Written evidence submitted by the Parole Board for England and Wales (MHB0058)

The Parole Board for England & Wales welcomes the opportunity to contribute to this call for evidence on the draft Mental Health Bill.

The Parole Board is an independent body that sits as a court and carries out risk assessments on prisoners to determine whether they can be safely released into the community. Detailed information about the Parole Board can be found on our web pages: https://www.gov.uk/government/organisations/parole-board

Please find below responses to the areas of relevance to the Parole Board, which are predominantly related to patients concerned in criminal proceedings or under sentence, especially those restricted patients transferred from prison to hospital under s47/49 of the Mental Health Act.

What are your views on the changes to how the Act applies to autistic people and those with learning disabilities?

It is understood that the revised detention criteria proposed in relation to people with a learning disability and/or autistic people to no longer be detained unless they are suffering from a co-occurring mental disorder will not apply for those detained under Part 3 of the Mental Health Act (i.e., individuals accused of, or serving a sentence for committing a crime). For cases that come before the Parole Board, it would be helpful if a similar approach to Care (Education) and Treatment Reviews could be implemented which would support identifying the right care and support to be put in place, should release into the community be directed. Placing a duty on the relevant health authority to provide such provisions would be welcome. Setting out in statute which is the relevant health authority would provide clarity and avoid unnecessary misunderstanding and delay.

Such a statutory responsibility resting with catchment area services to assess, advise on, and arrange after care for prisoners with mental disorder is currently missing from the provisions. Mentally disordered prisoners too often remain detained in prison in the absence of alternative treatment options in parallel with learning disabilities in hospitals. 

To what extent will the draft Bill achieve its aims of reducing detention, avoiding detention in inappropriate settings and reducing the number of Community Treatment Orders?

The Parole Board supports the proposals set out in clause 41 to ensure those individuals who meet the criteria for detention under the Act are not inappropriately placed into prisons as “places of safety”.

Using prison establishments for the safety and protection of individuals who are being placed there is not in their best interests, and alternative inpatient settings are available which should be considered very carefully. 

However, whilst the Bill addresses those coming before the courts and being diverted from the criminal justice system to hospital for treatment, it does not include those who become unwell once they are in prison. These prisoners may have been assessed and found in need of a transfer to hospital but are not considered a priority for a bed by the relevant mental health provider because they are in prison, and it is considered that this protects the public and ensures the prisoner’s safety. 

In such circumstances, the prison is effectively being used as a place of safety while a bed is awaited. It must be recognised that the level of care in prisons falls short of what would be available in the inpatient setting that a prisoner has been assessed as requiring. This could be seen to disadvantage serving prisoners against those who do not come into contact with the criminal justice system. The Parole Board would hope that this issue could be considered by the Committee.

The Parole Board would also highlight the issue of prisoners being returned to prison following remission from a s47/49 Mental Health Act transfer to hospital. Very often, these prisoners have spent significant periods of time in hospital and usually the plan would be for them to be discharged/released via the Mental Health Tribunal and Parole Board processes. However, in some cases, an incident takes place, and a decision is made to return them immediately to prison. For restricted patients with mental illness, this is often an inappropriate response, as the original reasons for their transfer to hospital still remain. They are also unlikely to remain mentally stable enough to complete any required offending behaviour work and their mental health subsequently deteriorates. Both of these makes it very difficult for the Parole Board to then agree to their release as the mental health pathway identified is often no longer available.

For those restricted patients remitted to prison, as a minimum, reinforcing the right to s117 care continuing once back in prison would be helpful. Enshrining into law a continuing responsibility for the local health authority and their delegated agents to contribute to care of the prisoner whilst in prison would assist with future assessments. Setting out in statute which is the responsible local health authority would provide clarity and avoid unnecessary misunderstanding and delay.

The Mental Health Act Review report published in 2018 made a recommendation in relation to the Parole Board with regard to s47/49 Mental Health Act patients whose eventual release is a matter for the Board. This involves restricted patients who currently have a Mental Health Tribunal, which finds them suitable for discharge from hospital but then must wait for the Parole Board to review their case and direct whether or not they can be released.  The report highlighted that the existing process involving both the Mental Health Tribunal and Parole Board was far too elongated and inefficient, and recommended that it be streamlined. It was acknowledged that, in many cases, significant delays occurred between the two hearings.

In response to this, the Parole Board and the Public Protection Group within HM Prison and Probation Service, in consultation with the MHTs, established a pilot for a new streamlined parole process for this cohort of prisoners. The evaluation of the pilot is due to take place at the end of 2022.

To what extent are the proposals to allow for conditional discharge that amounts to a deprivation of liberty workable and lawful?

Clause 30: Conditional discharge subject to deprivation of liberty conditions

The Parole Board read with interest the proposals in clause 30 to provide for where a restricted patient could be released in circumstances which would constitute a deprivation of liberty. However, it would be helpful to have clarity on when this might be allowable, particularly where it would fall to the Parole Board to determine release. It will be important to ensure that proposals take into account any overlap with those restricted patients who come before the Parole Board, and where licence conditions are put in place to manage the risk of harm they pose to others. 

How case law (MM v Secretary of State for Justice [2018] UKSC 60) applies to parole and licence conditions in this regard is not yet tested. However, if it is unlawful under the Mental Health Act to impose a condition of discharge that amounts to a deprivation of liberty, the Board has taken the position that it is likely to be unlawful to direct release under the Criminal Justice Act for licence conditions.

Currently, where a release plan involves the Responsible Clinician recommending a condition which would mean a restricted patient is subject to constant supervision on release, an MHT has no power to make such a condition. By extension, it is determined that the Parole Board would not be able to direct release under similar circumstances. Where such a condition is felt to be the only way to safely discharge the restricted patient, then the likelihood is that the criteria to continue to be detained is met and there is no direction for release.

