Mental Health and Offending

Care, Coercion and Control

Julie Trebilcock, Samantha Weston

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781315520353
• Edition: 1
• Topic: Psychologie
• Subtopic: Geschichte & Theorie in der Psychologie

This book explores the controversial relationship between mental health and offending and looks at the ways in which offenders with mental health problems are cared for, coerced and controlled by the criminal justice and mental health systems. It provides a much-needed criminological approach to the field of forensic mental health.

Beginning with an exploration into why the relationship between mental health and offending is so complex, readers will be introduced to a range of perspectives through which mental health and its relationship to offending behaviour can be understood. The book considers the politics surrounding mental health and offending, focusing particularly on the changing policy response to mentally disordered offenders since the mid-1990s. With dedicated chapters concerning the police, courts, secure services and the community, this book explores a range of issues including:

• The tensions between the care, coercion and control of mentally disordered offenders

• The increasingly blurred boundaries between mental health and criminal justice

• Rights, responsibilities, accountability and blame

• Risk, public protection and precaution

• Challenges involved with treatment, recovery and rehabilitation

• Staffing challenges surrounding multi-agency working

• Funding, privatisation and challenges surrounding service commissioning

• Methodological challenges in the field.

Providing an accessible and concise overview of the field and its key perspectives, this book is essential reading for undergraduate and postgraduate courses in mental health offered by criminology, criminal justice, sociology, social work, nursing and public policy departments. It will also be of interest to a wide range of mental health and criminal justice practitioners.

CHAPTER 1

The controversial relationship between mental health and offending

INTRODUCTION

Despite having a one in ten million chance of being killed by a stranger with schizophrenia (about the same chance of being hit by lightening) (Szmulker, 2000), we live in a society that appears to be preoccupied by the dangerousness of those with mental health problems. The stigma surrounding mental disorder can be acute and one reason for this is that mental disorder and crime, particularly violent crime, are often thought to be closely linked. While this may sometimes be true, the links are often overstated by the media, with academic research suggesting that people with mental health problems do not pose the level of risk that some assume. Moreover, people with mental disorder are consistently shown to be more at risk of violence from others (Brekke et al., 2001). However, the relationship between mental disorder and violence is an ‘ideologically charged issue’ (Markowitz, 2011:39) and despite common agreement that the violence committed by those with mental disorder is low, punitive and risk-orientated policies that unfairly target those with mental illness often prevail (see Chapter 3).

We begin this chapter by discussing the challenges involved with defining what we mean by key concepts like ‘mental disorder’, ‘mental illness’ and ‘mentally disordered offenders’. The chapter introduces readers to clinical definitions of mental disorder, as defined by diagnostic classification systems like the American Psychiatric Association’s (APA) Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5; APA, 2013) and the World Health Organization’s (WHO) International Classification of Diseases, 11th edition (ICD-11; WHO, 2018), along with the legal framework under the Mental Health Act (MHA) 1983 (as amended by the MHA 2007) in England and Wales. After considering a range of definitional issues we turn our attention towards the relationship between mental health and offending. This is followed by a discussion of the challenges involved with assessing the risk posed by mentally disordered offenders and consideration of some of the key methodological limitations in the field of forensic mental health. The chapter concludes by discussing the implications of these issues for policy and practice.

MENTAL DISORDER, MENTAL ILLNESS AND MENTALLY DISORDERED OFFENDERS

Below we briefly consider some of the main ways in which mental disorders are defined. Reflecting the lack of consensus about key concepts in the mental health field (Winstone, 2016), this discussion is split into ‘clinical’, ‘legal’ and ‘social/political’ definitions of mental disorder. Indeed, the lead editor of the DSM-4, Allen Frances, is quoted as having said: ‘[t]here is no definition of a mental disorder. It’s bullshit. I mean, you just can’t define it’ (Walvisch, 2017:7). The limited agreement about key concepts in forensic mental health generates many challenges, since a range of different actors must make important decisions on the basis of these concepts. While differences in terminology and understanding are most evident between those with different professional backgrounds and training, the very nature of mental disorder means that even similar experts will contest meanings.

