Early release

Guiney (Reference Guiney2018) has observed that in contemporary Western societies most prisoners will achieve early release before the end of their sentence. The parole process, involving discretionary release, community supervision and threat of recall, has become an established part of the sentencing framework for England and Wales. Tracing its history, Guiney (Reference Guiney2018) describes several phases in its development, shaped by changing societal and political beliefs and attitudes to crime and punishment, ranging from optimism concerning rehabilitation of offenders (in the 1960s) to contemporary emphasis on punishment and containment of ‘dangerous’ offenders.

Despite its benefits and widespread use (Box 1), parole is subject to critical review (Guiney Reference Guiney2018; Padfield Reference Padfield2020). Advocates of ‘truth in sentencing’ argue that the sentence should mean that the stipulated term be served: life should mean life and a determinate sentence should be served in full rather than employing early release (although recent reforms mean that judges in England and Wales now explain the minimum custodial term and the licence period when passing sentence). If an individual is recalled following early release, delays in the system, lengthy periods for professional judgement on risk to be made and limited availability of rehabilitation combine to lead to a long period in custody – in essence a prolongation of confinement in custody, (re)sentencing by the back door. Guiney (Reference Guiney2018) cites the principle that ‘the greater the authority concentrated in the prison release decision, the greater the need for procedural regularity’, leading to arguments for parole to be a fully fledged judicial process (Padfield Reference Padfield2020).

Parole decisions and risk

Parole decisions are about risk. In England and Wales, the test for release is that the Parole Board must not give a direction for release unless it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined in prison (Legal Aid, Sentencing and Punishment of Offenders Act 2012: section 125). The test is contested on the grounds of concerns regarding the accuracy of clinical, actuarial or structured professional judgement (SPJ), leading to concern that the offender is at the mercy of individual variation in professional judgements of risk.

The use of SPJ risk assessment tools such as the Historical Clinical Risk Management-20 scale (HCR-20) and Violence Risk Appraisal Guide (VRAG) within the Parole Board process requires some reflection. These SPJ assessments are clinical tools whose original purpose is completely different from how they are being used to determine levels of risk to inform a decision on release from prison. The limitations of the HCR-20 used in this context have been recognised (Vojt Reference Vojt, Lindsay and Thomson2013; Singh Reference Singh, Fazel and Gueorguieva2020). Singh et al (Reference Singh, Fazel and Gueorguieva2020) found that among those identified as high risk by SPJ tools including the HCR-20, subsequent rates of violence were more dependent on local factors and SPJ could not be relied on to predict future violence. Vojt and colleagues (Vojt Reference Vojt, Lindsay and Thomson2013) found that the HCR-20 could not predict violence either in hospital or the community in a population of male patients in a high secure hospital. Singh et al concluded that SPJs did not ‘assign reliably a predetermined numerical probability to the potential for an individual to act violently’. Yet this is exactly how they are used for Parole Board hearings. Instead, risk assessment should inform risk management, with the HCR-20 used to generate scenarios to be used for risk management planning and not to generate a risk probability score.

Mental disorder as a risk factor for reoffending/community failure following release by a parole board

In their 2016 worldwide review of the mental health of prisoners, Fazel and colleagues stated that ‘Research has consistently shown that prisoners have high rates of psychiatric disorders, and in some countries more people with severe mental illness are in prisons than in psychiatric hospitals’ (Fazel Reference Fazel, Hayes, Bartellas, Clerici and Trestman2016). The last major study in England and Wales (Singleton Reference Singleton, Meltzer and Gatward1998) found levels of mental disorder in prisoners similar to those found in other countries’ prisons and significantly higher than in the wider community: there is no reason to suppose levels have diminished in the 25 years since this work was undertaken. Nevertheless, the House of Commons Justice Committee report on mental health in prisons concluded ‘there is no clear picture of the extent or nature of mental ill health in prisons’ (House of Commons Justice Committee 2021: para. 6).

An important study carried out in 2007–2009 (Jakobowitz Reference Jakobowitz, Bebbington and McKenzie2017) assessed the treatment needs of a sample of prisoners in both a male and a female prison in London. They found that most of the prisoners had a mental disorder that affected their behaviour and functioning, which should be treated. They concluded:

What are the implications of high levels of mental illness in prisoners? Until recently, it was not known whether this increased their risk when released. Chang and colleagues investigated the association between psychiatric disorders, including substance use disorder, and violent reoffending in over 47 000 prisoners released in Sweden (Chang Reference Chang, Larsson and Lichtenstein2015). They found that all psychiatric disorders were associated with increased risk of violence, with greatest risk in the case of alcohol and drug misuse.

