Journal of Bioethical Inquiry

, Volume 13, Issue 2, pp 317–326 | Cite as

Assaults by Mentally Disordered Offenders in Prison: Equity and Equivalence

  • Heidi Hales
  • Amy Dixon
  • Zoe Newton
  • Annie Bartlett
Original Research

Abstract

Managing the violent behaviour of mentally disordered offenders (MDO) is challenging in all jurisdictions. We describe the ethical framework and practical management of MDOs in England and Wales in the context of the move to equivalence of healthcare between hospital and prison. We consider the similarities and differences between prison and hospital management of the violent and challenging behaviours of MDOs. We argue that both types of institution can learn from each other and that equivalence of care should extend to equivalence of criminal proceedings in court and prisons for MDOs. We argue that any adjudication process in prison for MDOs is enhanced by the relevant involvement of mental health professionals and the articulation of the ethical principles underpinning health and criminal justice practices.

Keywords

Mentally disordered offenders Adjudication Violence Segregation 

Introduction

Psychiatric morbidity was and is common in prisons in England and Wales and elsewhere (Maden, Swinton, and Gunn 1994; Singleton, Meltzer, and Gatward 1998; Fazel and Danesh 2002). Mentally disordered offenders (MDOs) are those individuals with a combination of offending behaviour and mental health problems (Singleton, Meltzer, and Gatward 1998). Some prisoners, properly considered—though not officially recognized—as MDOs, will not be transferred to hospital (Hales et al. 2015). In prison, their difficulties can manifest as challenging behaviour, including physical violence. The focus of this paper is the management of such violence. This is an issue in all jurisdictions (see, for example, Adams and Ferrandino 2008).

However, we place our discussion in the context of care and management for MDOs in England and Wales and rehearse the ethical tensions that have been intrinsic to this jurisdiction’s clinical practice. Prison healthcare has been considered to be somewhat ethically distinct, not least because prison is explicitly the site of punishment. Focusing on the central issue of violence, we explain how its management is undertaken differently in prison and secure hospital settings and how there are thus distinct approaches to the management of violence in mentally disordered offenders, dependent on location. The specific prison approach is examined through discussion of intra-prison sanctions and the ethical position of healthcare staff in their application. We argue that similar day-to-day issues in hospital and prison are resolved differently. Health policy and practice guidelines in England and Wales are designed to ensure equivalence of mental and physical healthcare, that is, to ensure equity of provision regardless of the legal status of the person receiving care or whether they are placed in prison or other settings. The inconsistent application of ethical principle and practice of healthcare warrants attention, not least because it fails the principle of equivalence, the principle that prisoners are entitled to the same standard of healthcare as they would if they were not in prison (Department of Health/Her Majesty’s Prison Service 1999).

Management of Mentally Disordered Offenders in England and Wales

Historically, care for MDOs in England and Wales has been delivered in both prisons and secure hospitals. The enthusiasm for and balance between prison- and hospital-based care has waxed and waned over time. The responsible government department has correspondingly varied over time, from the Home Office—now the Ministry of Justice—with responsibility for the criminal justice system, to the Department of Health, which oversees the National Health Service.

Early, secure hospital facilities for MDOs in England and Wales were managed by the Home Office and staffed by prison officers. In 1947 responsibility for these secure hospitals was transferred to the Department of Health, reflecting a conceptual change in how the needs of MDOs were understood (Parker 1985); care of MDOs was recognized to be the responsibility of the Health Service (Home Office 1990). However, prison health remained under the management of the Home Office for many more decades despite numerous calls for this to be addressed (Royal College of Physicians, Royal College of General Practitioners, and Royal College of Psychiatrists 1992).

From the 1970s to the 1990s, there was a drive to transfer MDOs out of prisons and into these hospitals and their successors (Regional Medium Secure Units) for treatment. Mental health legislation (Mental Health Acts 1959, 1983, amended 2007) has never applied in prison in England and Wales, the legislative body having concluded that prisons were not suitable places of treatment for those requiring psychiatric hospital care as they are coercive institutions. Prisons were thought to lack the critical mass of skilled mental-health professionals (Reed and Lyne 2000) to be able to provide treatment.

