I have them all the time. Mostly I end up working it out in my head why it was a stupid idea. Thankfully.
But I keep getting this one idea that won’t go away. It’s pretty radical; and probably extremely controversial. (Note: when posting wasn’t sure whether to place this under “stupidness” also - I decided to reserve that right til after responses)
Ok, so what is it? I hear you both cry.
No, it’s not reality TV in a mental ward. (Not sure why that hasn’t happened yet tho – some NHS adminstrator somewhere must have thought of the money-spin opportunity?).
I’ll throw it open and see if someone can’t tell me why this is a bad idea. If anyone has any reference to considered opinions on this notion; please let me know too.
Mental Health Act reform seems to be going on all over the place lately. Most of them are highly controversial and always seem to attract argument and debate over the lawfulness of potentially indeterminable incarceration. I tend to agree, and I’ll try to keep my reasoning brief. [references are available: start at www.google.com and reference away]
Forensic detention: When someone breaks the law and has a defence of unsoundness of mind at the time.
Why do they not face the same sanctions as someone who is treated as a criminal?
They seem to be positively discriminated against for having mental illness as a “defence” that requires them to be incarcerated well passed the date of realease of their “sane” counterparts and of an indeterminable duration. If the research is believed; up to 75%* of incarcerated offenders have personality or psychopathy issues. We know these are high risk indicators of re-offending, yet we still allow them release at the end of their “time”.
If you happen to have a mental illness during your offence, that is meant to mitigate your circumstances – yet you spend longer incarcerated and without any date of release for it.
My main point being: Every person has a right to be a person before the law (United Nations Principles). Even “mental” people therefore deserve the right to be ’sentenced’ for a fixed length of time if they broke the law.
My belief is, if a patient is placed on an involuntary treatment detention order for breaking the law then they should actually have a right to be given a fixed length of ’sentence’.
Ok, so they go to hospital, but they don’t get any better – but do they still offend? Are they still a danger? If they commit crimes (mentally or otherwise) whilst under detention then they get prosecuted again. This then provides for a further period of ’sentencing’ that is in keeping with ‘normal’ or mainstream criminal justice.
If science/health care does not have the ability to ‘cure’ someone within a given time frame then what right do we have to predict they are going to be a risk of harm in the future based purely on an occasion of mental illness? The criminal justice system doesn’t seem to have a problem with letting offenders back out onto the street when they’ve done their time, even tho the research shows the recidivist rate is as high as 70%* in the first two years after release.
Those who have a genuine one-off psychotic outburst and murder someone could still be ‘parolled’ when sanity returns. A minimum involuntary treatment period might be applied, but there should at least be a maximum time allowed.
Not sure on the crime and sentencing stuff but, hey, even ‘mainstream’ murderers can get out in 2 years* (if commuted to manslaughter, diminished responsiblity, the Matrix defense, etc).
My proposition: Detention for involuntary treatment based on criminal behaviour should be prescribed as a maximum fixed time period commensurate to the offence commited as if they were a mainstream criminal before the law. Early release/Parole (?s25) can be achieved through judicial review based on criminalistic behaviour - not presence/absence of mental illness.
On civil detention: Involuntary treatment for being a danger to yourself or others based on presence of mental illness - but not actually breaking any laws.
My concern is, under the Act, clinicians are deemed judge, jury and jailor. Ok so we have MHRT’s. Generally they work ok but I seem to think they approach from the premise of “Why should we let you go?” rather than “Why should we allow them to keep you?” and all too often, the MHRT are bombarded with ‘assessments of risk’ that are often designed to simply make them feel liable for anything that might go wrong after they release a patient.
Initial detention should only occur with the approval of next of kin/carer. Guardianship provisions can support that process where the next of kin is, let’s say, incompetent. Any further period of involuntary treatment should only be permitted by the most supportive carer, next of kin or Guardian.
Having a mental illness isn’t a crime; why do we lock people up for it and indefinitely so? If theybecome a problem whilst in-patient (ie violent or offending) then criminal justice can ’sentence’ them for it, as is their right.
Only those who are suicidal or self-harming (include eating disorders) would present a problem area. I’m not so sure they can’t fall under the same provisions of next of kin/carer/guardian recommendations tho.
My proposition: Pah -what the heck, pick a number - 2 years maximum? 6 months? If they haven’t broken the law in that time then what’s the risk to the public anyhow?
Do you think the psychiatric profession can give up the power?
I guess the immediate dilemma would be – but how and where do we discharge them?
