The Prison Reform Trust (PRT) is an independent UK charity working to create a just, humane and effective penal system. We do this by inquiring into the workings of the system; informing prisoners, staff and the wider public; and by influencing Parliament, government and officials towards reform. The Prison Reform Trust provides the secretariat to the All Party Parliamentary Penal Affairs Group and has an advice and information service for people in prison.
The Prison Reform Trust's main objectives are:
The Prison Reform Trust welcomes the opportunity to provide evidence to the Joint Committee on the Draft Mental Health Bill. The Prison Reform Trust is not a health charity and does not have clinical expertise. We have restricted our response to questions where we feel we have competence to comment, relating to the experience of people with mental health needs in the criminal justice system.
What are your views on the proposed changes in the draft Bill concerning those who encounter the Mental Health Act through the criminal justice system? Will they see a change in the number of people being treated in those settings?
Prisons exist to meet society’s need to punish serious wrongdoing. Their use cannot be justified by a desire to treat people who are ill. Far from being a ‘place of safety’, prisons, even those that are well designed and run, are harmful to mental health and wellbeing. The use of prison to hold people pending a mental health assessment is cruel and inhumane.
We do not know how often prison places are currently used by courts to hold people on remand while they await a psychiatric assessment because courts only record the reasons for remand under the formal exclusions to the presumption of bail. However, a 2021 report by the justice inspectorates stated:
Despite the significant risks they posed to vulnerable individuals, prisons continued to be used as a place of safety from court. The scale of the issue was unclear as data was not collected and incidents were not reported centrally. However, during our inspection, we were made aware of one women’s prison where the problem was so frequent that the prison’s senior managers had recorded 24 incidents of their prison being used as a place of safety in the previous 12 months[1]
So we welcome the provisions in the draft Mental Health Bill that are designed to avoid the use of prison for people when concerns arise about their mental health. The ideal would be to arrange psychiatric assessments in the community (possibly under conditions imposed by the court). However, detention in a hospital may be necessary if the mental health need is severe. We welcome the amendment proposed in Section 42(2)(b) which will require courts to apply section 35 of the Mental Health Act to obtain a psychiatric assessment.
As to the potential impact on numbers, the absence of current data makes that impossible to quantify. For reasons we explain below, filling that gap in our knowledge is overdue and requires urgent attention.
What changes and additional support do you think will be needed to help professionals and the third sector implement the proposals effectively? Will additional staffing and resources be required?
Commenting on the misuse of prisons as a ‘place of safety’, the justice inspectorates’ report explains: “Mental health service providers told us that this practice was due to the lack of mental health inpatient beds nationally and the courts having no other options but to use prison.”[2]
Section 35 of the Mental Health Act requires courts to be satisfied that a place in a hospital can be found within seven days. Section 42(2)(b) will undoubtedly create a need for new mental health beds, and a similar concern arises over the provision of treatment and support which might form part of bail conditions for those not detained. Whether the amendments will reduce the misuse of prison to obtain assessments of mental health depends on the provision of new resources to meet the demand.
The review by Sir Simon Wessely explicitly recognises this link, stating that, “these powers are illusory if no bed is available and that is frequently the case.”[3]
So it is essential that the government should generate its best estimate of the numbers of cases likely to be affected by these provisions (which may require a discrete retrospective fact-finding exercise) in order adequately to resource their implementation.
In addition to new resources, policy guidance will be needed to clarify the government’s intentions. Otherwise, courts could continue to use other exclusions to deny bail while awaiting a psychiatric assessment. Guidance should state that Section 42(2)(b) will apply whenever concerns about someone’s mental health have been raised in court. It should also clarify that when a hospital placement cannot be achieved within seven days, courts are expected to bail the person and that remand to custody is not an option.[4]
The other provision in the bill on which we offer comment is the change in the time limit for transfers from prison to hospital under Section 47 from 14 to 28 days; and the complementary provision to start the time limit from the date of the referral rather than the assessment. A further welcome change proposed is to exclude ‘a shortage of hospital accommodation’ or ‘a shortage of hospital staff’ as reasons to justify an extension of the time limit. Taken together, the expected impact would be to expedite the transfer of seriously ill people from prisons to hospitals, an outcome the Prison Reform Trust would welcome.
However, the same note of caution over the resourcing of this change is required. Anticipating the probable demand created by these changes should be more straightforward, given the possibility of surveying historic experience of prison to hospital transfers and the delays they have encountered.
In summary, we welcome the intention of all these provisions in the draft bill, and the acknowledgement of the principle that prisons should never be used to compensate for a shortage of appropriate settings for treatment. But we are concerned that these provisions may never be brought into force unless new and discrete resources are provided to meet the demand they will create, and that the government has so far not carried out the analysis required to predict the scale of that new demand. We recommend that the draft bill should require the government to set out its resourcing plan for these new provisions and also contains a permanent requirement to report annually to parliament on their operation.
13 September 2022
[1] CJJI, CQC and HIW (2021) A joint thematic inspection of the criminal justice journey for individuals with mental health needs and disorders. Available at https://www.justiceinspectorates.gov.uk/cjji/wp-content/uploads/sites/2/2021/11/Mental-health-joint-thematic-report.pdf
[2] Ibid.
[3] Independent Review of the Mental Health Act 1983 (2018), Final report: modernising the Mental Health Act: increasing choice, reducing compulsion. Available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/778897/Modernising_the_Mental_Health_Act_-_increasing_choice__reducing_compulsion.pdf
[4] See APPG on Women in the Penal System (2020) Prison for their own protection: the case for repeal. Available at https://howardleague.org/wp-content/uploads/2020/10/APPG-For-their-own-protection-FINAL.pdf