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The Mental Capacity Act and mental healthcare in prison: opportunities and challenges

  • Sharon Davies (a1) and Claire Dimond (a2)
Summary

The UK Mental Health Act 1983 does not apply in prison. The legal framework for the care and treatment of people with mental illness in prison is provided by the Mental Capacity Act 2005. We raise dilemmas about its use. We highlight how assessing best interests and defining harm involves making challenging judgements. How best interests and harm are interpreted has a potentially significant impact on clinical practice within a prison context.

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Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution (CC-BY) license (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
Corresponding author
Sharon Davies (sharon.davies@wlmht.nhs.uk)
Footnotes
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See commentary, pp. 243–244, this issue.

Declaration of interest

None.

Footnotes
References
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1 Fazel, S, Danesh, J. Serious mental disorders in 23 000 prisoners: a systematic review of 62 surveys. Lancet 2002; 359: 545–50.
2 Wilson, S, Forrester, A. Too little too late? The treatment of mentally incapacitated prisoners. J Forensic Psychiatry 2002; 13: 18.
3 McKenzie, N, Sales, B. New procedures to cut delays in transfer of mentally ill prisoners to hospital. Psychiatr Bull 2008; 32: 20–2.
4 Earthrowl, M, O'Grady, J, Birmingham, L. Providing treatment to prisoners with mental disorders: development of a policy. Selective literature review and expert consultation exercise. Br J Psychiatry 2003; 182: 299302.
5 Curtice, M, Sandford, J. Article 3 of the Human Rights Act 1998 and the treatment of prisoners. Adv Psychiatr Treat 2010; 16: 105–14.
6 Curtice, M. The European Convention on Human Rights: an update on Article 3 case law. Adv Psychiatr Treat 2010; 16: 199206.
7 Owen, GS, Szmukler, G, Richardson, G, David, AS, Hayward, P, Rucker, J, et al. Mental capacity and psychiatric in-patients: implications for the new mental health law in England and Wales. Br J Psychiatry 2009; 195: 257–63.
8 Forrester, A, Chua, K, Dove, S, Parrott, J. Prison health-care wings: psychiatry's forgotten frontier? Crim Behav Ment Health 2010; 20: 5161.
9 Department for Constitutional Affairs. Mental Capacity Act 2005 Code of Practice. TSO (The Stationery Office), 2007.
10 HM Inspectorate of Prisons. Thematic Report by HM Inspectorate of Prisons: The Care of Looked After Children in Custody. A Short Thematic Review. HMIP, May 2011.
11 Marshall, M, Lewis, S, Lockwood, A, Drake, R, Jones, P, Croudace, T. Association between duration of untreated psychosis and outcome in cohorts of first-episode patients: a systematic review. Arch Gen Psychiatry 2005; 62: 975–83.
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BJPsych Bulletin
  • ISSN: 1758-3209
  • EISSN: 1758-3217
  • URL: /core/journals/bjpsych-bulletin
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The Mental Capacity Act and mental healthcare in prison: opportunities and challenges

  • Sharon Davies (a1) and Claire Dimond (a2)
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eLetters

Striving for equal healthcare for prisoners

Aamir Ehjaz, Clinical Director - Forensic Mental Health Services
14 August 2012

Whilst I admire the positive efforts of Davies & Diamond (1), my views are more aligned with those expressed by Wilson (2). The Mental Health Act (MHA) 1983 (as amended) does indeed apply in prisons. I have some further points to raise.

Clinicians working in prisons are likely to be aware of common debates between the healthcare workers and other staff. Firstly, the status (prisoner versus patient) of a detained person; secondly, the related issue of health needs versus security needs - in practice, it is often the non-healthcare staff whose views prevail.

An important point to remember is that early active treatment of psychotic symptoms is not always desired. The initial concerns are oftenreported by prison officers with variable (often too little) training in mental health issues and can be unreliable. Even when observed correctly, symptoms do not necessarily indicate one specific diagnosis - psychiatric expertise is required for a careful evaluation. This is best carried out in hospital as prisons restrict movements (and behaviours) even on healthcare wings, making mental state examinations difficult.

The use of injectable medications requires monitoring and psychiatricreviews which, put mildly, are not easily carried out in prison settings. Davies & Sharon advocate depot medication in order to avoid repeat injections; this argument does not hold as medication in the format of short acting injections may still need to be administered repeatedly whilst the depot takes time to have its desirable effects.

