A Companion to Criminal Justice, Mental Health and Risk

Taylor, Paul, Corteen, Karen, Paul Taylor, Karen Corteen, Sharon Morley

• Publisher: Policy Press
• Year: 2014
• Print ISBN:
  9781447310341
• Edition: 1
• eBook ISBN:
  9781447312628
• Topic: Social Sciences
• Subtopic: Health Policy
• Index: Social Sciences

Within the domains of criminal justice and mental health care, critical debate concerning 'care' versus 'control' and 'therapy' versus 'security' is now commonplace. Indeed, the 'hybridisation' of these areas is now a familiar theme.

This unique and topical text provides an array of expert analyses from key contributors in the field that explore the interface between criminal justice and mental health. Using concise yet robust definitions of key terms and concepts, it consolidates scholarly analysis of theory, policy and practice. Readers are provided with practical debates, in addition to the theoretical and ideological concerns surrounding the risk assessment, treatment, control and risk management in a cross-disciplinary context.

Included in this book is recommended further reading and an index of legislation, making it an ideal resource for students at undergraduate and postgraduate level, together with researchers and practitioners in the field.

C

CARE IN THE COMMUNITY

Care in the community is the policy of relocating people with severe mental health problems, formerly styled ‘mental patients’, from mental hospitals to sites in the community. Although it has pre-war antecedents, and the closure of the Victorian lunatic asylum was heralded in 1960 by Health Minister Enoch Powell, the policy was formally adopted by the government only in the 1980s. The promotion of alternatives to authoritarian mental hospitals found widespread support among a disaffected post-war generation. In his seminal work Asylums (Goffman, 1961), US sociologist Erving Goffman captured the public mood with his portrayals of the degradations of asylum regimes. However, community care was soon being derided as a cover for cost-cutting measures. Amid headlines in tabloids (eg the Daily Mail and the Daily Mirror) such as ‘Freed mental patients kill two a month’ (Norris, 1997), a succession of cases involving former mental patients were flagged by the media, notably, the killing by Christopher Clunis of a stranger, Jonathan Zito, on the platform of a tube station. The ‘tube murder case’ was deployed as a symbol of the failings of community care policies (Hallam, 2002). The association between mental illness and violence was widely assumed and a person with mental illness who committed a violent act came to embody a fearful stereotype, even more so where black mentally disordered offenders were concerned.

In a climate increasingly governed by the politics of fear, the incoming Labour government announced sterner and more restrictive measures. ‘Community care has failed’, declared Health Minister Frank Dobson in 1998. Hereafter, concerns over risk took precedence, leading to the introduction of Community Treatment Orders (CTOs). Although the ‘failings’ of community care have been much aired, the policy has arguably never been properly applied. From the outset, government commitment was, at best, half-hearted. Historically, the tendency has been for policy to debate rival schemes for dealing with the ‘mentally ill’ as second-class citizens. Over this issue, as with others, the terms of public debate have been unduly narrow, prioritising economic and administrative over ethical considerations (Judt, 2011). Arguably, care in the community requires a profound revaluation of what it means to be the bearer of a psychiatric diagnosis (Barham, 1997). Debates about the role, status and well-being of former mental patients in society have been energised by the emerging user/survivor movement and received added urgency from revelations about the adverse effects of psychiatric drug treatments and about the inefficacy of CTOs. In a climate of austerity, amid cuts to welfare benefits and to services, recipients of care in the community face an uncertain future.

PETER BARHAM

See also: Community Treatment Orders; Dangerousness and Mental Disorder; Zito Trust

Readings

Barham, P. (1997) Closing the asylum: the mental patient in modern society. London: Penguin.

Goffman, E. (1961) Asylums: essays on the social situation of mental patients and other inmates. New York, NY: Doubleday Anchor Books.

Hallam, A. (2002) ‘Media influences on mental health policy: long-term effects of the Clunis and Silcock cases’, International Review of Psychiatry, 14: 26–33.

Judt, T. (2011) Ill fares the land: a treatise on our present discontents. London: Penguin.

Norris, D. (1997) ‘Freed mental patients kill two a month’, Daily Mail, 13 October, p 25.

Rogers, A. and Pilgrim, D. (2010) A sociology of mental health and illness. Maidenhead: Open University Press.

CARE PROGRAMME APPROACH

The Care Programme Approach (CPA) was introduced in England by the Department of Health in April 1991. The aim was to provide a policy framework for the coordination and delivery of specialist mental health services for adults following discharge from hospital or release from prison. The core elements of the CPA process involve the systematic assessment of the person’s needs, the drawing up of a care plan, the allocation of a key worker (or care coordinator) to monitor and coordinate care, and the regular review of progress. Since its introduction, the CPA has attracted considerable criticism, and has been described as ‘a flawed policy introduced insensitively into an inhospitable environment’ (Simpson et al, 2003, p 489). It has undergone reform involving ‘modernisation’ (Department of Health, 1999) and ‘refocusing’ (Department of Health, 2008).