The findings of Chang et al (Reference Chang, Larsson and Lichtenstein2015) led Appleby and colleagues to explore the role of psychiatric disorders in the high reoffending rates of released prisoners. They concluded that ‘treatment of psychiatric disorders in prisons and on release is crucial but will not be enough to bring about a major reduction in violent crime’ (Appleby Reference Appleby, Roscoe and Shaw2015). They recommended that treatment, including aftercare, should include social support to address the complexity of these offenders’ problems, with a coordinated risk management plan involving multiple agencies.

Bebbington et al (Reference Bebbington, McManus and Coid2021), reviewing the mental health of ex-prisoners, stated that ‘recidivism seems likely to be linked to the mental health and social situations characteristic of released prisoners’. A meta-analysis of risk factors for recidivism in offenders sentenced to community sentences (Yukhnenko Reference Yukhnenko, Blackwood and Fazel2020) found that mental health needs and substance misuse, among other things, were dynamic risk factors for reoffending. They concluded that both factors are ‘modifiable’ and therefore intervention could reduce that risk. But, of course, this relies on being able to ensure good mental health support in the community.

We were unable to identify high-quality systematic research into the needs of offenders with mental health problems subject to long sentences and whose release is determined by parole board decisions on risk. A natural experiment, the introduction of a new indeterminate sentence in English law called imprisonment for public protection (IPP) has allowed some examination of the needs of long-term indeterminate prisoners. Our purpose was not to critique the sentence itself but instead to use the population of IPP prisoners remaining in custody to explore the needs of long-sentence prisoners (for a critique of the IPP sentence, along with a summary of its history and consequences, see House of Commons Justice Committee, 2022). The IPP sentence, which came into force in April 2005, introduced a novel type of sentence which was based not on ‘just deserts’ but on future dangerousness. By 2010 the government acknowledged that the treatment of IPP prisoners was not defensible, and this led to the abolition of IPP for new convictions in December 2012. In practice it left in prison a substantial number of IPP prisoners (1492 by September 2022) who had never been released, remaining in prison well beyond the tariff set for their sentence, with now almost the same number (1434) who had been released and subsequently recalled while under supervision in the community (House of Commons Justice Committee 2022: p. 3) (for review of recalled prisoners see Edgar et al, Reference Edgar, Harris and Webster2020).

IPP prisoners remaining in custody remain subject to the Parole Board test for release. Parole Board members have noted the high prevalence of mental disorder in this group. This has been confirmed by several reviews (Sainsbury Centre for Mental Health 2008; HM Inspectorate of Prisons 2016). All found an increased proportion of IPP prisoners with mental disorder compared with the general prison population.

In respect of recalled IPP prisoners HM Inspectorate of Prisons (2016) found ‘anecdotal evidence that gaps in the provision of some key community services, for example mental health services, can lead to a breakdown of the release plan’, i.e. recall to prison was because of unmet mental health needs. Their report makes recommendations that we endorse and that apply equally to other long-sentence prisoners with complex needs who are ‘stuck’ in the system. The report recommended that probation risk management plans for release should take account of mental healthcare needs. It identified a need for specific commissioning of community aftercare services tailored to the needs of released offenders. For ‘stuck’ IPP prisoners, the report recommended that hospital rehabilitation should be provided in selected cases to prepare the offender for community release and aftercare. Current mental health legislation on transfer to hospital of serving prisoners does not allow parole panels to direct or recommend such transfers, although panels can direct reports to assess need for treatment.

Although new IPP sentences are no longer passed, similar problems are seen in prisoners with complex mental disorders who are now sentenced to extended determinate sentences (which have replaced IPP sentences). They will often have been released, recalled to prison and have a Parole Board review as a result.

The experience of Parole Board psychiatrists is that too often it appears that prisoners with complex mental disorder who have active symptoms of mental illness are unable to meet the test for release because they are assessed as not needing transfer to hospital for treatment and rehabilitation and/or they do not have an aftercare plan for their management in the community. Community mental health team policies routinely preclude acceptance of a referral for a prisoner until the individual is in the community and registered with a general practitioner. Contractual arrangements for the commissioning of community forensic service often limit their provision to those who have progressed through forensic secure hospital services, ignoring the more complex and higher-risk prison releases, whose only support may be less well-resourced and less risk aware community mental health teams (CMHTs), with protocols leading to early discharge from case-loads of those who fail to keep appointments.

