of State (rather than Tribunal) retains a veto over granting of leave and clinical decisions to discharge. When discharged, people under restrictive orders may be subject to set conditions and monitoring by the Ministry of Justice. They can also be recalled to hospital if certain criteria are met.

On our monitoring reviews and visits to forensic hospital wards, we speak to patients subject to these powers, as well as having meetings with relatives, staff and advocates. We also maintain wider, policy-level engagement with regional commissioning bodies, professional bodies and the Ministry of Justice to keep the working of the MHA under review.

Every year there are roughly 1,500 admissions of restricted patients, with this figure being constant over the last decade. The population of restricted patients has been growing steadily over this century (figure 3). Movement through the system can be delayed by lack of bed availability.

In November 2021, we were signatory to a joint thematic inspection report published by Her Majesty’s Inspectorate of Probation, looking at the criminal justice journey for individuals with mental disorders. This found that while assessment and diversion services have improved, communication across the criminal justice system is patchy. It also highlighted a lack of good-quality mental health care and unacceptable delays in accessing available care. This has worsened during the pandemic with the retraction of many community services.

While further expansion of the forensic sector may be necessary to deal with patient volume, the further development of forensic community services may provide an appropriate less restrictive alternative to hospital care for an increasing number of future patients. There may also be a need for investment in case management at commissioning level, so that existing resources are used more efficiently and in the least restrictive manner possible.

In our response to the White Paper ‘Reforming the Mental Health Act’, we urged the government to be careful that proposed higher thresholds for civil detention do not have the unintended consequence of pushing more mentally disordered people into the criminal justice system and the forensic sector.

Transfers from prison to hospital

The Department of Health’s ‘Offender Mental Health Care Pathway’, published in January 2005, aimed to realise an ambition that no-one with acute severe mental illness should be in prison. In the ensuing years there have been considerable improvements in prison health care, and some rise in the population of patients in hospital following transfer from prison (figure 4), but that key ambition seems as far away as ever.

During the pandemic we heard concerns from professionals and patients that mentally disordered offenders were not getting the mental health care they needed because lockdowns were causing delays in transfers. While there was evidence of delays for some inter-hospital transfers, data from the Ministry of Justice suggests that transfers from prison or immigration removal centres continued to be managed at similar levels as before the pandemic (figure 5).

It is welcome that in its review of the MHA, the government has accepted the need to speed up the process of transfer from prison and immigration removal centres to mental health inpatient settings. There can be long delays in the process currently, and some risk that services delay or stagger assessments to avoid breaching current guidelines.

As Black or Black British people are overrepresented both in prison and in secure mental health services, this group is likely to be disproportionately affected by delays in transfer from prison to hospital, or in failure to recognise the need for assessment for possible transfer.

It is not clear whether there are enough beds in the appropriate locations and at the required level of security to enable a statutory time limit for transfers to be effective. We are aware of bottlenecks in secure services, which compound the problem of timely transfer. Also, there are systemic issues in the prison system in terms of lack of suitably qualified and experienced personnel who can identify prisoners who are experiencing mental health problems and refer them on to healthcare resources.

We welcome NHS England and NHS Improvement’s actions in commissioning the Centre for Mental Health to conduct a review of mental health care in prisons. Following publication of the initial report, ‘The future of prison mental health care in England’, in June 2021, we look forward to the proposed mental health needs analysis across the English prison estate. We hope that this study will be able to quantify the unmet needs in prison.

One question for this review should be whether, in terms of admission to hospital for acute mental health treatment, there is parity between healthcare in prison and the general community. We are concerned that there may not be. If the effective threshold for hospital care is much higher for prisoners than the rest of the population, prisoners may be left to become more and more ill before an effective intervention, which risks inhumane care and will make subsequent interventions all the more difficult.

Returning patients to prison after hospital treatment

Patients who are transferred from prison under a restriction order may be returned there after treatment, provided they are still within their sentence tariff or still subject to remand. In 2020, 306 patients were returned to prison in this way (figure 6).

