Legal and human rights issues in the use of electronic monitoring (using GPS 'tracking' technology) in forensic mental health settings in the UK

Electronic monitoring (EM) of individuals has been used by the criminal justice system for the past thirty years, and in the UK, use is on the increase. Its use has been justified as an alternative to prison to reduce recidivism and allowing early release of prisoners, however, the evidence base for this remains mixed. In 2010, it was employed for the first time in a forensic psychiatry setting. A study investigating the effects of EM on leave episodes concluded that EM may improve the speed of patient progress and reduce the length of admission, leading to reduced costs and increased public safety. However, the intervention generated considerable controversy and sparked discussion about ethical concerns. Here, we consider specifically legal and human rights issues that emerge from use of EM in forensic healthcare settings, scrutinising its use in the context of the Mental Health Act and the Human Rights Act. We conclude that EM is legal and justifiable, providing it is used judiciously and with due consideration of concerns for the individual and the given context.

Liaison and diversion services in South East London: Referral patterns over a 25-year period

Criminal justice liaison and diversion services identify people with mental health needs and ensure they receive appropriate support. We describe a 25-year period of one such service that deals with a population of 864,540 in South East London that was set up in 1991. We used data from three time periods. A diagnosis of a mental illness was recorded in 70.0-80.3% of court liaison and diversion referrals. The proportion receiving a hospital order declined from 15.4% in 1991/1992 to 1.1% in 2015/2016; 54/199 (27.1%) of referrals to the police liaison and diversion service were detained in hospital. Although the service is designed to support any individual with a mental health issue, these results suggest that it has dealt mainly with people who have severe mental illness. Further research is required to understand how best to benefit a wider range of people with mental health issues who attend the lower (Magistrates') courts, and whether screening for mental disorders can be applied in liaison and diversion settings to aid the implementation of national policy. We also need to understand how disposal decisions are made, and which are most effective.

Beyond equivalence: prisoners' right to health

Prisons have high levels of psychiatric morbidity and function as mental illness recognition centres. Their healthcare wings are not hospitals and timely transfers to hospital are often unavailable. The United Nations' right to the highest attainable standard of health is assessed according to whether healthcare services are available, accessible, acceptable and of good quality (AAAQ). It is proposed that the AAAQ framework goes beyond the principle of equivalence of care and provides a more sophisticated measure for exploring prison healthcare.

An integrated service for mentally disordered offenders

In recent years there has been increasing concern about the plight of the mentally ill in prisons, particularly those on remand. The 1976 Bail Act gives everyone the right to unconditional bail but mentally disordered offenders find themselves disadvantaged in that their right to bail can be set aside not only because of the gravity of the alleged offence but also for reasons consequent to their mental illness. These include lack of community ties, their own protection or most commonly for the preparation of psychiatric reports. The mentally disordered may thus be remanded in custody even if the charge against them is minor or not punishable by imprisonment.

Escapes and absconding from secure psychiatric units

A prominent radio news programme reported on escapes from secure psychiatric units in the UK and linked that with subsequent offending by psychiatric patients. The report cited did not distinguish between escapes and absconding but, it is argued here, these are very different activities. The acceptable rate both for escapes and absconding from secure psychiatric units is not defined. A certain level of absconding is a consequence of the therapeutic use of leave, which, as part of rehabilitation, is likely to be linked with a reduced reoffending rate post-discharge.

Section 48: an underused provision?

Section 48 of the Mental Health Act, 1983 (MHA) permits the Secretary of State to authorise the removal to hospital of an unsentenced prisoner who is ‘suffering from mental illness or severe mental impairment of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and that he is in urgent need of such treatment’. (Mental Health Act, 1983). Its common usage in the past has been in transfers of unsentenced prisoners from prison to hospital.

FREDA: a human rights-based approach to healthcare

The introduction of the Human Rights Act 1998 in the UK has not led to widespread knowledge and understanding in patient and carer groups, healthcare professionals or at an organisational level. This knowledge deficit has been recognised by government bodies and other agencies, which has led to the introduction of a bottom-up human rights-based approach that can be used by individuals and organisations alike in everyday practice. It avoids the need to have technical knowledge of the Human Rights Act and associated case law and is based upon concepts that underpin all the articles of the Act. The human rights-based approach is the process by which human rights can be protected by adherence to underlying core values of fairness, respect, equality, dignity and autonomy, or FREDA.

A gilded cage is still a cage: Cheshire West widens 'deprivation of liberty'

The Supreme Court's recent judgment in Cheshire West has clarified, and broadened, the legal definition of deprivation of liberty, with the new definition reflecting the fact that human rights apply to everyone in the same way. The widely criticised Deprivation of Liberty Safeguards need to be replaced: recommendations for reform are set out.

Influencing the care pathway for prisoners with acute mental illness

BACKGROUND

Despite improved mental health services in prisons in England and Wales, there are often delays in transferring acutely mentally ill prisoners to hospital, particularly in the London area.

AIM

To establish whether clinical pathway interventions can reduce such transfer delays.

METHODS

Two clinical pathway interventions - one based in a medium secure forensic hospital and the other in a remand prison (pre-trial/sentence) - were independently introduced to manage referrals of prisoners with acute mental illness in London, UK. Time taken to transfer to hospital was measured for each and compared with the best available estimates for time to transfer prior to the new pathways.

RESULTS

Both interventions produced significant reductions in prison to hospital transfer times.