The need for equivalence of care (Department of Health 2001) for those detained in prisons became increasingly apparent. The concept of “equivalence in prison healthcare” was first introduced in 1999 and meant that prisoners should have access to the same range and quality of healthcare as the external community (Department of Health/Her Majesty’s Prison Service 1999). In 2006, the Department of Health took responsibility for all healthcare provision in prisons to ensure this happened. Healthcare provision in prisons increased in quantity and quality. The debate about care and containment of mentally disordered offenders in England and Wales had changed. New issues emerged as it was accepted that many MDOs could remain in prison, receive treatment, and not be transferred to hospital.

Current practice in England and Wales is that prisoners with a mental disorder in remission can be cared for by the mental health prison in-reach team (Steel et al. 2007) and that those with an acute mental illness that cannot effectively and consensually be treated in prison should be transferred to a psychiatric unit of appropriate security level (low, medium or high) under the Mental Health Act, 1983/2007, should be arranged. Government guidance (Bradley 2009) is that this should be done within two weeks. This has seldom been achieved, creating a significant population of prisoners with acute mental disturbance (Dell et al. 1993; Isherwood and Parrott 2002; Rutherford and Taylor 2004; Forrester et al. 2009; Brown 2009; Bartlett et al. 2012; Forrester et al. 2013).

Medical Ethics in Forensic Mental Health: Past and Present

Modern medical ethics in custodial settings is informed by past experience, including the behaviour of doctors in World War II concentration camps (Shuster 1998). Roychowdhury and Adshead (2014) note that there has been an expansion of biomedical ethical literature based mainly on either the “principles/deontological” or “consequentialist” frameworks for active ethical reasoning. These two ethical frameworks indicate the difference between courses of action based on the most important moral principle (deontological) or the likely best consequences (consequentialist) (Adshead 2010).

The expansion in bioethical literature, though, has been predominantly outside of the forensic arena. This is surprising, as ethical questions for doctors working in prison are neither new nor resolved. In 1913 in London, suffragette Sylvia Pankhurst, imprisoned for campaigning for the right of women to vote, went on hunger strike in Holloway prison. The resultant protocol of force feeding led to the introduction of the so-called “Cat and Mouse Act” of 1913 (designed to release the women when they needed to start eating again) in order to avoid adverse publicity associated with such brutality (Simpkin 1997). In 1981, the IRA hunger striker Robert Sands died in the Maze prison in Northern Ireland after he refused food and medical intervention for sixty-six days in protest against IRA prisoners not being afforded political status. Forensic settings continue to raise practice-based ethical dilemmas, for example, in relation to the use of torture by the United States (Kimball and Soldz 2014) or the detention of migrants in Immigration Removal Centres (Channel 4 News 2015).

Forensic mental health practice is situated in courts, prisons, hospitals and the community and ethical reasoning is routinely required. A number of policy and associated practice changes in the United Kingdom have led to a blurring of agency lines between criminal justice and health (Bartlett 2015), for example, the Offender Personality Disorder Strategy (Joseph and Benefield 2010), the Dangerous and Severe Personality Disorder (DSPD) strategy (Maden 2007), and Multi-Agency Public Protection Panels (MAPPs) (Ministry of Justice 2012). Crewe (2012) has drawn attention to the role of psychological formulations of prisoners in determining their progress in the criminal justice system. An explicit new duty to co-operate, enshrined in U.K. law (Criminal Justice Act 2003), threatens historical understandings of patient confidentiality. The closer working relationship between health and criminal justice agencies may enhance safety, but it challenges established clinical roles.

Eastman, Riordan, and Adshead summarize the ethical conflict for forensic mental health practitioners as: “Health care ethics privilege patient autonomy, beneficence to the individual and non-maleficence. In contrast, law privileges justice” (Eastman, Riordan, and Adshead 2010, 318). Similar but subtly different terms describe ethical conflicts in forensic mental health stemming from the roles clinicians fulfil in their duty to their patient versus a duty to maintain the safety of potential victims. Adshead describes this as the “dual role” of a forensic mental health practitioner (2010, 315) and elsewhere as the “two hats problem; care and control” (2010, 305). Others have described this as “dual agency,” “overlapping roles,” or “double agency” (Robertson and Walter 2008). Robertson and Walter described this as “serving two masters,” with implied obligations to society outside of the therapeutic relationship. Forensic psychiatry exemplifies this, notably when the psychiatrist is a “treater” and/or “evaluator.” Roychowdhury and Adshead (2014) describe the dilemma where the same clinician prepares risk assessments (evaluator) for legal proceedings but also looks after the patient in order to facilitate ultimate rehabilitation (treater). Some jurisdictions consider that the evaluator and treater roles should be fulfilled by separate clinicians, but in the United Kingdom it is thought that the treating clinician often knows the patient well and can advise courts in the patient’s best interest.