That would be the dilemma and pressure necessary to force significant service improvement in the community. If the service hasn’t ‘fixed’ them by then, then so be it. The alternative is of course, we don’t sentence prisoners anymore; we just lock them up without a release date, regardless of the offence, and don’t release them again until they’ve passed a risk assessment. That would be fair I guess but then we’d spend twice the money on new prisons then instead.
[Disclaimer Note: (esp. Criminal Justice and Mental Health Act reformers) Intellectual property copyright thingy applies; unless it goes tits up - in which case I was sleep-posting from the Matrix; a defensible mental illness under M'Naghten Rule and only 3 months 'sentence' please; no Haldol]
* statistics and figures used were guesstimates from memory of some stuff read somewhere once recently… ish and should be checked if you really care - but they’re close.
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14 Comments
When people are given a mental health disposal at the end of a criminal trial, they become patients rather than criminals, as it has been accepted that they were mentally ill at the time of the offence and should therefore be detained for treatment rather than punishment. Placing limits on the length of that treatment based on their original crime would muddy the waters quite considerably. Are they being treated or punished?
It would also be unfair, as someone who was considered well before their “sentence” was up would not be able to be discharged.
On the flip side, someone who was considerably unwell at the end of their sentence would be in an extremely vulnerable position - dumped out of the hospital into a community that doesn’t want them or welcome them, possibly knows of their offence and could target them accordingly.
Valid points beakie and I generally agree (I’m being split minded on this!). But the counter debate goes:
Detention for treatment statistically exceeds the length of sentence for non-mental offenders. This is because in MH we are allowed to predict risk. In mainstream prison, no such prediction is permitted to defer someone’s release if their time is up. Why is MH allowed to treat detained offenders discriminately based on presumptions of mental health issues?
Treated or punished? Ask the detained patient. Most I know still feel it’s punishment, especially when “I’d be out now if I’d gone to jail” is actually true.
Unfair - agreed, but judicial review like MHRT could still allow patients early release. The sentence is a maximum prescribed time only. A minimum time could be set - like s47 can have a restriction of time (tho rarely ever is).
“Considerably unwell” is a problem, but does not justify incarceration. Services should assist the person to live in the community or at least in a supported open unit accommodation. Mental illness is not a crime. Indefinite detention is pretty inhumane. If the unwell person does not act unlawfully, is it lawful or ethical to keep them detained?
Agreed, there has to be some kind of ‘involuntary’ process, but I think it needs to happen with a greater degree of scrutiny than simply 2 doctors or ASW/GP etc. Recommendations only by healthcare staff perhaps, but ‘permission’ only to be given in accordance with next of kin or guardian. Again, processes for displacing next of kin or guardian can be made available if necessary but I don’t see why next of kin or close personal other isn’t given more credibility. Perhaps there’s an issue as to whether a close person *should* carry that burden, as it can be quite daunting - the blog by Mr Mans Man show the dilemma that happens in a voluntary admission - involuntary would be pretty traumatic I guess.
However, my issue remains I guess that people with MH issues tend to serve longer than those who don’t have MH issues as an excuse. Something just doesn’t sit right for me with that.
“Detention for treatment statistically exceeds the length of sentence for non-mental offenders.”
Where is the evidence for this? Most peoples perception (including mine) is that detention for treatment is a soft option compared with serving a prison sentence. I would say that most people diverted from the courts into the mental health system “serve” less time in a special hospital than they would have in prison and generally have an easier time of it.
Mr Ian - you make an assumption that detention in a psychiatric unit will always and forever be an aversive experience for the patient. IME, this is not a given. For some patients, and (I’m told) especially for some forensic patients, the psych hospital is a refuge as much as a place where they get treatment. And, in those cases where it is an aversive experience, I think we should be working on making those units less aversive rather than setting arbitrary and probably unworkable limits to the time allowed for patients to get well.
E:
Hospital may be less restrictive in some ways (eg easier visiting access, not locked in cells, etc) but in other ways it is less useful (lack of activities, meaningful occupation of time, inadequate therapeutic services).
Special hospital is not an ‘easier time’. It’s maximum security and many don’t see outside for 7 years minimum, regardless of clinical presentation.
My experience is that mental health errs on clinical judgment of risk which, due to historical data always tends to be high with offender populations. The Home Office does not acknowledge that a detained mentally ill murderer is the same as a non-mentally ill murderer (probably as they are detained under different statutory instruments)- the statistics available show detention for murderers as being the comparable to all s41 restricted patients (as they may be liable to recall as a lifer on parole). However, s41 is not only for the offence of murder so available stats are skewed. (Stuff I did back in 1998 or so with DoH material - sorry can’t relocate source).
