In 1939, Professor Lionel Penrose proposed the hypothesis that there was a negative correlation between the number of psychiatric beds in a country and its prison population. The fewer psychiatric inpatient places, the more people will end up incarcerated in prison, albeit with a timelag after the decommissioning of the beds which could be as great as 10 years. Recent research led by the University of Oxford (no less) indicates this hypothesis still holds true in the early 21st century and it recommends more investment in community care.
There is other research from Germany and Switzerland which also supports the theory and in case it needs pointing out, once those people arrive in prison, some of them will just need transferring back to the hospital estate for care, albeit at much higher cost because secure hospital care (typically required for those embroiled within the criminal justice system) is much more expensive than non-secure care (typically, for those who are not).
Meanwhile, in the early 2020s, we are seeing the rumblings begin of noises about mental health and criminal justice which we also saw in the early 2000s and which led eventually to the Bradley Report. Last year, a joint thematic inspection was published by criminal justice inspectorates and, notably, the Care Quality Commission. They found “serious failings” in provision. In a very recent editorial in the British Medical Journal, eminent psychiatrists including forensic psychiatrist Professor Jeremy COID have stated the mental health provision to the criminal justice system is, in their words, “failing” and have called for a national review to reverse the decline.
HISTORY AND CONCEPTION
Elsewhere on this blog, you will see me speculating that we see major national reviews of mental health and criminal justice approximately every 18yrs or so. Given the Bradley Report was published in 2009, I therefore estimated 2027 may see our next one – looking backwards, we saw the Reed Report in 1992, the Butler Report in 1975 and the Percy Report in 1957. (Hat-tip to a friend whos knows who they are, prompting my memory about Butler – couldn’t remember the name of the da end thing for toffee!) I recently wondered whether factors including austerity politics and global pandemics may accelerate the next one we see, but given there’s five years until my deadline(!) and they usually take a few years, rumblings like these may mean we’re still roughly on track.
I repeat my view that Professor Jill Peay’s 2010 book Mental Health and Crime is the best available on the topic, albeit there are others and I also love Herschel Prins older text, Offenders, Deviants or Patients? — they both straddle much of the academic research in both domains and outlining why the conceptual basis for our thinking about this interface is flawed. We will, I predict, keep seeing a cycle of the type I’ve described until we decide what problem we’re actually trying to fix and come to give effect to the realisation you cannot police your way out of it.
The problem here is not the criminal justice system or the support it does or doesn’t receive – it is the fundamental over-reliance on the criminal justice (and emergency) systems as a proxy for mental health care of any and all varieties. And which agency stands at the nexus of both criminal justice and emergency systems – the police. I have now been formally out of this area of business for 3yrs and nothing I see convinces me that we are reducing our reliance on policing, criminal justice or emergency systems any time soon. You can support those systems as much as you like, you’ll still be attempting to police your way out of a problem that is best solved without police involvement in the first place.
CAUSES AND CONSEQUENCES
That’s why, Liaison and Diversion and Street Triage schemes are, in my view, somewhat flawed conceptually – they are focussed on addressing the consequences of the problem, not the cause of it and by so doing, I’m also worried the make the actual problem worse, not better. I’ve often known of situations in which care providers actively push people towards the police and the justice system, not as a safety net, but as a care mechanisms. It’s branded on occasion as Therapeutic Jurisprudence (whatever that means) and I’ve known mental health care be denied unless someone is prosecuted (MS v UK, where clinicians sought prosecution for something over which which there was zero evidence for criminal law purposes).
I’m sure plenty of criminal jsutice professionals have their examples but I ask this: if a drink-driver crashed a car and caused injury not just to themselves but to others as well, would the health system demand prosecution as a condition of care for that driver? – they wouldn’t, no. There would, I suspect, be a scandal if that were proposed even if there were evidence of potential guilt – the right to access healthcare exists independently of issues around criminal liability for behaviour, especially where such conduct hasn’t yet been proven in a court. I’ll go further on this point: the law expressly allows doctors to obstruct the police from securing evidence of alcohol consumption in circumstances where it would be deleterious to that drivers health – s11 Road Traffic Act.
But there are other practical reasons why L&D and ST may be problematic and these issues could be addressed even if only to ensure that the consequences were better handled, whilst we decide if we’re going to address the cause – be available at the point of need. In a recent discussion with a custody officer, he told me the biggest frustration with L&D is the fact they are simply not there when many people are arrested. Most L&D schemes work extended office hours, finishing around 8pm or 10pm, returning at 8am. Most people in the UK are arrested between 5pm and 3am so you’ll instantly see the problem if you remember what Lord Bradley himself pointed out in his report: that one primary requirement of L&D is screening people (at or soon after the point of entry), to ensure people are flagged ASAP and their needs accommodated.
WE’VE ALL BEEN HERE BEFORE
I could keep going … suffice to say, it’s all been said before. We’ve already deviated so far away from delivering on the specific intentions of these noble reports (“do something!”) that, oddly enough, it hasn’t really worked for us and it’s not all about the politics and pandemics. But obviously, we must now must add that to the mix so here we go again, the first calls from senior people that I’ve heard for some while — for a national review of mental health and criminal justice 13yrs after the last one. If it is commissioned in the next few years and it lands around 2028, I’ll just smile wryly and go for a long charity bike ride to raise some cash for those embroiled within in it. I probably need to do that anyway.
We also probably need to consider that the objectives we’ve given our criminal justice and our mental health systems are to a degree opposed or contradictory. Achievement of one can come at the cost of achieving the other – this is why ever-present calls for improved partnerships need to remember that partnerships is about achieving compromise, to strike a balance. Both domains are interested in health & safety, fundamentally, but not the same kind and I’ve never, ever seen that really explored in any depth in any of the reports we’ve seen on this stuff.
I’ve often asked what problem are we trying to solve? – perhaps the follow up or better question is, and something I may blog about later in the year, is to ask what balance are we trying to strike?! … whichever of those questions you prefer, the answer needs to precise and high-resolution. “Do something!” is still a refrain we hear and it’s not enough, in the end, because it risks making things worse.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2022
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – www.legislation.gov.uk
Mental Health Cop 