It would be helpful to have some clarity on circumstances where a restricted patient could be released under such restrictions by the Parole Board. It would be unfortunate if the proposals disadvantage such restricted patients, by creating unmanageable, and likely unlawful, release arrangements that the Parole Board could not approve. This only applies to a very small number of cases that the Parole Board considers.

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?

Clause 31: Transfers from prison to hospital

We would strongly support the aim to reduce delays for prisoners to be transferred from a prison establishment to a hospital setting and welcome the introduction of a statutory 28-day time limit.

Transferring prisoners as swiftly as possible out of the prison setting to one where they can receive the treatment they need is critical. Parole panels do see prisoners who clearly need mental health support and treatment, and yet remain in prison, where their wellbeing tends to deteriorate further. It is often difficult for prisoners to engage meaningfully in their parole review whilst their treatment needs are not addressed. Whilst it is appreciated there are limited resources, these prisoners tend to be very vulnerable and need to be transferred to the hospital setting far more quickly than is currently practicable. 

Setting a 28-day limit will support the actual transfer, but measures need to be put in place to make a diagnosis in the first place, and this should happen much earlier.

The Board would also mention that this 28-day limit may lead to a cautious tendency to divert prisoners to higher security placements than is warranted, which may lead to pressure on those facilities. Practitioners working to such demanding timescales might promote ‘defensive practice’, resulting in medium secure units directing any potentially complex cases to high security, locked wards may direct to medium secure services, etc.

In some cases, it would be more beneficial for a prisoner to have a period of assessment in hospital, and not necessarily treatment, but the wording of s47/49 is clearly for treatment only. This approach implies that an assessment has taken place in the prison setting, which may not have been ideal, and in some cases, very difficult to achieve given the limits of Mental Health In-reach Team (MHIT) provision. MHIT appointments can be difficult to secure, and services are not 24/7.

As a result, behaviours that could be a manifestation of poor mental health may not be readily visible to clinical staff in the way they would be in a hospital setting. Staff working on a prison wing may not be in a position to identify mental health related behaviours and could treat them as disciplinary or security incidents leading to inter-prison transfers. It is also understood that there can be changes to medications arising from local policies differing across the prison estate. These factors could contribute to a lack of continuity of care and staff not capturing the full picture. This in turn, once again, is likely to result in delays of diagnosis and subsequent transfers to the most appropriate setting. Framing the wording of s47/49 to cover transfer for assessment of a mental disorder and not just treatment could facilitate swifter transfers to hospital from prison. 

If s47/49 remains for treatment only, swifter transfer might be supported by facilitating a clear, comprehensive diagnosis as early as possible. An examination of the current levels of access to mental health in-reach services may assist in this respect.

Identifying mental health needs

The range of mental health issues spans a very wide spectrum and so requires a complex system to identify and record any issues prisoners are experiencing accurately, to ensure the appropriate support mechanisms are put in place. It would be of great benefit if mental health needs could be assessed at the point of reception into custody, and periodic reviews during the prisoner’s time in custody take place, as those needs will change over time.

Parole panels regularly see prisoners serving indeterminate sentences who have significant mental health needs which are not being met in the current Mental Health In-reach Team structure, particularly for prisoners who may be paranoid and wish to avoid treatment. Their mental ill health is often linked to their index offence and future risk of violence.

However, it should also be noted that mental health may not have been a pre-disposing factor in a prisoner’s original offending behaviour, which may result in them being disadvantaged, as the issue arises during their time in custody. For this reason, periodic reviews should be undertaken for all prisoners, not just those that arrive with mental health needs, so that early identification of a developing mental health issue can be made.

Provision of support into the community

Parole panels often come across a range of challenges when reviewing release arrangements where mental health wraparound services are an important factor for both the wellbeing of the prisoner and the protection of the public. It is not unusual for the Parole Board to have to undertake considerable work to engage catchment area mental health trusts, forensic psychiatric services, and providers to work together to develop care and support packages for prisoners with specific needs.

Further issues may arise when, due to exclusion zones, the catchment area mental health team cannot practically monitor the prisoner in the community where they will be placed due to geographical distance. Whilst this should not result in services not engaging in the provision of support, there can be subsequent funding and clinical disagreements about responsibility with the local community mental health services where the individual is placed. In many cases, the starting point is establishing who will take the responsibility for making assessments and for locating services and funding. Setting out in statute which is the responsible lead agency would provide clarity and avoid unnecessary misunderstanding and delay. Linked with this, panels struggle to secure well informed risk aware forensic services involved in assessing and offering aftercare for those mentally disordered prisoners who may be released with an adequate risk management plan. This often delays release.  

Parole panels have experienced serious problems in community mental health teams only accepting responsibility for community management and supervision post-release, when release has been approved by the Parole Board. This is an issue, as mental health may be a risk management factor in the community and the Parole Board is unable to support release until community mental health support is confirmed. It would therefore be helpful if community mental health services are mandated to be involved as early as possible and accept responsibility prior to a Parole Board hearing considering release.

Better communications and clearer pathways, setting out scope and responsibilities of relevant agencies, would go some way to mitigate against current delays to parole reviews when these issues arise.

Are there any additions you would like to see to the draft Bill?

Clause 29: References to tribunal for patients concerned in criminal proceedings etc

The Board notes that the automatic referral period for Part 3 restricted patients is to be reduced from three years to 12 months. Consideration should be given on how this would work in practice alongside those cases where a parole review is also ongoing. Whilst the two jurisdictions can work in parallel, there may be some consequences to explore on the impact of both processes overlapping.

16 September 2022