Complexity of mental disorder

Tyrer & Mulder (Reference Tyrer and Mulder2022: pp. 57–68), examining comorbidity between personality disorder and other conditions, conclude that there is considerable overlap between personality disorder and psychiatric disorder (including substance use disorders) and identify a model, a ‘spectrum or co-aggregation', to describe this complexity. This model implies that personality disorder and psychiatric disorder overlap phenomenologically and ‘are simultaneously expressed in the same person’. IPP prisoners remaining in custody exemplify this with patterns of behaviour and mental state abnormalities arising from pre-existing conditions augmented by the traumatic effects of the indeterminacy of the sentence, loss of hope and resentment at the unfairness of being held in prison long after their tariff has expired. Their behaviour, which can include significant self-harm and high levels of anxiety, is associated with disruptive behaviour and difficulty engaging with the prison regime and prison-based treatment programmes. Although many exhibit marked mental state changes, they are usually held not to reach the threshold for transfer to hospital for treatment. Duggan & Tyrer (Reference Duggan and Tyrer2022) conclude that mental health services provide treatment services for specific disorders, usually requiring commitment to treatment, but do not have management systems to engage and manage those with complex needs. The result is that such prisoners become ‘stuck’, unable to demonstrate that they have made sufficient progress and/or have a community management plan in place to manage their complexity.

Hospital transfers

One group of prisoners who present challenges at Parole Board hearings are those who have been transferred to hospital for treatment under mental health legislation and are subsequently remitted back to prison. The scale of this has increased over the past two decades. In 2003, 96 patients were remitted back to prison; by 2019, this number had tripled to 295 (Ministry of Justice 2020a). Over the same period the number of transfers to hospital of sentenced prisoners doubled from 489 in 2003 to 1039 in 2019. The reason for the disproportionate increase in remitted prisoners is not understood, but the potential impact on Parole Board hearings can be inferred from some recent work by the Offender Research Network. Leonard and colleagues prospectively studied a cohort of patients who were remitted to prison from NHS medium secure units in England (Leonard Reference Leonard, Webb and Shaw2020). They summarised previous work as follows:

Leonard et al (Reference Leonard, Webb and Shaw2020) found that 28% of remitted patients were sent back to prison because they were assessed as ‘not engaging with treatment’ or because they were too high risk to remain in a medium secure unit. But a subsequent study confirmed that they had not been referred to high secure services (Leonard Reference Leonard, Sanders and Shaw2021). They also found that remittal to prison resulted in a loss of access to aftercare, for example several of their cohort were remitted close to their earliest release date or parole eligibility date, and they questioned why these patients did not remain in the medium secure unit to be released from there, which may well have ensured a more successful discharge to the community. It is unclear whether services subsequently met their obligations under section 117 of the Mental Health Act 1983, which entitles individuals detained under the Act to continued aftercare services on discharge. Section 117 aftercare applies both to those discharged from hospital to the community and to those remitted back to prison. The remitting team's responsibility for review and aftercare under section 117 is rarely acknowledged in post-remission care planning: ‘out of sight, out of mind’.

This resonates with our experience of prisoners who were remitted to prison and were told at their subsequent Parole Board hearing that they were not eligible to be supported by the local forensic outreach and liaison service team because that was available only for patients discharged directly from the medium secure unit, even though their needs were identical to those patients.

Community aftercare of offenders released on parole

A recent study which analysed a sample from the 2014 English National Survey of Psychiatric Morbidity (Bebbington Reference Bebbington, McManus and Coid2021) examined the mental health of ex-prisoners and found that they had ‘extremely high rates’ of mental disorder, including psychosis. The authors concluded that:

They acknowledged that this level of liaison has not happened, and to facilitate it they recommended that the prison mental health team should have a lead role in managing release. This can only work if the prison team has sufficient power to direct aftercare; otherwise they are helpless in the face of protocols that allow engagement only when the individual is established in the community. A joint thematic inspection of the criminal justice ‘journey’ for individuals with mental health needs and disorders (HM Inspectorate of Probation 2021) highlighted a number of deficiencies, including that the continuity of mental healthcare from custody into the community is generally poor and that the waiting lists for community mental healthcare are very long: in one example it took 24 months to be seen. The authors concluded that prisons are served by a poorly performing and disjointed system. They suggested that because of the length of these waiting lists, mentally ill people released on licence would often be recalled to prison because their mental health deteriorated before they could be assessed by the community team, supporting the previous conclusion of Edgar et al (Reference Edgar, Harris and Webster2020).

An example of good liaison and joint working between mental health services and the National Probation Service (NPS) is described by Bourn et al (Reference Bourn, Rajput and Field2015). Although much of this work was focused on community sentenced offenders, it also included an innovative ‘approved premises’ managed by the NPS but set up in partnership with the local forensic secure service, specifically for mentally disordered offenders released from prison.