Furthermore, the desirable effect may be a problem in itself. In the absence of adequate safeguards, I fear a slippery slope scenario. The use of depot psychotropic medication for non-psychiatric reasons maybecome a common place in prisons.

Although there has been some progress, the services afforded to patients in prisons still fall short when we review issues such as length of time taken to transfer people from prison to hospital and when it comesto the provision of psychological therapies in prisons.

In my view, the management plans, where indicated, should include an early transfer to a hospital setting under the available provisions of theMHA. This approach will help us to achieve the much discussed healthcare equivalence for prisoners that has been advocated for more than a decade(3). This practice also upholds the principles endorsed by Lord Bradley (4).

References :

(1) Davies S, Diamond C. The Mental Capacity Act and mental healthcare in prison - opportunities and challenges. The Psychiatrist 2012; 36: 241-243

(2) Wilson, S. Commentary on ... The Mental Capacity Act and mental healthcare in prison. The Psychiatrist 2012; 36: 243-244.

(3) Department of Health (2001) Changing the outlook - a strategy fordeveloping and modernising mental health services in prisons, London: DH.

(4) Bradley K (2009) The Bradley Report: Lord Bradley's review of people with mental health problems or learning disabilities in the criminal justice system, London: DH.

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Conflict of interest: None declared

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A Scottish Perspective on Mental Healthcare in Prison

Daniel M. Bennett, Clinical Lecturer in Psychiatry and Honorary Specialty Registrar in Forensic Psychiatry
16 July 2012

I read the summary of the article by Davies and Dimond (1) with great enthusiasm as it appeared to be relevant to "the UK", however within the same sentence my excitement was extinguished as it appears that the UnitedKingdom was taken as a synonym for England and Wales. Although this appears not to have been the intention of the authors, and may appear to be a parochial distinction, the provision of mental health care, and the relevant legislation, is distinct in Scotland and Northern Ireland, and sadly this was not addressed in the article.

In Scotland, the Mental Health (Care and Treatment)(Scotland) Act 2003 is the relevant legislation. This Act, like the Mental Health Act 1983, contains provision for the transfer of prisoners who require treatment in hospital by means of a Transfer for Treatment Direction (TTD). This is considered the usual method of care for those prisoners who require compulsory treatment or treatment in hospital (2). The Code of Practice which accompanies the Act states that there is no legal impediment to the informal or voluntary transfer but that a TTD is preferable (2). The criteria for making a TTD are: prisoner has a mental disorder; medical treatment which would likely prevent the mental disorderworsening or alleviate any of the symptoms or effects is available; if they were not provided with treatment there would be a significant risk tothe health, safety or welfare of the prisoner, or the safety of another person; and the making of the TTD is necessary. The prisoner must be examined by two medical practitioners one of whom must be an 'Approved Medical Practitioner' under Section 22 of the Act.

Davies and Dimond point out that although the provision for transfer is available in England and Wales there is often a delay in this occurring. This appears to be less of an issue in Scotland where there are approximately 30 transfers per year to hospital from the prison estate (3). A recent Mental Welfare Commission for Scotland report cited 'rare' reports of prisoners waiting two or more months3. Although this isan undesirable delay it is less than the mean wait of 77 days for transferreported in one study from England (4).

The Adults with Incapacity (Scotland) Act 2000 introduced provision for adults who lack capacity to have treatment authorised. This Act is unlikely to be used to provide treatment, by force, for mental disorder, to a prisoner given the other procedures for transfer for treatment.

The principles raised by Davies and Dimond regarding early access to independent advocacy would apply and would certainly be best practice. The Mental Welfare Commission for Scotland also has a role in monitoring the care provided to prisoners suffering from mental health problems.

I hope that this short letter provides some information of interest for readers, like me, who hoped a whole UK perspective may be provided in the thought provoking article by Davies and Dimond.

References1Davies S, Dimond C, The Mental Capacity Act and mental healthcare in prison: opportunities and challenges, The Psychiatrist, 2012, 36:241-243; doi:10.1192/pb.bp.111.0369882Scottish Executive. Mental Health (Care and Treatment)(Scotland) Act 2003: Code of Practice (2005) Scottish Executive ISBN 0 7559 4568 93Mental Welfare Commission for Scotland (2011), Mental Health of Prisoners, http://www.mwcscot.org.uk/media/53235/Mental%20health%20of%20Prisoners%202011.pdf4McKenzie N, Sales B, New procedures to cut delays in transfer of mentally ill prisoners to hospital, The Psychiatrist, 2008, 32: 20-22 No Competing Financial Interests

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Conflict of interest: None declared

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