CONCLUSIONS/IMPLICATIONS FOR PRACTISE

The nature of the projects precluded ideal research design, but despite small sample sizes, provision of modestly funded small but dedicated elements of service to target the specified problem of transfer to hospital delays showed a significant advantage for such provision, whether hospital or prison based, psychiatrist or nurse led. Further research is now required to examine the whole pathway. More secure psychiatric beds may be required, at least in the short term, to support diversion policies and enable compliance with national policy directive, and to establish whether redesigned pathways can enhance treatment and behavioural outcomes for acutely mentally ill prisoners on a larger scale.

Variations in prison mental health services in England and Wales

In responding to high levels of psychiatric morbidity amongst prisoners and recognising earlier poor quality prison mental health care, prison mental health in-reach teams have been established in England and Wales over the last decade. They are mostly provided by the National Health Service (NHS), which provides the majority of UK healthcare services. Over the same period, the prison population has grown to record levels, such that prisons in England and Wales now contain almost 90,000 of the world's overall prison population of over 10 million people (roughly the size of Paris or Istanbul). This study provides an overview of mental health in-reach services in prisons in England and Wales, including variations between them, through a telephone survey of senior staff in all prisons and young offender institutions in England and Wales. 73% of prisons took part; of them 13% had no in-reach team at all (usually low security establishments) and the majority of services were run by NHS teams, usually according to a generic community mental health team (CMHT) model rather than other specialist models. Team size was unrelated to prison size. Each nurse covered around 500 prisoners, each doctor over 3700. Many provided few or no healthcare cells and 24-h psychiatric cover (including on-call cover) was uncommon. Despite developments in recent years, mental health in-reach services still fall short of community equivalence and there is wide variation in service arrangements that cannot be explained by prison size or function. The aim of community equivalence has not yet been reached in prison healthcare and a more sophisticated measure of service improvement and standardisation would now be useful to drive and monitor future development.

Asserting prisoners' right to health: progressing beyond equivalence

The concept of the "right to health," regardless of a person's legal status, is a guiding force in establishing adequate standards of health care for all, including prisoners with mental illness. Prison health care in the United States, however, often falls below acceptable minimum standards. In the United Kingdom, the notion of equivalence has been the main driving force in improving prison mental health care. Although improvements have been made over the past ten years, demand for services continues to outstrip supply, as in the U.S. prison system. In both prison systems, prisoners often present with complex and multiple needs, much greater than those found in community samples. Even mental health care equivalent to that provided in the community falls significantly short of what is required. Further improvements to prison health care, therefore, remain a priority, and a more suitable model needs to be established and implemented. The authors propose an assertive application of a person's right to health with a well-defined framework for health care that is available, accessible, acceptable, and of good quality (AAAQ). The authors explore how the AAAQ framework can move beyond minimal or equivalent standards to deal with complex prison structures, meet health care needs, and measure progress more effectively. The AAAQ framework could lead to more equitable standards of health care that can be applied to international settings.

Commentary: UK perspective on competency to stand trial

This commentary offers a perspective from another common law jurisdiction, specifically the law in England and Wales, where competency to stand trial on a criminal charge is known as fitness to plead. The commentary begins with a discussion on the principle of proportionality evident in health care decisions by way of comparison with the topic in the criminal arena. Fitness to plead is an historical legal concept and employs an intellectual test that has evolved very little since its appearance in case law. There have been amendments, through statute, to its procedure and outcomes following a determination of being unfit to plead. However, competency to stand trial in England and Wales remains a more marginal issue than in the United States. Recent developments in domestic and European jurisprudence have been related to consideration of the requirements for a fair trial, driven by the demands of the European Convention on Human Rights.

The Belmarsh Scheme. A prospective study of the transfer of mentally disordered remand prisoners from prison to psychiatric units

BACKGROUND

Contracting in psychiatric services from the NHS into prisons has been advocated to improve the care of the mentally disordered in custody. The Belmarsh Scheme is such a service.

METHOD

A prospective study investigating the characteristics of a six-month cohort of remand prisoners requiring transfer to hospital and evaluating the service's effectiveness.

RESULTS

Fifty-three (4.3%; 95% CL 3.2% to 5.6%) of the 1229 new remands required transfer to hospital; all were accepted. The transfer group contained a higher proportion of black men (51%) than all other remands (30%) (difference 21%; 95% CL 8% to 35%, P = 0.002). Transfer times were lower than those reported for a neighbouring prison.

CONCLUSIONS

The Belmarsh Scheme secured in-patient psychiatric care rapidly for all those identified as needing it.

Heat shock protein (hsx70) mRNA expression in human brain: effects of neurodegenerative disease and agonal state

Heat shock proteins (hsps) are involved in the response by cells to stress including hyperthermia, hypoxia and injury. Previous work has demonstrated expression of messenger RNA (mRNA) encoding 70 kDa hsps (hsp70) in animal brain in response to stimuli such as these. We have used in situ hybridization histochemistry to assess the distribution and quantity of a specific hsp70 (called hsx70) mRNA in frontal cortex and cerebellum from normal and demented patients whose pre-mortem course had been documented. In cortex, hsx70 mRNA was concentrated over pia mater and glia but was also present over neurons; in cerebellum, hsx70 mRNA was prominent over granule cells but absent from Purkinje cells. Detection of hsx70 mRNA did not correlate with pre-mortem factors such as pyrexia or coma. Increased hsx70 mRNA was found in frontal cortex white matter in Alzheimer's disease and in a mixed group of other neurodegenerative disorders. No changes occurred in cerebellum. The data provide further evidence for altered hsp gene expression in dementia, and support the existence of a stress response occurring in brains affected by such diseases.