This conflation of roles and their intrinsic difficulty is starkly obvious in countries with the death penalty (Kastrup 1988; Amnesty International 2009). Prisoners awaiting execution are medically examined to confirm that they are “medically fit” to be executed. Furthermore, mental health teams are tasked with treating those found to be “unfit” to enable execution (Kastrup 1988). The Royal College of Psychiatrists, United Kingdom, where the death penalty has been abolished, has stated:

The College considers that the death penalty is not compatible with the ethic upon which medicine is based; to act in the best interests of the patient. … The issues raised are similar to those faced by psychiatry when the duties to the patient and to society may be in conflict and when opinion is asked for by a court rather than by a patient (Royal College of Psychiatrists 2003, ¶3).

Contemporary Ethical Dilemmas in Prison Health

The advice for prison psychiatrists from the Royal College of Psychiatrists (2003) is more ambiguous. It suggests they should first maximize patient welfare over concerns of social systems, and, second, when involvement with prison process is inevitable, make a judgment on how closely to participate in it. This advice is critical to the appropriate behaviour of psychiatrists within the current U.K. prison system. In fact, it provides little clear guidance for their involvement in the prison disciplinary processes of segregation and adjudication. These processes manage violence within the prison.

Individuals with an acute mental illness and those with a personality disorder or learning difficulties in acute crisis often present with challenging risk-taking and violent behaviour. Prison authorities must manage this within the prison and are obliged to seek clinical advice.

Comparison of Prison and Hospital Management of Violence

In prison, clinical and discipline staff have role-specific duties to ensure the care and welfare of prisoners. The management of violence in prisoners is led by the prison staff and designed to reduce their risk to others but also to help them. This remains true even when prisoners have mental health difficulties. Good practice is based on mutual understanding by prison and clinical staff (who are health service employees) of how prison systems should and should not be applied, commitment to prisoner welfare, and respect for the different organizational values and ethos.

In hospital, mental health professionals are responsible for the management of violence in line with good clinical practice and healthcare law and ethics. There is no intention to punish in hospital, and management of violence is considered in the context of a person’s illness and the safety of the person and those around them. Incidents of violence cannot and should not be punished in hospital but can be reported to the police for them to consider if a crime may have been committed. This is then dealt with through the criminal justice system separate to the healthcare system. In prison this is also possible, but the additional quasi-juridical processes—the segregation and adjudication system—more often come into play.

The following two sections on immediate and medium-term management of violence in the two settings explore the realities of the segregation and adjudication system in prison and examine the ethical tensions that arise when prison is the site of clinical practice.

Immediate Management of Violence

Immediate management of violence in prison and hospital can involve separation of the person from their normal environment and sometimes the administration of medication. Clinicians’ involvement will vary but is integral in different ways in the two settings.

Prison Processes for the Separation of Prisoners From Their Peers

Violent prisoners can be moved to segregation facilities, dedicated units used, in part, to manage behaviour that threatens the “good order” of the prison. These are referred to by a variety of names, including segregation or care and separation, and respite units. Each prisoner has their own cell, with their belongings and with activities allowed within it, depending upon their behaviour. They are given time out of the cell for personal hygiene and fresh air. If a prisoner is segregated, they are removed from their normal prison location and carefully and closely managed and monitored to reduce the risk they pose to others and to the discipline of the establishment. Placement in segregation is authorized by senior prison staff, and healthcare advice is mandatory, both when segregation is instigated and throughout. Clinicians must judge the safety and effect of segregation on the physical and mental health of the individual, as well as raising any clinical risks. They can raise concerns and put forward clinical reasons to advise against segregation. A multi-agency meeting must convene to decide whether segregation should continue, and if it does, what safeguards should be put in place to ensure safety. The outcome could be that segregation is not possible and an alternative placement is required, which may be the closest prison healthcare unit with round-the-clock staffing by nursing personnel, possibly in a different prison. Prison rules determine that the placement in segregation must be reviewed within the first seventy-two hours and at least every fourteen days. Those in segregation should be reviewed by a nurse every day.