‘Mental disorder’ is a common and broad term that usually refers to a very wide range of mental health problems. It is also our preferred term throughout the book, in part because key disorders that we discuss, such as ‘personality disorder’ are captured by this term, but not by ‘mental illness’. ‘Mental illness’ is a more specific term that tends to focus on those mental disorders that can be thought of in terms of an illness, such as schizophrenia. According to the National Institute for Health and Care Excellence (NICE) (2011), depression, anxiety disorders, obsessive-compulsive disorders (OCD) and post-traumatic stress disorder (PTSD) are the most common mental health problems in the UK, affecting up to 15% of the population at any one time. However, lifetime prevalence of mental disorder will be much higher, with one US study estimating that 50% of the population will experience a mental disorder by their 75th birthday (Kessler et al., 2005). In the UK, the largest single cause of disabilities is reported to be mental ill health, with a cost of £105 billion a year to the economy (Mental Health Taskforce, 2016). In addition to the high economic cost, mental disorders such as depression can be lifelong conditions with periods of relapse and remission, and are associated with higher mortality rates (NICE, 2011). This reminds us of the close links between mental and physical health, and that people with long-term and severe mental illness die on average 15–20 years earlier than people without (Mental Health Taskforce, 2016).

In line with common parlance, official documents (such as those authored by the Ministry of Justice and Department of Health) and other academics in the field, we commonly use phrases such as ‘mentally disordered offenders’ or ‘offenders with mental disorder’ throughout the book to refer to people who have a mental health problem and have also come into contact with the criminal justice system. While this should mean the terminology we use is familiar to those working and studying in the field, it is important to acknowledge there are many problems with these phrases (see Peay (2017) for a discussion). One obvious problem follows from the lack of consensus about what mental disorders are or what we mean by ‘offenders’, a discussion we come to below. Phrases such as ‘mentally disordered offenders’ are problematic because they reduce people to their worst behaviour as offenders, and it is essential to recognise ‘first and above all – offenders are human beings’ (Vandevelde et al., 2017:72). Peay (2017:641) also argues against treating offenders with mental health problems as an isolated category, not least because this would presuppose the existence of another group of ‘mentally ordered offenders’ and ‘such a clear-cut division is problematic’.

CLINICAL CLASSIFICATIONS OF MENTAL DISORDER

One of the most established classification tools used to diagnose mental disorders is the DSM-5, with the most recent edition published in 2013. First published in 1952 by the APA, it has been described as ‘one of the most influential and controversial terminological standards ever produced’ (Pickersgill, 2012:544).¹ Another well-known classification system, available in 43 languages and used by more than 100 countries across the globe, is the WHO’s ICD-11. The latest and 11th revision of the ICD was released in June 2018,² although the WHO has been responsible for the ICD since 1948 following publication of the ICD-6.³ In contrast to the DSM-5, the ICD-11 covers all diseases, disorders and related health problems, with only one part relating to behavioural and mental disorders.

The development of these classification tools is closely linked to the growth of psychiatry (and other ‘psy’ disciplines such as psychology and psychoanalysis) and the ‘systematic control’ of mental disorder that began in the nineteenth century (Rogers and Pilgrim, 2014). An extended critique about these clinical classification systems, and the medical model on which they are based, is provided in Chapter 2. However, it is worth noting here, that mental disorders are often extremely difficult to define, and our understandings of mental disorder are culturally and historically specific. Duggan (2008:505) argues that questioning the ‘very existence’ of a disorder is common within the mental health field, in a way that it is not in other more traditional areas of medicine. Most mental disorders do not have a clear and specific aetiology (in the way that other medical problems do) and most mental health problems can only be diagnosed by self-reported behaviours and clinical observation (rather than specific tests like those found in general medicine) (Anckarsäter et al., 2009).

