Mental Health, Crime and Criminal Justice

Responses and Reforms

Jane Winstone, Jane Winstone

• Publisher: Palgrave Macmillan
• Year: 2016
• ISBN:
  9781137453884
• Topic: Scienze sociali
• Subtopic: Criminologia

It has long been known that the pathway through the criminal justice system for those with mental health needs is fraught with difficulty. This interdisciplinary collection explores key issues in mental health, crime and criminal justice, including: offenders' rights; intervention designs; desistance; health-informed approaches to offending and the medical needs of offenders; psychological jurisprudence, and; collaborative and multi-agency practice.
This volume draws on the knowledge of professionals and academics working in this field internationally, as well as the experience of service users. It offers a solution-focused response to these issues, and promotes both equality and quality of experience for service users. It will be essential reading for practitioners, scholars and students with an interest in forensic mental health and criminal justice.

1

Crime, Exclusion and Mental Health: Current Realities and Future Responses

Jane Winstone

When Simon Stevens took up his role as CEO of NHS England, an executive, non-departmental body established in 2012, he announced the NHS five year forward view with seven models of care (Kings Fund, 2015). In response, Laurence Moulin posted the following comment:

Unless we redesign structure and services from the ‘bottom up’, starting with what will be offered for people receiving services, and ensure that the ‘offer’ is a single physical/mental health service, we may find at the end of the five year plan we have only succeeded in moving the deckchairs into a different pattern. (Laurence Moulin Consulting in Mental Health and Learning Disability, 2015)

This book arguably reflects both positions – positive and forward looking, identifying strategies that work, and suggesting that efforts and resources should be targeted to these. Plus, a twinge of ‘moving deckchairs’ pessimism. There have been many initiatives with little recognisable long-term impact. These have been well-meaning and intended to address what seems to have become an intractable problem of adequately supporting people with mental health needs, especially those who offend (Winstone and Pakes, 2007). These initiatives started with Reed (1992) and include, in the intervening decades, the Dangerous Severe Personality Disorder (DSPD) endeavour (see Scally, this volume) and various legislative policies and guidelines, including a revision of the Mental Health Act in 2007. Now, with an energising burst, the Bradley Report (2009), which was wholeheartedly welcomed, and the establishment of NHS England (2012), whose five year view was greeted with cautious enthusiasm.

In the spirit of transparency, accountability and evidence-based evaluation of publicly funded initiatives, an independent commission was set up to review the five years of progress on the 82 recommendations arising out of the Bradley Report (Durcan et al., 2014; see also Rogers and Ormston, this volume). This reports that steady progress is being made, especially in the development of increased provision of liaison and diversion teams for adults, children and young people and that early intervention is being offered in police stations and courts across the country (Durcan et al., 2014, p. 3). This is certainly encouraging given that the final recommendations of the Bradley Report were, somewhat depressingly, extraordinarily similar to the conclusions drawn by Reed nearly two decades before (Reed, 1992; see Pakes and Winstone, 2008, 2009). Reed had also concluded that a coherent framework of liaison and diversion services was required for those entering the criminal justice system with mental health needs; although in the intervening decades there was little progress to show for the, arguably sporadic, efforts of policy makers to realise this. However, there is some evidence that we live in more enlightened times, where joined-up thinking and the top-down energies and resources of Health and Justice may finally be targeting the multiple, complex needs of the same populations with equal determination and that the initiatives arising out of the Bradley Report and NHS England will have concrete, sustainable outcomes. There is certainly, both then and now, a spirit of willingness to succeed from those delivering the services. A survey of professionals working within 101 liaison and diversion schemes demonstrated their commitment and tireless efforts towards supporting this group (Winstone and Pakes, 2008; Pakes and Winstone, 2010). Some of these professionals have contributed to this volume, and many are currently participating across multi-agency settings to drive forward the new agendas in Health and Justice (see Rogers and Ormston, this volume).

Staying one day ahead of yesterday

Looking to the past helps us to understand the potential hurdles and provides learning to carry into the future. The need for change has been couched in a range of political agendas over the last two to three decades. ‘Tough on crime and tough on the causes of crime’ and the ‘Public Protection Agenda’ were the flagships of the Labour government years, whilst the coalition government forged its initiatives under the label of the ‘Big Society’. The focus of these agendas can be summarised as the requirement to reduce costs (economic imperative) and to improve the ratio of costs to intended outcomes (individual, social and community impact). These broad thrusts can be identified in the current restructuring and focus of Health and Justice strategies.

