Disclaimer: These notes are for guidance only. We cannot be held responsible for any action taken as a direct result of information contained herewith. we would always recommend that expert legal advice is sought. Please see our introduction page for more information.

Introduction

A Police Complaints Authority submission to the third report of the Parliamentary Human Rights Select Committee, indicates that between 1998 and 2003, of 153 deaths in police custody, 48% had consumed alcohol prior to arrest; toxicity (drugs and/or alcohol) was cited as cause of death in one third of cases; over half had prior indications of mental health problems and three out of sixty deaths surveyed in more depth, were of persons apprehended [or arrested] to be brought to a place of safety under section 136 of the Mental Health Act 1983.

During the period 1997 and 2000, a Mental Health Act Commission investigation ‘Deaths of Detained Patients in England and Wales’ found that there were 233 deaths from unnatural causes of people detained under the Mental Health Act 1983. Many of these deaths were suicides or misadventure and took place in the community whilst patients were on approved leave or unauthorized absences. The National Inquiry into Suicides and Homicides by Mentally Ill People in its report in May 1999 noted that 28% of suicides in the community were of people who had lost contact with mental health services, around half had a second diagnosis and 17% were misusing both alcohol and drugs. The report notes that 14% of people convicted of homicide (for whom reports are available) had symptoms of mental illness at the time of the offence.

Research published in July 2002 in a Social Exclusion Unit report on re-offending by ex-prisoners indicated that prisoners have significantly higher health problems than the national average, with over 70% suffering from two or more mental disorders, 60 to 70% using drugs prior to imprisonment, and 20% of male and 37% of female prisoners having attempted suicide in the past. Each year 50 ex-prisoners commit suicide shortly after release!

Similarly, levels of education are well below average with prisoners being ten times more likely to have been a truant and many displaying literary and numeracy skills well below their chronological age. The level of learning disability or learning difficulty amongst offenders has not been fully quantified but given the Social Exclusion Unit statistics; it is likely that numbers will be well above the national average.

A person’s external presentation may not always reflect their underlying feelings and thus their potential reaction to current events. The body language they display may be misinterpreted, particularly if a person has difficulty showing their true emotions or is frightened and insecure. This has clear dangers for anyone involved with the restraint or care of potentially violent individuals and can, conversely cause an unnecessary level of force ‘just in case’. However, knowing the details of any underlying conditions and the history of a person’s past behaviour can give clues to what is likely to be their response again. This requires individuals and organisations to make such details available where this is required in the overriding public interest and possibly in the interests of the individual if they lack capacity to consent.

From the above, it will be clear that ill health or illness could impact on the criminal justice and secure healthcare systems in several ways, some examples are below:

• Where mental illness or learning disability are of sufficient seriousness to warrant a ‘diminished responsibility’ defence, as outlined in the Homicide Act 1957.
• Where a person is found ‘unfit to plead’ in criminal proceedings, or where s/he successfully pleads a defence of ‘insanity’, and an order is made for his/her compulsory admission to hospital under the Criminal Procedure (Insanity) Act 1964 (as amended).
• Where, upon conviction, a person suffering from mental disorder is made the subject of a Hospital Order, or where a prisoner is transferred from hospital, and is admitted to hospital under the Mental Health Act 1983.
• Where mental illness, learning disability or learning difficulty is likely to impact on the prisoner’s or patient’s ability to cope with custody or hospitalisation, thus placing them at increased risk of being bullied or of self-harming.
• Where a previous reaction to home leave, R.O.T.L., etc. gives some indication as to how they might cope without the support of an institutional setting.
• Where mental illness, personality disorder or offending behaviour carries a risk of violence against others.
• Where a history of substance misuse may result in problems for the patient/offender when access to the substances is withdrawn.
• When physical illness requiring timely access to medication, suitable diet etc. is compromised (Diabetes), or where physical reactions to circumstances may place the person at risk (Epilepsy, Asthma).

Given the likely high numbers of suspects, offenders & patients suffering from some form of illness or disorder and the potential tragedies that can ensue when things go wrong, it is essential that individuals and organisations consider passing on information if this is in the interests of the prisoner/patient or in the overriding public interest, and provided it is lawful in a particular case. Some of the current shortfalls in providing continuity of care to offenders and how these are to be addressed are described in the NOMS National Action Plan Pathway 3 on Mental and Physical Health. A specific objective is that there will be a greater availability of relevant healthcare information for other services, improving their ability to deliver needs based care.