Pub Quiz: what’s the longest period of time someone can be held in a Mental Health Act 1983 “Place of Safety”? Answer to follow within the post, but I’ll help you out whilst you scratch your head: the answer is neither 24hrs nor 36hrs!
A new report has been published this week by His Majesty’s Inspectorate of Prisons on the topic of “delays in the transfer of mentally unwell prisoners“. It highlights what you will think it does, based on its title, so you may want to spare yourself the 45-page read but if you work anywhere near the detail of these issues, it is worth the effort. But firstly, have you heard of the Penrose effect? – this is the idea that if you reduce your available number of inpatient psychiatric beds, a number of years later you will find yourself imprisoning a roughly corresponding number of seriously mentally ill people in your prison system.
This theory was first offered up in the 1930s by Professor Lionel Penrose who observed a negative correlation between the two things. His hypothesis has been re-examined in other countries and re-tested, including in recent years – it still appears to hold out. So given we know the number of inpatient psychiatric beds in England fell by 25% between 2011 and 2021, we know there will be an impact on prisons a while down the line.
Anyway, there were eight key concerns for HMIP –
- Only 15% of patients in their sample were transferred within 28 days and an average 85 day. One example involved 462 days.
- Despite divert services in police stations and courts, they continued to find people in prison for their own protection – prison was being used as an alternative to a hospital bed even when the need for an admission was evident before imprisonment.
- There were undue delays for two-thirds of the prisoners for transfer.
- There was little accountability for long waiting times – there were no comprehensive national data on the number of patients awaiting transfer under the Mental Health Act and their waiting times.
- An urgent referral as a result of rapid deterioration in did not guarantee prompt transfer, despite guidelines saying it should.
- The outcomes for patients were not central to the process.
- Patients, other prisoners and staff were coming to harm during the time it took to transfer patients. Patients deteriorated, staff suffered assaults and the effect of supporting patients with a level of need for which they had not been trained.
- Very unwell patients were still being released waiting for transfers under the Mental Health Act, meaning they were detained at the gate on release by community mental health teams.
And on point 8, I’d add – “and by the police”, because we know the police have been requested by prisons or community mental health teams to attend prisons and detain someone under s136 MHA and remove them to a Place of Safety for assessment. I’m especially interested in or concerned by points 1, 4, 7 and 8.
REMAND AND RELEASE
Prisons obviously exist to receive prisoners who are sentenced by the courts for criminal offences after conviction, or to house people on remand pending trial – this is most of what they do. Most remanded prisoners are there, for example, because they have a history of not showing up to court, or intimidating witnesses to prevent them giving evidence, or because they are likely to offend whilst on bail for that offence. However occasionally, some prisoners are remanded purely for their own safety – because of their mental health condition. This is something the report calls out and something we know the Prison Service has long been concerned about. It was subject of consideration during the Mental Health Act review by Professor Sir Simon Wessely and it featured in the draft Mental Health Bill which many still wish to see introduced. HMIP is obviously pushing this point – it must be horrific to require care or even hospital admission and then to find yourself remanded to prison because you were prosecuted for an offence and only remanded because there was no prior intervention to ensure your safety and wellbeing.
As if prison will help with that.
The gate arrest thing has long intrigued me: some years back, when I worked at the College of Policing, there was an attempt by one prison to establish a protocol with their local police and the mental health trust about a process to request s136 detention at the gate of a prison where prisoners are being released before a transfer could occur. Now in all fairness to everyone, prisoners can be unexpectedly and suddenly released on occasion and I’m not saying it will never be necessary – but it shouldn’t be normalised as a process. For example, one prisoner on remand after being charged was thought to be very unwell and a request had been made to transfer him to hospital. This had been authorised but there was no bed and the waiting game of the type highlighted by this report began. Before a bed was found, a witness decided not to give evidence and a review of evidence by the Crown Prosecution Service saw the case against him dropped – they then contacted the prison to say the remanded prisoner should be released immediately because the case was discontinued.