The Five Year Plan set out by NHS England (Kings Fund, 2015) has attracted a good deal of attention, not least because it is a strategy to resolve the problems that have beset the service, one of which, as Simon Stevens stated, is health inequalities (Stevens, 2014). Health inequality particularly impacts on those who have mental disorders and also offend (Winstone and Pakes, 2005; Bradley, 2009). Research that is seminal in this area, Singleton et al. (1998), demonstrated that 90% of those on remand and in custody have one or more clinically diagnosable mental health needs, with a subsequent study finding that 10% of male and 30% of female prisoners have previously experienced a psychiatric acute admission to hospital (Department of Health, 2007). In addition to the 90% of those incarcerated with a mental health need, in the period 2013/14 there were a total of 23,531 people subject to the Mental Health Act (1983, revised 2007). This is 6% (1,324) more than at the end of the previous reporting period, and 32% greater than at the end of 2008/09, the year when Community Treatment Orders were introduced (Health and Social Care Centre, 2015).

Bradley (2009) claimed that unmet, complex, multi-dimensional social and health needs have continued to allow people with mental health difficulties to end up in the criminal justice system. Partly I would argue that this is a result of over-stretched mainstream health services and social provision and partly because, having entered the criminal justice pathway, the support for mental health struggles to achieve the same standard as mainstream services; this is particularly so for in-reach prison services (Brooker, et al., 2002; Durcan, 2008; Bradley, 2009; Offender Health Research Network, 2010). These factors contribute to this group being particularly over-represented in a ‘revolving door’ of frequent short-term prison sentences, with no robust, centrally agreed, community, social or healthcare pathway of provision to disrupt this pattern (Revolving Doors Agency, 2007; Bradley, 2009). This affects youth and adults alike (see for example, Chitsabesan and Hughes, this volume; Göbbels, Thakker and Ward, this volume).

In recognition that the potent mix of mental disorder, multiple complex needs and offending behaviour poses a unique challenge to the criminal justice system, there has been a plethora of guidance and legislation. This includes Healthy Children, Safer Communities (2009), Government Drug Strategy (2010), Breaking the Cycle (government green paper and response, 2010/2011), No Health Without Mental Health and implementation framework (2011/2012), Ending Gang and Youth Violence (2012), Preventing Suicide in England (2012), Integrated Offender Management (2013) and PIPE (Psychology Informed Planned Environments; 2013). Not forgetting, of course, the Bradley Report (2009) and recommendations, the creation of NHS England (2012) with seven models of care, the Care Act (2014), and the Offender Rehabilitation Act (2014) which includes updated guidance for service commissioning and provider agencies to deliver the Mental Health Treatment Requirements (MHTR) locally. See also the Criminal Justice Act 2003 (CJA 2003).

Typified by the failure of the MHTR to achieve significant uptake due to funding and resourcing issues (Pakes and Winstone, 2012), none of the statutory agencies which comprise the criminal justice system have the training, resources or remit to implement and tackle alone the issues identified in this tranche of legislative activity, guidelines, reports and plans. Two broad areas particularly bedevil their efforts to address the contributory dynamic risk factors for offending in those with mental health needs (Winstone and Pakes, 2010). Firstly, the link between social exclusion, mental health needs and offending behaviour is securely established (Thornicroft, 2006; Bradley, 2009; Seymour, 2010). Social exclusion as a pre-existing contributory factor to anti-social behaviour is therefore prevalent amongst those with mental disorder who present to the criminal justice system. However, to address this, it requires community care and social provision pathways, which are at best patchy and at worst non-existent. Second, is the requirement for health care to support mental health needs once an individual has entered the criminal justice system (Blackburn, 2004); this is clearly beyond the remit of the statutory agencies. For example, with high offending rates of individuals with substance misuse and mental health needs (Pycroft and Clift, 2012), those with this dual diagnosis have been noted to be liable to fall through the net of the services. The service providers are not formally linked, are separately commissioned and therefore pose a particular challenge to multi-agency collaboration (Bradley, 2009; see Pycroft and Green, this volume).

As a result of the resourcing issues facing social and healthcare, the criminal justice system has become what some have claimed to be the ‘dustbin’ (Revolving Doors Agency, 2007), collecting up all those for whom other services are unable to make provision. However stretched or ill-equipped the statutory agencies, they cannot refuse an order from the court to manage/implement an offender’s sentence. Neither are they in a position to routinely provide, through interagency services, the specialised provision to address the multiple, complex needs which could reduce the risk of harm to self and others.