The level of privileges in segregation is decided on a case-by-case basis, though it could be very limited. The nature of an individual’s segregation can be quite flexibly and imaginatively adapted in line with the facilities available within each prison to encourage compliance and the safe and decent treatment of the individual concerned. For instance, a variety of adaptations or precautions may need to be ensured due to physical health concerns, or the individual may be allowed additional time out of cell or attendance at activities. Healthcare staff can also aid prison staff in planning the rate of return of privileges to aid the individual’s reintegration into the prison community, based on the principle of ensuring the best care for the individual. Under the prison incentive scheme (Incentive and Earned Privileges [IEP]), it takes weeks for patients to progress from basic to standard to enhanced level. This may be difficult for those in segregation to visualize and work towards. Therefore, healthcare staff can help prison authorities to devise smaller incentives for those in segregation.

Variations on segregation used to manage greater or lesser risk include:
  • residence on a normal wing or healthcare unit, with less time out of the cell

  • “single” unlock, which means the person cannot come out of their cell when others are out

  • “three unlock,” when increased staff need to be present for their cell door to be unlocked and for the person to be allowed out of their cell

  • “special accommodation,” meaning furniture and/or bedding is removed from the prisoner’s cell on rare occasions of otherwise unmanageable risk

The above processes are authorized and managed primarily via the prison authorities and overseen by an independent body, the Independent Monitoring Board (IMB). Engagement of healthcare staff should be seen by the prison managers as pivotal to fair, reasonable, and appropriate application and desistance of segregation and behavioural management plans.

The position of healthcare staff in this process must be governed by good clinical practice, adherence to confidentiality, and attention to the capacity of the prisoner to consent to or refuse disclosure of information. Patients’ wishes and best interests should be considered when healthcare staff bring any medical concerns into a segregation hearing/review.

A common issue is whether the consequence of segregation is likely to be deterioration in a prisoner’s health. When segregation, either as a punishment (cellular confinement) or as an administrative action (good order or discipline), is being or has been imposed, the manager is required to take the advice of healthcare staff as soon as possible, if not before it starts.

Hospital Processes for the Separation of Prisoners From Their Peers

Current hospital practice is that psychiatric inpatients who are acutely unwell may be placed in seclusion by clinical staff if they are acutely aroused and threatening. This is to manage their risk to others until they are more settled. Seclusion is not directly comparable to segregation in prisons, as seclusion rooms are sterile, with a single mattress and no activities or comfort items. People may remain in segregation for days to months, but the hope is that people are only in segregation for a short period of time. Time in seclusion can sometimes extend longer than a day. For the patient’s safety, there are seclusion reviews every four hours with nurses and junior doctors, review by a consultant psychiatrist every twenty-four hours and an external review if seclusion continues for longer than a week.

Every effort is made to verbally de-escalate patients and situations before recourse to such a step. Most wards now have de-escalation suites where patients can sit with staff individually whilst their levels of arousal are reduced. Though such time out (de-escalation and seclusion) may help a patient settle, further risk reduction may require the therapeutic administration of medication.

The Use of Medication for Violence in Prison and in Hospital

Giving medication against a person’s will as treatment under the Mental Health Act 1983 is not possible in prisons in England and Wales as the Mental Health Act does not apply in prisons. It can be given exceptionally, in the patient’s best interests, under the legal principles of the Mental Capacity Act 2005. Ongoing risk to others, even where the individual is both mentally disordered and lacks capacity to consent to treatment, must be managed but not by recourse to the administration of medication involving restraint. The net effect of this may be further deterioration in the person’s state combined with the clinician’s inability to care for them in the prison environment, leaving the prison authorities with a problem not only of care but also of control. This makes hospital transfer imperative, though often hard to achieve within a short time frame (Dell et al. 1993; Isherwood and Parrott 2002; Rutherford and Taylor 2004; Forrester et al. 2009; Brown 2009; Bartlett et al. 2012; Forrester et al. 2013).