The prison service were now obliged to release him and because of those ongoing concerns about his mental health, a gate assessment was requested and because that proved difficult to organise at very short notice, police were requested. The offence charged had involved one of serious violence and the evidential review was about a key witness declining to give evidence because of potential repercussions – so whilst he wasn’t going to be convicted of anything, it was conceivable he committed a very serious, very violent offence and that must be relevant to risk assessment of what might happen if he were not detained at the gate, whether by mental health or police services. It’s not ideal, but it’s not unlawful either and in rare circumstances where you cannot have planned ahead, it may be thought unavoidable.
RESTRICTED PATIENTS
Those who’ve read the blog for a while will have noted a number of articles which mention patients sentenced to hospital by the criminal courts, under what is known as a ‘restricted hospital order‘. I’ve learned something fascinating from this HMIP report which I’d not previously thought about, quite honestly – that most ‘restricted’ patients in secure hospitals are not those sentenced by the courts to orders involving restriction – the s37/41 and s45A orders. Most of them are patients who were transferred from the prison estate to hospital with restrictions. Turns out restricted hospital order patients account for just 14% of overall restricted patients. Most restricted patients are prison transfers, of the kind highlight in the report – and this lends further weight to the Penrose argument: that we’re filling prisons up with people who probably required hospital at an earlier stage and then just having to transfer them there anyway.
In case you’re not familiar with prison transfers, someone in prison can be transferred to hospital under s47 MHA (sentenced prisoners) or s48 MHA (remanded prisoners). If that prisoner is
- 63% restricted transfers – 47/48/49
- 14% restricted hospital orders.
- 4% conditional discharge recalls.
- 19% other … anybody’s guess, no idea but I suspect this might include s45A MHA.
Of course what this doesn’t take account of is the pathologising impact of prison itself: whether or not someone has a history of mental health problems, we know the process of being criminalised by the police, courts and prisons can lead to the development of acute problems or the aggravation of minor problems to such levels.
PLACE OF SAFETY
I was interested in the report’s frequent reference to the concept of a “Place of Safety” because of how it’s used. As well as just being a group of three words in the English language which speak for themselves, it is also a concept in the Mental Health Act 1983 and the report does talk about prison being a Place of Safety legally. Well, it’s only legally in the sense of it being used as the Mental Health Act outlines and those are very limited and specific circumstances. Many who’ve read this blog for years will know the phrase is most often used to mean a location where someone is taken after police use of s136 or s135(1) powers under the Act and a Place of Safety is defined in s135(6) MHA for those purposes. That’s not what this means.
The report begins with an introduction from the Chief Inspector of Prisons —
“When we think of prisons, we assume they are full of those who have committed crimes for which they are being held accountable … yet they remain a legal ‘place of safety’ which can be used when there is no suitable provision in the community. Our prisons continue to hold a number of very seriously mentally unwell men and women.”
Plenty wrong with this, to be fair! – but it needs to be seen against the background of the fact the final observation is absolutely spot on! We’re housing a lot of serious mentally unwell people in prison.
Section 55 MHA covers the phrase Place of Safety in its legal sense for prisons. It relates only to situations where the criminal courts wish to hospitalise someone by use of a hospital order or interim hospital order and they cannot immediately do so for the want of an inpatient bed – an all too common problem to which this entire HMIP report is addressed. Where the court needs to do so, they can remand a person to prison as a Place of Safety pending that hospital bed being found, but only for up to 28 days. So there’s the answer to your exam question! – and this is outlined in sections 37(4) for hospital orders, 38(4) MHA for interim hospital orders and s45A(5) MHA for hyrbid orders. For the avoidance of all doubt: if a s37 hospital order is further ‘restricted’ by use of s41 MHA (to make it a restricted hospital order), the point about remand to prison as a Place of Safety is unchanged and can still argue if needed.
The Howard League for Penal Reform has responded to this report and called for the Government to resurrect the Mental Health Bill which was omitted from the last King’s Speech. The Bill proposed to change the law: banning the use of prisons as a Place of Safety pending hospital admissions from courts, banning the use of prisons as a place of remand purely for mental health reasons and also altering the law to enable Magistrates in some circumstances to remand unwell defendants to hospital under s35/36 of the MHA. (This last point is largely unaddressed in the report, but it’s something I feel strongly about and managed to get included in the Mental Health Act review in 2018.)
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown, 2024
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.
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