LEGAL DEFINITIONS AND FRAMEWORK

The main legislation that governs the detention and community management of people with mental disorder in England and Wales⁴ is the MHA 1983 (as amended by the MHA 2007), although offenders with mental health problems may also be governed by other legislation including the Mental Capacity Act 2005, the Criminal Procedure (Insanity) Act 1964 (as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and the Domestic Violence, Crime and Victims Act 2004). While we explore the MHA 1983 (as amended by the MHA 2007) throughout the book, a full discussion of these other legislative powers is beyond the scope of this text and readers are directed to Beswick and Gunn (2017) and Bartlett and Sandland (2014) for further information.

At this early stage it is important to highlight how powerful mental health law is. Pilgrim and Ramon (2009:274) help illuminate this point when they note that ‘the power to constrain, without trial, those posing a putative future risk is only found in mental health services and in statutes to pre-empt terrorism’. Similarly, Simon Wessely, chair of the recent independent review of the MHA in England and Wales, along with his colleagues, reminds us that

The MHA confers powers on the state that do not exist across the rest of health care. These powers are usually exercised when people are at their most vulnerable. Where people are anxious, quite reasonably, that their rights and personal dignity may suffer through the use of those powers, the state is under a heavy obligation both to ensure that they are no greater than necessary and to oversee and regulate their use.

(Department of Health and Social Care, 2018b:5, our emphasis)

Following an independent review of the MHA 1983, which concluded in December 2018, reform of mental health law in England and Wales is now anticipated (Department of Health and Social Care, 2018a). Prior to this, the last substantial changes to the MHA in England and Wales were made by the MHA 2007, which amended (rather than replaced) the earlier MHA 1983. During the process of review Peay (2002:747) observed that mental health policy in England and Wales was ‘permeated by perceptions and attributes of risk’ rather than humanitarian concerns. Controversially, the MHA 2007 did away with previous categories of mental disorder that were set out under the MHA 1983, in favour of a single definition of mental disorder, defined as ‘any disorder or disability of the mind’ (s1(2), MHA 2007). In practice, those detained under the legislation have a variety of mental disorders including: schizophrenia, depression and/or bipolar disorder, personality disorders, eating disorders and autistic spectrum disorders. Those with learning disabilities can be detained under the Act but only if their disability is associated with ‘abnormally aggressive or seriously irresponsible conduct’ (s2, MHA 2007). While both the DSM-5 and ICD-11 include substance use disorders, dependence on drugs and alcohol is excluded from the definition of mental disorder under the MHA 2007. Promiscuity and sexual orientation are also excluded; however, changes to the MHA 2007 mean that deviant sexual conduct no longer is (see Harrison (2011) for a brief discussion).

Part Two of the MHA 1983 sets out the main provisions for compulsory admission to hospital under the Act for ‘civil’ patients, that is, people not involved with criminal proceedings (i.e. non-offenders). It is important to remember that only a small minority of people with mental health problems are actually detained in hospital for treatment, with approximately 5.6% of adults in contact of mental health or learning disability services admitted to hospital during 2015/16 (National Health Service (NHS) Digital, 2016b). Individuals can be admitted for 28 days for assessment under section 2 of the Act, initially for six months for treatment under section 3 or for up to 72 hours in an emergency under section 4. Because people are detained in hospital under different sections of the MHA you may sometimes hear colloquial references to ‘sectioning’ or someone being ‘sectioned’.

Those involved with criminal proceedings are dealt with under Part Three of the MHA 1983. Cummins (2016:49) reminds us that the ‘most important differences between these and civil powers are that they follow on from conviction and form part of a criminal record’. There are many provisions under the Act that allow for detention in hospital and diversion away from the criminal justice system, and these are described in more detail throughout the book. Chapter 4 outlines the key powers available to the police to take people with suspected mental health problems to a ‘place of safety’, before Chapter 5 sets out some of the ways mental disorder may impact on court proceedings and the sentencing options available to the court. Chapter 6 considers the legal framework for the transfer of prisoners to secure mental health facilities,...