If a patient in hospital is acutely unsettled and refuses oral medication, the clinical team can consider whether forcible administration of medication would be beneficial for the patient in line with the authorization in the Mental Health Act, 1983, as amended 2007. This can feel like an assault to the patient but ongoing seclusion (in hospital) or segregation (in prison) may be more traumatic and harmful for a patient. Furthermore, patients may not settle “with time,” and so continued medication is an important part of treatment and may obviate the need for seclusion.

Medium-Term Management of Violence: Prison and Hospital

The key distinctions between prisons and hospitals in the medium term response to violence are as follows: first, prisons contain their own powers of sanction whereas hospitals have none and must refer and defer to the police and the criminal justice system; second, the application of capacity assessments in relation to ensuing process is only codified outside prison. Both prison and hospital processes create situations where treating staff with a welfare role can also be evaluating staff, participating in a process that may lead to legal punishment.

In prison, violent acts are very rarely referred to the police. Many are dealt with through the adjudication process, with punishments served within prison. Violent incidents can only be formally recorded as proven beyond all reasonable doubt if an adjudication (see Box 1) is heard and concluded (PSI 47/2011; Ministry of Justice 2011). All prisons must demonstrate zero tolerance towards violence, as must the NHS. Such a stance is key in providing a safe and decent living and working environment where rehabilitation, recovery, the reduction of offending, and decency can be truly supported. Effective use of adjudications is usually central to each prison’s zero tolerance strategy.

From the prison management perspective, if prison healthcare staff are to demonstrate zero tolerance to violence, they must be engaged with the prison-led systems and policies because this is the institution/community in which they are working. Clinical staff make their own decisions about disclosure in line with both zero tolerance and professional guidelines on confidentiality.

Applying Adjudications for Mentally Disordered Offenders in Prison

Adjudicators can find the question of the capacity of accused perpetrators a troubling one. The adjudicator has to decide whether it is lawful, fair, and just to hold the hearing, and, if so, take proper account of any health issues in determining guilt and then punishment. Adjudicators want reasonable and sensible support and advice from clinicians to make these judgments. This clinical task is ethically contentious. PSI 47/11 provides that in advance of hearings being opened, prison healthcare staff should raise any medical concerns with adjudicators and that:

It is the adjudicator’s responsibility to be satisfied that the accused prisoner is physically and mentally fit to face the hearing and any subsequent punishment, and if there is any doubts about this Healthcare staff should be asked to advise. Similarly, the adjudicator should consult Healthcare if the prisoner’s mental or physical health may have been a relevant issue at the time of the alleged offence … or if the prisoner raised other health issues in defense (Ministry of Justice 2011, 21, ¶1.102).

While the decision to proceed is in the hands of the adjudicator, their request for advice from prison healthcare staff is similar to that made of expert witnesses (often the treating clinician) in criminal proceedings in considering the prisoner’s “fitness” to be interviewed by police, to make a plea to a criminal case, or to stand trial. Adjudicators want to support victims of crime lawfully but cannot and must not operate outside of what is lawful, right, and just. They must listen to advice from clinicians, dismissing and mitigating charges where required.

Clinical assessment is not without its challenges. Individuals may or may not have the capacity to decide whether or not to behave violently, while still having healthcare needs of a kind that warrant the level of care and support provided within twenty-four-hour healthcare units. Equally, prisoners residing on ordinary wings, for example, those with previously stable mental illness, can relapse, and their illness-related behaviour may result in them being caught up in the adjudication system as the first sign of their relapse.

Where a mentally disordered offender in prison is deemed too unwell by clinical staff, the adjudication process is not held, the charge will be dismissed and no disciplinary action will be taken. However, there is no standard disciplinary prison-based process in England and Wales that describes criteria for capacity to participate in the hearing, in contrast to the fitness-to-plead criteria for criminal courts.

In psychiatric hospitals, victims of violence (staff or patient) are encouraged to report the assault to the police. This generates a formal, non-clinical record of violent incidents which might even go to a criminal trial. Charges and convictions are authoritative in a way clinical records cannot be but both kinds of records of violence will inform ongoing risk assessment. Hospital staff can weigh up the patient’s mental state and risk before reporting any offence, understanding that violent patients with psychosis may have been irrational.