Psychiatrist as Parole Board member

The psychiatrist member when sitting on parole hearings is discharging a judicial role. They are expected to use their psychiatric knowledge and experience to help the panel understand professional and expert psychiatric evidence, advise on its reliability and lead questioning of clinical witnesses (both psychiatrists and psychologists) and usually also of the prisoner if the individual has a history of mental disorder. They do not conduct a psychiatric assessment of the offender, confining their role to their judicial function. The psychiatrist member will contribute in other ways, such as appraising the capacity of offenders to participate effectively in proceedings, advising on modifications to the hearing process to take account of vulnerabilities and applying their knowledge to better direct the content of professional and expert witness reports. Where expert or professional psychiatric and psychology opinions are not in agreement, the psychiatrist panel member will play a pivotal role in judging which opinion the panel relies on when reaching their decision.

Although their role as a panel member is a judicial role, the psychiatrist member retains their registration; they are still inescapably a doctor. However, the psychiatrist member does not carry out a clinical examination of the prisoner. There may be tension between their judicial and clinical roles. Parole panels have neither powers nor obligations to take steps to address deficiencies in treatment provided or availability of treatment and aftercare. However, the psychiatrist member of the Parole Board will nevertheless as a doctor have a duty to try to ensure that prisoners receive proper assessment or treatment and aftercare for their mental disorder. Dual responsibility is an inescapable ethical dilemma for Parole Board psychiatrists (Box 3). The psychiatrist member generates evidence through professionally informed interviewing and then uses that evidence to decide on release, thus further blurring their judicial and professional duties.

Psychiatrist as professional witness

Most psychiatric reports that parole panels require, from either in-reach prison teams or catchment area services, address one of two areas: either the prisoner's current psychiatric treatment needs and how these can be met in prison or through hospital transfer, or advice on continuing treatment needs and availability in the community, if release can be directed (see the section above on Community aftercare). Community teams assert that they do not have a duty, or have the capacity, to provide reports to parole panels on aftercare while the prisoner remains detained. In-reach teams are obliged, for patients under their care, to provide advice on need for continuing aftercare but do not have powers to direct that care in the community, limiting the usefulness of such reports for parole purposes. For prisoners who may be treatment avoidant and not in contact with in-reach, obtaining a clinical review for parole hearings can be exceedingly difficult. These significant gaps in what should constitute routine clinical care result in delays in panels receiving full information before making decisions, thus in practice resulting in prisoners remaining in custody while the panel endeavours to resolve the issue.

Community general and forensic psychiatrists providing evidence as professional witnesses on treatment availability and community aftercare often do so with multiple and conflicting roles and responsibilities. In the public health system, the psychiatrist has obligations to the state to fairly distribute health resources and thereby acts as a gatekeeper to psychiatric healthcare. They will have duties to their team to ensure that their service does not accept responsibility for patients they feel they cannot manage. The psychiatrist may have had previous contact with the prisoner, for example providing reports at time of sentence or may have had previous clinical responsibility. This makes providing professional evidence to parole hearings a complex clinical activity (Box 3). There is a temptation for gatekeepers to services to concentrate on one facet of a complex presentation to deem the offender as unsuitable for their service, resulting in no offer of treatment or continuing community care (Duggan Reference Duggan and Tyrer2022).

Guidance for in-reach teams (which in our opinion applies to all professional witnesses) on providing an opinion on risk is available (Box 3); that advice is that they should not express an opinion on risk for release (Ministry of Justice 2020b: section 5.6.18). However, risk assessment is a routine part of clinical practice, for example to decide whether a team can safely manage a patient, and must therefore form part of the professional witness's evidence. We interpret this to mean that the report writer is not expected to and should not express an opinion on suitability for release but can and should disclose any risk evaluation conducted as part of their clinical review, thus contributing to the parole panel's assessment of whether the offender meets the test for release.

Psychiatrist as expert witness

There are no specific procedural rules governing expert witnesses in Parole Board hearings in England and Wales as there are for criminal courts. Rix et al (Reference Rix, Mynors-Wallis and Craven2020) provide detailed guidance for witnesses to criminal courts, including procedural rules that govern admissibility of evidence and duties of an expert witness. We consider that the standards and rules governing expert evidence to criminal courts (Rix Reference Rix, Mynors-Wallis and Craven2020) apply equally to evidence to parole hearings, although they are not laid down in statutory instruments.

Although expert witnesses should provide opinion only within their area of expertise, for parole board hearings, because of the complexity of many offenders, area of expertise needs to be generously interpreted. Experts to the Parole Board will need to encompass all aspects of a complex presentation. Reports need to be focused on the specific issues that lie outside the ‘knowledge and experience’ of Parole Board panels, taking account of the inherent expertise available through having a psychiatrist member. The panel will have considerable knowledge of the impact of personality disorder and substance misuse on the risk of long-term offending. What is needed is preparedness to engage with complexity and with treatment-avoidant offenders, and at times to advise of differences in view between, for example, mental health in-reach teams and catchment area services.