Hospitals or prisons? Treating offenders with severe mental health conditions

By Bernadette McSherry and Andrew Carroll
Wednesday 21 October 2015

How do we best protect the community from serious crime? Many would presume that the best form of protection is to keep as many offenders as possible in prison. It is clear, however, that just keeping people in prison does not prevent reoffending.  A recent report by the Victorian Ombudsman found that while over $1 billion will be spent on the Victorian prison system this year, access to programs and services has been reduced and this has been accompanied by a rise in reoffending.

Many jurisdictions, including parts of the United States, are now adopting a ‘justice reinvestment’ approach whereby some of the funds going into prisons are diverted to initiatives designed to reduce offending. The Senate Legal and Constitutional Affairs References Committee recommended that governments across Australia explore ways of implementing this approach, with the Commonwealth taking a lead role in co-ordinating support for justice reinvestment programs.

Offenders with Mental Health Conditions

Offenders with mental health conditions make up a substantial proportion of the prison population. The Victorian Ombudsman found that 40 per cent of those in Victorian prisons (2,574 prisoners) were assessed as having a mental health condition as at the 31st March 2015 and 54 per cent of the prison population was identified as having a history of suicide attempts or self-harm. An earlier New South Wales study estimated that 43% of screened prisoners in that state had symptoms that met a diagnosis of mental illness such as psychosis, affective disorder or anxiety disorder.

Despite these high estimates of mental health conditions amongst prisoners, a 2013 study from the Australian Institute of Health and Welfare found that  only 21% of “prison entrants reported that they were currently taking medication for a mental health disorder” (pg 43). A study in the United Kingdom has found that untreated psychosis is an important risk factor in recidivism and an important target for intervention to prevent violence.

Across Australia, prisoners can seek access to whatever treatment is available for mental health conditions in prison on a voluntary basis, but the treatment offered is often unavailable and/or inadequately resourced.

The Need for Treatment in Specialised Institutions

Rule 22 (2) of the United Nations’ Standard Minimum Rules for the Treatment of Prisoners states that “[s]ick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals”. Rule 82 makes it clear that those with mental health conditions should be “treated in specialized institutions under medical management”.

The World Health Organisation’s Trenčín statement on prisons and mental health sets out that “penal institutions are seldom, if ever, able to treat and care for seriously and acutely mentally ill prisoners” and that they should be transferred to specialist psychiatric care as soon as possible.

In Victoria, those prisoners who need compulsory mental health care (that is, under sections 275 and 276 of the Mental Health Act 2014) are treated at Thomas Embling Hospital, which has 116 beds and pressure for admissions is growing constantly. This is inadequate for the current prison population. While Victoria has roughly the same population as Scotland and a slightly higher GDP, it has only approximately one third the number of secure forensic beds. Seventy-five forensic mental health “beds” are planned for Ravenhall Prison which is due for completion in late 2017, but these will not be part of a separate specialised institution under medical management, and hence will not ease the pressure on Thomas Embling Hospital.

Hospital or Prison?

So why not simply provide compulsory treatment in prison? There are numerous reasons why not.

Alexander Simpson has made the point that prisoners with mental health problems should be treated in a hospital because it provides a therapeutic context for treatment, as opposed to “the stressful non-therapeutic environment of prison” (p. 111). He states that if compulsory treatment is allowed in prison, there is a danger of:

The confusion of agency, treatment to meet institutional needs rather than the needs of patients, treatment that ensures that the person remains in an aversive context and confusion of therapeutic and punitive applications of coercion…” (p 112).

Many prisoners with mental health conditions have already suffered significant trauma and the forcible administration of medication in the coercive environment of prison would only exacerbate this, leading to adverse long term outcomes and their likely disengagement from mental health services post-sentence.

If prison officers become involved in assisting with injections of antipsychotic and like medication, significant risks such as over-sedation and the possibility positional asphyxia through physical restraint arise; risks that are very carefully managed in psychiatric hospitals every day.  The conflation of clinical and custodial roles would also upset the delicate balance that allows clinical psychiatric services to function in prison settings in humane and effective way: there would be a loss of therapeutic trust between prisoners and clinicians who work in prisons, necessary to manage risks such as suicide and self-harm, as the latter become seen as just part of the prison system. Prisoners would soon learn that disclosing mental distress may, ultimately, result in their being administered forcible medication in a non-therapeutic setting, such that they would not disclose symptoms at an early and more readily treatable stage.

The Way Forward

The Victorian Ombudsman made it clear that:

“the number of specialised mental health facilities in Victorian prisons are inadequate to meet the needs of prisoners with mental health issues. This results in an increased risk to the safety of the prisoner, staff and other prisoners” (p. 149).

The best way to stop reoffending is to take a justice reinvestment approach. Resources should be put in to adequate treatment programs and more secure hospital beds. Otherwise, the endless cycle of reoffending will continue.

Professor Bernadette McSherry is Foundation Director, Melbourne Social Equity Institute and Adjunct Professor of Law, Melbourne Law School. Andrew Carroll is Associated Professor at the Centre for Forensic Behavioural Science, Swinburne University and a consultant forensic psychiatrist.