If charges are pressed and an MDO is taken to court, but is too unwell for the court process, the patient can be found “unfit to plead.” Either the trial is adjourned until the patient is well enough to understand court or a trial of facts is held. The role of the psychiatrist is to be an “evaluator”: to make recommendations to the court but not to be the decision maker. That responsibility lies with the court. If a patient is found not fit to plead and unlikely to recover sufficiently quickly for court to be adjourned, a trial of facts ensues. A patient found guilty by a trial of facts cannot receive a prison sentence and therefore must be admitted to hospital and detained under the Mental Health Act if management in a secure setting is required; otherwise a community order can be made.

Blurred Roles of Healthcare Professionals: Treaters and Evaluators

The primary role of most healthcare staff is caring, not controlling: they have the role of a treater. In the forensic mental health system, proximity to the legal and penal systems often requires clinicians to behave as evaluators. The primary ethical duty of the treater is to the patient’s welfare, where feasible operating in tandem with the patient’s expressed wishes and with respect for their autonomy. The evaluator is primarily contributing to justice, which inevitably reduces or removes the patient’s autonomy. Here, there is no guarantee that participating in the justice process will result in the best interests of the patient being served. In both prison and hospital care, this can be further complicated by both roles being expected from the same individual. This is a potentially confusing blurring of roles, not least for the patient. While the processes are laid out in statute law in relation to hospital practice, this is complicated by a lack of standardization of the current role of healthcare professionals in prison in both segregation and adjudication processes (themselves often overlapping) in prisons in England and Wales.

Anecdotally, different healthcare providers and professionals have adopted different ethical positions in relation to clinical work in prisons. This is poorly quantified or described in the United Kingdom but has been described elsewhere (Elger, Hantke, and Wangmo 2015). Individual practitioners may refuse to engage in either the segregation or adjudication process. However, in prisons where mental healthcare staff refuse to do this, primary care staff, with less likelihood of mental health expertise, complete these assessments, running the risk that relevant, abnormal mental states are not so well described or understood, inadvertently compromising the best interests of the prisoner. The absence of key mental health information, relevant to the understanding of unwanted behaviours can lead to the inappropriate application of segregation or a punishment with no mitigation. If the sanction involves cellular confinement, this may in turn lead to a deterioration in the prisoner’s mental state as well as the failure to ensure prompt treatment. However, “opting in” and communicating this type of information in line with the wish to avoid harm and promote the patient’s best interests may not be well received or understood by prison staff, who may be more focused on appropriate recognition of the prisoner’s “offence.”

The therapeutic relationship may be adversely affected by clinical involvement in prison process, but that is not a foregone conclusion. Our greatest concern is that practice varies across establishments, depending upon the personal ethical framework of prison-based clinicians and their relationships with the local prison governor. Perhaps, as with all situations with conflicting ethical frameworks, currently it is most useful for healthcare teams to articulate their ethical conflicts in order to promote defensible decision making based on clarity about the role of healthcare professionals.

How to Achieve Equity of Process for MDOs in Prison and Hospital?

This brief review of the situation of MDOs in prison and in hospital suggests that what will happen to a MDO after an alleged act of violence may depend as much on where they are at the time as what they have done. This seems unjust as the consequences of serious violence should be dealt with fairly and independent of the person’s place of residence at the time as well as independent of which prison doctors or governors are working in each prison. MDOs in prison and hospital require an explicitly equivalent “juridical” process as well as equivalence of healthcare.

Key to achieving equivalent process and thus enhancing the likelihood of equitable decision making, is the introduction of a standardized approach which explicitly uses the same judicial framework inside and outside prison, in and out of hospital. This would have pre-adjudication, during adjudication, and award components. If healthcare professionals absent themselves from disciplinary processes in prison because it is not an equivalent juridical process to that outside prison, this cannot be achieved. Such a failure to assess someone fully may be seen as unethical in itself, compromising an understanding of the individual and abandoning them to an inevitably uninformed system of punishment.

Mentally disordered offenders will usually have a psychiatric assessment to assess fitness to plead in court. This process is to ensure that mentally disordered offenders are able to engage in their court process, or have legal protections in place for them. The equivalent process in our prison system, pre-adjudication, would be that mentally disordered offenders who are in prison can be assessed to consider whether they are too unwell to undergo adjudication.