There can be a number of reasons for such returns to prison. In most cases, it will be because the hospital responsible clinician applies to the Secretary of State on the grounds that treatment for mental disorder in hospital is no longer necessary. Sometimes it will be because the patient has challenged the security of the mental health setting, for example by absconding from leave, or because the patient is refusing to engage with treatment. In its ‘Guidance on Restricted Patients and The Mental Health Act, the Parole Board reported that it is ‘not uncommon, especially in the case of personality disorder’, that patients have disengaged from treatment in hospital and request remission to prison themselves.

Even considering such cases of non-compliance or treatment failure, it is very concerning that arrangements for continued support and aftercare in prison may be available for only a minority of those returned there.

Research published in 2020 on service transitions, interventions and care pathways found that less than one in five patients returned to prison after transfer to hospital under the MHA had care-plans in place under the Care Programme Approach (CPA). This is despite the fact that they were eligible for CPA, and that services reported prisoners on CPA did better than those who were not.

Although CPA is to be replaced across most mental health services (see section on care planning), the government has stated that it should continue to be used in prisons, and will be included within the planned prison mental health specification review during 2021/22. In its position statement on the care programme approach, NHS England and NHS Improvement also acknowledged that the CPA is used inconsistently in custodial health and justice settings. Transfer to hospital under the MHA is, of course, the clearest possible marker of eligibility under the terms of the CPA and it is vital what replaces this in forensic hospital services should instigate and align with adequate aftercare arrangements for patients returning to prison.

Sentencing to appropriate settings

In Her Majesty’s Inspectorate of Probation’s joint thematic review of criminal justice services, judges said that they were frustrated that there were so many individuals with mental health issues in the criminal justice system who they felt should not be there. In some cases, information provided to support sentencing lacked detail and analysis of mental health. This meant that opportunities to send offenders to hospital under MHA powers were lost.

We welcome the introduction of new sentencing guidelines for mentally disordered offenders, published in October 2020. In particular, we welcome the fact that the guidelines recognise the need to consider the implications of culture, ethnicity, and gender when sentencing offenders with mental health needs.

We are aware that there are a significant number of people in prison with mental disorders and impairments, including autism, who could benefit from being moved from prison into the community. The successful appeal of R v Cleland in July 2020 is an example of a case where neurodiversity was overlooked at the point of trial.

New guidelines from the Sentencing Council on sentencing offenders with mental disorders, developmental disorders, or neurological impairments highlight the need to consider what community options are available under the MHA, such as probation with mental health treatment or guardianship. We think that this option is not being used enough for people with a learning disability and autistic people because of a lack of suitable alternatives in the community. We discuss the lack of community options in more detail in our section on Independent Care (Education) and Treatment reviews.

The government has also recognised the unmet needs for neurodivergent offenders. In its 2020 White Paper, ‘A Smarter Approach to Sentencing’, it has committed to carrying out a national call for evidence to obtain a clearer picture of prevalence and the current national provision to support offenders with neurodivergent conditions in the criminal justice system. As part of this exercise, we urge the government to include questions of diversion from the criminal justice system.

Conditional discharge and continued deprivation of liberty

We recognise that there is a small group of patients who on discharge from hospital require continuous supervision in order to protect the public. Following the MM judgment of 2018, restricted patients cannot be conditionally discharged from hospital to continued deprivation of liberty (for example in a residential social care placement) if they have mental capacity to agree to such arrangements, but may be so discharged if they lack capacity to give or withhold consent.

The solution to date has been to ‘recall’ such patients (albeit not actually requiring their physical return to hospital) whilst granting them extended leave of absence from hospital. There may be little objective difference between the use of conditional discharge or extended leave in these circumstances, but there is an important subjective difference for patients being granted leave rather than discharged that is recognised in paragraph 27.11 of the MHA Code of Practice. Furthermore, such leave arrangements are difficult to reconcile with the MHA’s basic criterion that its powers are limited to detention in a hospital. This has led the high court to invoke section 3 of the Human Rights Act to declare that where it is necessary to do so in order to avoid a breach of a patient's Convention rights, that criterion of hospital as a place of detention does not apply.

We welcome proposals to address the current position by creating an explicit ‘supervised discharge’ power. However, this should not become a default discharge route for restricted patients and should be used only when strictly necessary. The grounds for use of ‘supervised discharge’ needs to be clearly drafted to ensure that it is limited to people who would not be able to leave hospital without this new measure.

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