The socio-political context for the introduction of CPA is important and this largely relates to the shift from ‘institutional’ to ‘community care’ in mental health policy. The emerging focus in both the media and policy during the 1980s and 1990s was overwhelmingly on the perceived risk of violence by mental health service users. The risk agenda in mental health has largely been characterised by a conflation of serious mental illness with dangerousness. The CPA can thereby be understood as part of ‘a set of interweaving social policies’ that reconstitute the three functions of the asylum to provide accommodation, care and control, specifically, by enabling surveillance to take place outside the institution (Rogers and Pilgrim, 2001, p 177).

An important ideological shift in the ‘modernisation’ of the CPA by the Department of Health in 1999 was away from a focus on diagnostic categorisation and towards a focus on risk, vulnerability and need (Rogers and Pilgrim, 2001). The main change was the introduction of a two-tier system of an ‘enhanced CPA’ for those with complex and multiple needs (generally intended for people who had been compulsorily detained in hospital) and a ‘standard CPA’ for people with lower levels of risk and/or need.

However, criticism of the CPA, both in terms of the process itself and failures in its implementation, continued after this reform, with the focus continuing to fall on the CPA’s function in relation to managing risk. In a large study of the use of the CPA for perpetrators of homicide in recent contact with mental health services, for example, Swinson et al (2010) found that of 380 such individuals, 69% were not receiving care under an enhanced CPA. In 2008, the two-tier system was dismantled in favour of ‘refocusing’ the CPA on those who were seen as being ‘high-risk’ and as having complex needs, effectively withdrawing CPA from those who would have been subject to standard provisions.

JO WARNER

See also: Care in the Community; Dangerousness and Mental Disorder

Readings

Department of Health (1999) Effective care co-ordination in mental health services: modernising the care programme approach: a policy booklet. London: Her Majesty’s Stationery Office.

Department of Health (2008) Refocusing the care programme approach: policy and positive practice guidance. London: Department of Health.

Rogers, A. and Pilgrim, D. (2001) Mental health policy in Britain (2nd edn). Hampshire: Palgrave Macmillan.

Simpson, A., Miller, C. and Bowers, L. (2003) ‘The history of the care programme approach in England: where did it go wrong?’, Journal of Mental Health, 12(5): 489–504.

Swinson, N., Flynn, S., Kapur, N., Appleby, L. and Shaw, J. (2010) ‘The use of the care programme approach in perpetrators of homicide’, Journal of Forensic Psychiatry and Psychology, 21(5): 649–59.

CARE QUALITY COMMISSION

The Care Quality Commission (CQC) is responsible for protecting the interests of people who are subject to the Mental Health Act 1983 (as amended 2007) (MHA) by monitoring how mental health services in England, in both the National Health Service (NHS) and private sector, are using their powers and fulfilling their duties for patients who are detained in hospital (including under Part III of the MHA in forensic/secure settings) or subject to Community Treatment Orders or Guardianship. Previously, the Mental Health Act Commission (MHAC) performed this role, but since April 2009, the CQC now carries out the functions. The MHAC was commended for its strong commitment and ‘systematic approach’ to human rights (Parliamentary Joint Committee on Human Rights, 2006–07, para 188), but it was not always ‘sufficiently heavyweight’ to exert pressure on health-care providers to improve standards of care and compliance (Boyes and Gunn, 2007, p 11). The government’s rationale for the change, therefore, was to enhance professional regulation, create an integrated regulator, strengthen patient safeguards and harmonise standards across health and adult social care.

The CQC is also responsible for the system of registration for health and adult social care that was introduced by the Health and Social Care Act 2008. The CQC seeks to ensure that the care provided by all hospitals in the NHS, the independent sector, specialist care services, community services, care homes, people’s own homes and some aspects of the criminal justice system, for example, prison ‘in-reach’ services, meets government standards of quality and safety. The CQC adopts a compliance approach to regulation: before it will grant a licence to operate, the providers must show that their services meet the essential standards.

The government set 28 standards that demand a certain level of service from all care providers. The CQC focus is primarily on the 16 standards that most directly relate to the quality and safety of patient care.

The CQC aims to carry out assessments of care providers at least biannually. They are carried out by compliance inspectors, who check all relevant information about the provider and visit the service to talk to the people who use it (and the staff), observe how the care is provided and check the provider’s records. MHA Commissioners continue to visit, inspect and interview patients detained under mental health legislation and the intention is that the joint arms of the CQC (compliance and mental health inspection) should be able to bolster each other to provide a more effective safeguard for patients subject to compulsion.