Notably, in courts in England and Wales, the court can be adjourned if the mental health professional advises that a mentally disordered offender will recover to a point where they will be well enough for court. The equivalent of this may be that the adjudication process is adjourned until the mental state of a mentally disordered offender has improved sufficiently for them to move to an ordinary wing.

As with court hearings, a mental-health-informed adjudication process needs to take into account the nature of a mentally disordered offender’s illness. Specifically, this will require mental health input to advise the prison staff whether an offender with mental health difficulties was mentally unwell at the time of the challenging or violent behaviour. In the United Kingdom there are legal defences for those proven to have had mental illness at the time of the offence if it is sensibly linked to their offending behaviour. This does not overrule justice but aims to balance justice with compassion. Usually the effect is to reduce the gravity of a sentence or to offer a medical alternative such as hospitalization, comprising care and containment.

Within this framework, of a mental-health-informed equivalence of judicial process, it is likely that most prison offences committed when an offender is mentally unwell could be considered and adjudicated. The consequences should be understandable and manageable by the offender. Sanctions would only be imposed after taking into account any mitigating circumstances. This would include an awareness of the likelihood of relapse of mental illness if the sanction were imposed. This has direct parallel with the opportunities in English and Welsh criminal law.

In practice, this may require greater separation of clinicians in prison who are there to care for prisoners and those who can assess the capacities relevant to this more explicit process. This still leaves room for those whose principled stance is not to involve themselves in prison punishment but who may feel able to operate clinically in a prison setting. It would need to have support from the prison authorities and the process could be taught within mental health awareness courses for discipline staff. This process will work best where there is the ongoing dialogue of shared understanding and joint work between health and prison staff.

There is also space for hospitals to learn from prisons about managing acute threat. Hospital seclusion rooms, to reduce risk, have no distractions for the agitated patient. Whilst this may be helpful for those with psychotic illnesses who need reduced stimuli, it can slow down the de-escalation process for those with personality disorders who require distraction. Thoughtful and psychologically-minded prison administrations have found ways to manage threatening and violent prisoners and help them reduce their levels of distress and agitation without reliance on forced medication and enabling them to have time out of their cells for “comfort breaks” and fresh air. These processes can appear more ethical and humane than the process of seclusion in hospital.

Conclusion

A lack of enthusiasm for the escalating costs of secure hospital care, combined with glacially slow transfer times of mentally disordered offenders to hospital may inject some sense of urgency into the debate outlined here. Inter-agency understanding may improve the care and management of violence by mentally disordered offenders. However, this is no substitute for both clarification of ethical roles and procedures for prison clinicians, including the firm establishment of criteria by which prisoners’ violent actions can be judged. The current ambiguity of existing professional advice from the Royal College of Psychiatrists and the demands of prison process leave prison clinicians of all kinds exposed to potential charges of unethical practice. This attention to individual and institutional ethical positions is overdue.

To assist any emerging guidelines, it would be important to know the extent to which adjudication practice varies in penal establishments across the United Kingdom. Given its ubiquity and frequency, an initial mapping process across prisons in the United Kingdom would be helpful. It could describe how often and in what circumstances prison doctors are involved in adjudication decisions, especially about mentally disordered offenders and placement in segregation. A qualitative approach to clinician and governor attitudes towards the dual role of the prison doctor and the task of balancing the competing ethical principles would nuance the debate. The management of violence in mentally disordered offenders in prisons is an intrinsically important and enduring dilemma. The key principles of equity and equivalence of care are only recently of relevance to prison healthcare, so long an undervalued, even despised, area of clinical practice, with little accompanying academic development. It is now timely to review how easily these new principles sit with the need for justice, which to date has largely governed actions in prison settings. Discussion is greatly needed in the clinical arena about the ethical dilemmas raised in this paper.

Notes

Compliance with ethical standards

Competing Interests

HH, ZN, and AB work as healthcare professionals in prison. AD is a prison governor.

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Copyright information

© Journal of Bioethical Inquiry Pty Ltd. 2016

Authors and Affiliations

  1. 1.HMYOI Cookham WoodCNWL NHS Foundation TrustRochesterUK
  2. 2.HMP HollowayLondonUK
  3. 3.HMP Holloway, CNWL NHS Foundation TrustLondonUK
  4. 4.PHSE, St Georges, University of LondonLondonUK

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