My own professional experience has been that it is harder for people to get discharged from hospital from a s37 than it is to get parole from jail.
I’ve seen people with minor charges ’serve’ excess of 12 months - because they’re not well. However, if the nature of the offence they commit is not such that it warrants longer than, say, 6 months, why do we allow hospital detention to continue indefinitely?
Beakie:
If it’s not aversive, why do we have to do it on an involuntary basis? Why aren’t they flocking in?
Hospital is a preferable refuge to prison for some I agree, and to some a welcome respite from life. I’m not against hospitalisation but I don’t see the moral rationale for keeping people detained indefinitely.
Working to make it less aversive I agree, but that’s a general consensus with hospital settings.
Is it still the case that a person tends to remain in hospital longer than possibly necessary because of concerns of ‘risk’ and lack of provision of services?
If it’s not aversive, why do we have to do it on an involuntary basis?
I didn’t say it wasn’t aversive. But not for everyone.
Thanks for these posting guys, it’s helping me to structure something of an argument (and notice where the flaws might be!).
My main issue is not whether in-hospital care is effective or worthwhile but is on the moral or ethical substance that justifies the indefinite nature of mental health act detention
Please keep them coming while I think up some good counters!
Input from patients and carers would also be much appreciated.
Mr Ian - mental health detention is not exactly indefinite - it has boundaries and limits placed on it and the onus is (or rather should be) on the professionals to prove their case for further detention. I appreciate that individual MHRTs may not appear to operate in this fashion, but they are expected to do so.
And anyway, renewable detention is already part of criminal justice - the Criminal Justice Act of 1991 allows for sentences that are longer than usual where issues of public protection arise.
Are you suggesting that a next of kin should recommend if/how long someone is detained?
My problems with that are two-fold. Firstly, much of the time, the next of kin doesn’t have the best interests of the patient at heart, as evidenced by the number of family members I’ve seen come in and try to get patients to sign over all their assets.
Secondly (and this was the case with my family), the next of kin may be unable to make a recommendation contrary to the patient’s wishes, for fear of retribution upon discharge.
beakie:
Good point on criminal justice tho it hasn’t reached my region yet. They have recently (2006) introduced Dangerous Prisoners (Sex Offender) Act for that very same purpose - but obviously just for sex offenders.
The CJA is specifically for those who are repeat or dangerous offenders tho who, by their evident behaviours, represent a risk. Do we require the same level or type of behaviours to be present in our patients before we seek to defer discharge? I would suggest (without a shred of evidence) we are more inclined to apply a lower thresh-hold and apply risk as a ’suspicion’ that things may go badly.
(eg : actively psychotic but not actually harming self or others leads to extended detention)
nephron:
Not sure on NoK giving terms of time for detention - it’s a thought in progress, but I agree with the abuse potential. Guardianship is a current practice that could be amended to account for that tho?
Protection of NoK/family - hmmm… that’s a strong point and I’ll have to think on that. However, my initial (and final) thought is it would be wrong to expect family to take that risk.
I suppose I could have started the post: If the MHA was abolished and an alternative process had to be found -
what might alternative involuntary admission method be? (Which is similar to what they’ve done already with the MHA UK I believe - but simply widening the powers to others?)
“My own professional experience has been that it is harder for people to get discharged from hospital from a s37 than it is to get parole from jail.”
Unless of course you are “diagnosed” with an anti social personality disorder in which case you never see the inside of a special hospital/ secure unit or iof you do it is not for very long.
http://news.bbc.co.uk/1/hi/england/1079727.stm
I have never worked in a special hospital or a prison but have visited both and if given the choice I know where I would rather spend my time.
Now there’s a whole different posting! Personality Disorder Treatments…. coming to a mental nurse site near you soon….
Thanks for the link there E. I recall the story and not sure if I recall the actual photo too - but I immediately recognised the “mental institution look” of the dying daylight casting shadows of helpless and hopeless bars upon the heavy shoulders of the despairing man in a dressing gown..
… that was probably the Charge Nurse.
Ok, I’m probably beat on the Next Generation MHA… but only by a slightly unanimous majority.
My next idea will be something like letting patients give their own depots….
My next idea will be something like letting patients give their own depots….
Apart from the awkwardness of the manoeuvres required to inject your own butt-cheek, why not? I seem to remember hearing of a patient who gave his own depots while on a long holiday in the Australian outback.
Yes, he stayed in Australia and ran a small farm out at Wolf Creek….
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