Successive CQC monitoring reports (and, previously, MHAC reports) have criticised the treatment of some patients detained in forensic settings under Part III of the MHA, in particular, the excessive restrictions and inappropriate use of coercive practices. For example, the 2011/12 report expressed concerns about the practices of night-time confinement, the withholding of mail and the telephone monitoring of patients detained in high secure settings (CQC, 2013, pp 38–41). The report also documented the inappropriate use of mechanical restraints on forensic MHA detainees, particularly when they are being transported between hospitals or conveyed to hospital by the police (CQC, 2013, p 50). The plight of some individuals with mental health problems who are arrested and detained by the police for excessively long periods due to delays in securing mental health assessments and appropriate transport (CQC, 2013, p 56), which is a long-standing difficulty, has also been mentioned in annual reports.

JUDY LAING

See also: Deprivation of Liberty Safeguards; Second Opinion Appointed Doctor

Readings

Boyes, S. and Gunn, M.J. (2007) ‘Law, regulation and the Mental Health Act Commission’, in I. Shaw, H. Middleton and J. Cohen (eds) Understanding treatment without consent: an analysis of the work of the Mental Health Act Commission. Aldershot: Ashgate, pp 105–12.

Care Quality Commission (2013) Monitoring the Mental Health Act in 2011/12. London: CQC.

Parliamentary Joint Committee on Human Rights (2006–07) ‘The human rights of older people in healthcare’, Session 2006–07, HL 156, HC 378.

CARERS AND CARERS’ RIGHTS OF MENTALLY DISORDERED OFFENDERS

A carer of a person with mental health problems is an individual who assumes an unpaid and unanticipated responsibility for another, the patient, who has mental health problems that are disabling and of a long-term nature with no curative treatment available. The majority of carers are relatives and female, with two thirds being mothers of patients. Carers are often the primary source of long-term support for mentally disordered offenders in hospital and the community. These carers have higher levels of stress and have less contact with services compared with carers of non-offending patients with mental health problems (MacInnes, 2000).

In England and Wales, local authorities have a legal duty to inform carers of their right to a carer’s assessment. Eligibility for carers’ services is based on the risk to the sustainability of the caring role. This examines how much of an impact a lack of support has on the carer’s ability to continue caring. The risks are graded as critical, substantial, moderate and low. Local authorities are asked to consider whether they will meet the needs of carers in the different risk bands. These findings should be recorded in a carer’s plan.

The ‘Code of practice for the Mental Health Act 1983’ (Department of Health, 2008) states that carers do not have an automatic right to receive information about the patient from the clinical team. The clinical team’s duty of confidentiality to the patient means that it depends upon whether the patient consents to information being shared. The only exception to this is if a carer needs to be given information, as to withhold it might put themselves or others at risk of serious harm. The Code also states that the patient’s progress should be discussed with carers and they should also be involved as far as is possible in the care-planning process. The carer has no power to intervene in a patient’s treatment while admitted under a section of the Mental Health Act 1983 (as amended 2007).

The Act uses the legally defined term ‘Nearest Relative’ (NR). The NR has certain legal rights in relation to someone who is detained. The NR may also be different from the identified carer. A carer has no legal powers under the terms of this Act. The NR is normally identified by starting at the top of the following list and working down:

1. Spouse or civil partner

2. Children

3. Parent

4. Sibling

5. Grandparent

6. Grandchild

7. Uncle or aunt

8. Niece or nephew

However, where a patient is living with, or being cared for by, any person on the list, or has relatives on the list who live outside of the UK, this can effect who is identified as the NR. The NR can apply for a Mental Health Review Tribunal only if the patient’s discharge has been blocked by the responsible clinician. Unless the patient objects, the NR must also be given the opportunity to become involved in any planning of the patient’s care and services after leaving hospital.

DOUGLAS MACINNES

See also: Bradley Report

Readings

Department of Health (1983) Mental Health Act 1983. Available at: www.legislation.gov.uk/ukpga/1983/20/contents

Department of Health (2008) Code of practice: Mental Health Act 1983. Available at: www.lbhf.gov.uk/Images/Code%20of%20practice%201983%20rev%202008%20dh_087073%5B1%5D_tcm21-145032.pdf

MacInnes, D. (2000) ‘The relatives and informal carers of mentally disordered offenders’, in C. Chaloner and M. Coffey (eds) Forensic psychiatric nursing: current concepts. Oxford: Blackwell, pp 208–31.

CARCERAL SOCIETY

The concept of the carceral society emerges in Michel Foucault’s (1977) work Discipline and punish and is later developed in his courses at the Collège de France (Foucault, 2003). Studying the history of the modern penal system, the author develops the idea of a continuum existing between the disciplinary power exercised inside the prisons and in the whole society. As the panopticon for prisons – Jeremy Bentham’s rational and scientific design allowing warders to have complete and constant control on inmates’ lives – modern societies are characterised by enhanced systems of surveillance and disciplinary mechanisms to govern individual behaviours.

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Table of contents

• Coverpage
• Titlepage
• Copyright
• Contents
• Contributors
• Acknowledgements
• Preface
• A
• B
• C
• D
• E
• F
• G
• H
• I
• J
• K
• L
• M
• N
• O
• P
• Q
• R
• S
• T
• U
• V
• W
• X
• Y
• Z