Therefore, the policy responses, the initiatives that have been driven by the Bradley Report and the Five Year Plan to address health inequalities, face uphill work to redress and improve upon the current status quo. In the NHS, the mental health trusts in England have seen their budgets fall by more than 8% in real terms over the course of the last parliament (coalition government 2010–2015). It is calculated that this amounts to a reduction of almost £600m, whilst at the same time referrals to the service have risen by nearly 20% (Community Care, 2015). In addition, it is claimed that thousands of people have been denied the social care support that could ensure their health does not deteriorate to a crisis point, which may also leave them at risk of antisocial behaviours. All this is set against a background of a paucity of crisis housing provision, home treatment teams being insufficiently funded, and shortage of beds – meaning that people are being sent miles away from home for in-patient psychiatric treatment (Community Care, 2015). It is hard enough to have mental health needs, with all the attendant miseries incumbent upon this, without structural responses exacerbating social exclusionary factors which disrupt networks of support (see Göbbels, Thakker and Ward, this volume). This, in extremis, leaves many in poverty, homeless and unknown to/unregistered with GPs or other services.

Establishing the Community Rehabilitation Companies (CRC), reforming the commissioning and provider structures (Offender Rehabilitation Act 2014), innovations such as peer mentoring and supervision of those in custody for 12 months and under, transforming the work of the National Probation Service (under the auspices of the National Offender Management Service, NOMS) and a target operating model of Payment by Results (Pbr), are part of the new frameworks and strategies to manage offenders. With regard to Pbr and social care, a study by Appleby et al. (2012, vii), concludes that:

While the introduction of Pbr may have had some positive impacts within the NHS in England, the current system as applied is not fit for our current and future health and social care needs despite efforts to develop and refine it.

Whilst not all privatisation initiatives fall within the Pbr formula, with regard to reducing recidivism some argue that even taking the broader perspective, which includes not-for-profit organisations, probation privatisation will be a disaster and likely to founder on the rocks of implementation (Garside, 2014). This is partly attributed to the Pbr formula for successful bidders for the CRCs, whereby a portion of the total payments will depend upon the degree to which they are successful in containing, possibly reducing, reoffending. It is true that the CRCs will have the responsibility for providing supervision for the first time to short-sentence prisoners (those sentenced to less than 12 months in prison) after release. It is also a fact that this group are comprised of many who will have unmet mental health and multiple social needs (Bradley, 2009). So, the CRCs will be under close scrutiny to see if they can succeed in a climate that is still focussed upon budget constraints and where health and social care inequality and social care provision pose significant challenges.

Managing risk

Given the numbers of offenders with mental health needs who are punished through the normal sentencing processes (that is, the CJA 2003), NACRO (2007a) and Bradley (2009) have argued persuasively that the legal definition of a Mentally Disordered Offender should embrace all those who enter the criminal justice system with a mental health need. Health care should begin from the moment of arrest, within a national framework of liaison and diversion (see Bradley, 2009; Durcan et al., 2014). Further, healthcare should not be confined to those who enter the criminal justice system whose mental disorder is so severe and debilitating that they are managed through the Mental Health Act once they appear in Court.

The focus of public awareness is, however, usually upon those with acute mental health needs who are assessed as posing a serious risk of harm to others. The reporting of these atypical cases through social media, newspapers, etc. has been recognised as generating a high level of public anxiety (Prins, 2005). This has had a twofold impact; firstly, it has exacerbated the stigma and stereotyping of people with mental disorder, particularly those who offend (Thornicroft, 2006; Lee, 2007). Secondly, it has resulted in a number of inquiries which have demonstrated deficiencies in the management of risk. I will briefly explore some notorious and high profile cases to consider the debates and dilemmas. If change is to mean progress, it will need to be inclusive of the identified areas of deficit as these will impact on all those with a mental disorder who offend.

In 1996 Michael Stone murdered Lin and Megan Russell. He was known to services and diagnosed as having a psychopathic personality disorder with psychotic symptoms aggravated by substance misuse. The independent inquiry reported on his treatment, care and supervision (Francis, 2006). Unusually, it also addressed the influence of the unprecedented media interest and involvement, much of which was inaccurate and misleading (Prins, 2010). The inquiry was delayed because of a lengthy appeal process, but when it was finally published it identified that mistakes were made by mental health, probation and social workers before the attack. These included the loss of medical records which jeopardized ongoing multi-agency care. There was a failure of addiction services to mount an effective care plan, in particular the denial of Stone’s request for in-patient treatment. Poor ID checks with different services also allowed him to register under different names leading to poorly informed assessments of risk and need. Marjorie Wallace, the chief executive of the mental health charity Sane, said Stone and the Russells were ‘failed by the psychiatric, probation and other services, none of which appeared to take responsibility for his care and treatment’ (The Guardian, 2006). The Mental Health Alliance stated that...