Independent Forensic Mental Health Review: interim report

8 Criminal justice

8.1 Mental health care and assessment in police custody

Police are responding to a demand for mental health related services which they do not feel best placed to meet. People often come to police attention when out of hours mental health services have failed to respond to their needs. The review was told that 41% of people in police custody self-disclose previous mental health issues, with 31% disclosing previous attempts of suicide or self-harm. Lack of access to or coordination with mental health services when responding to a person exhibiting mental health problems can create substantial demands on police time. For example, one officer described spending whole shifts escorting and waiting for people to be assessed at A&E. They also said they did not receive enough training in mental health issues but had been 'self-taught' through the experience of working with people in crisis.

Police aim to conduct a full physical and mental needs assessment when someone enters custody. This assessment is usually done by a duty healthcare professional such as a GP or nurse. It can happen on-site in police custody or off-site at a hospital, depending on the area. Referral processes are in place for when further assessment by a mental health professional is needed. These vary between different NHS Boards and custody centres. People may, for example, need to be taken to hospital or a professional may attend the custody suite.

People supported the development of Liaison and Diversion Services to help identify people with mental health problems earlier and divert them away from further interactions with the police and criminal justice system. Many NHS Boards are using the Scottish Government's Mental Health Strategy Action 15 funding to increase mental health nursing provision in custody and improve the pathways.

People with lived experience spoke of times the police had not responded to their mental health problems effectively and family members described a lack of support. Negative experiences included failures to keep family members informed, acting against family members' advice, denial of medication while in custody and releasing people without ensuring that they accessed mental health services. One family member said she did not pursue complaints about the police because she did not believe they would have an impact.

People said the availability and quality of support for people with mental health issues in police custody needs to be examined. Guidance to local authorities issued earlier this year says that AAs should attend requests with minimum delay and ideally within 90 minutes.^[21] Advocacy services felt it would be challenging to meet this target. People described previous instances where no AA was available and interviews needed to be rearranged. There were also concerns that information from AA reports is not held centrally or easily retrievable.

8.2 Court proceedings

People want more consistent joint working arrangements between forensic mental health and criminal justice services. These are needed to support timely, high quality assessments and reports in the criminal justice system.

8.2.1 Assessments and reports for the courts

Timely access to high quality mental health assessments and reports is vital to the smooth running of the criminal justice system. It affects access to fair process and appropriate care and treatment for people who are accused of offences. At present, there is no nationally agreed process for conducting mental health assessments in the criminal justice system. Regional variations in practice contribute to uncertainty, delays and frustration. People linked this with poor working relationships and lack of quality assurance of the assessments and reports provided. Multiple submissions called for the introduction of stronger governance to remedy the difficulties which arise from inconsistent practices.

People noted significant issues in arranging both initial and formal mental health assessments and reports for people subject to court proceedings. The availability of medical practitioners for initial assessments can be restricted to narrow time frames. This means people have to spend additional time in custody whilst awaiting initial assessment. Some people said places available in custody and courts were not always conducive to making mental health assessments. In some areas, initial assessment is conducted by 'paper triage' based on available medical records. Some felt that this creates a risk that no medical practitioner will attend an individual in custody with mental health issues.

The absence of a framework for obtaining formal psychiatric reports causes difficulties. It is the Crown Office and Procurator Fiscal Service who need to arrange them prior to and during hearings and the Scottish Courts and Tribunal Service when they are required to inform court disposals. Although some local arrangements are in place, NHS psychiatrists are not generally contracted to provide court reports. There is also no standardised system of payment for reporting services. They must either do it as 'private work' or the courts must source independent provision. Some people felt that clinicians' reluctance to do this work could be linked to the comparative low rate of pay. This all means that courts sometimes have to make requests to multiple requests before someone accepts, adding to delays that can be well in excess of the statutory requirements. Even where a psychiatrist agrees to prepare a report, it takes time to provide it. Delays in obtaining reports cause disruption in the court system. They incur additional costs and cause delays in accessing care and treatment for accused persons, who often have their cases continued whilst reports are prepared.

Difficulties obtaining reports mean that courts often rely on trainee psychiatrists, non-forensic psychiatrists or independent (non-NHS) provision. This raised concerns about consistency and quality. It also means the reporting psychiatrist may not be able to source suitable hospital provision, if required. Independently produced reports may not be made available to the NHS or may not be accepted by them. This risks repetition of complex assessments for the individual concerned, which is not thought to be in their best interest.

The absence of governance around provision of court reports causes tensions between the justice and health services. People in criminal justice sought the creation of a national framework or even a statutory duty on NHS Boards to manage report provision. Healthcare professionals noted soured relations with the courts as a result of 'requests' that feel like demands, and gave the example of Sheriffs demanding that health staff appear in court.

Courts said that they did not have issues obtaining social work reports. However, MHOs wanted a more consistent and robust process for managing these reports at a national level. In particular, they asked for courts to inform local authorities more promptly of decisions that require an MHO to be appointed. This would allow them the maximum time available to fulfil their statutory reporting duties.

People questioned whether clerks in court have sufficient training about the types of assessments and reports available, as often the requests were not clear. Some people felt that decision about whether to request a psychiatric or a psychological reports may be based on how easy each is to get, rather than consideration of which is more appropriate. One family member observed that Sherriff courts may send people to locked wards for assessment, even where they have an established history of mental health problems.

8.3 Mental health services in prisons

Responsibility for healthcare services, including mental health services, in prisons transferred to the NHS in 2011. One of the aims of the transfer was to ensure that people in prison received the same level of care as the general population. The Scottish Prison Service has a Memorandum of Understanding in place with the NHS Boards areas in which there are prisons. These Boards are responsible for providing all primary care services in prison, including mental health input. One group felt that the Memorandum of Understanding was in need of updating to better balance issues around confidentiality, risk and public protection.

8.3.1 Forensic mental health services in prisons

Psychiatric provision in prisons is provided by in-reach sessions by forensic psychiatrists. However, this provision varies significantly, from five to 0.5 forensic psychiatry sessions per week. Out of hours psychiatric support is not always provided by someone who is forensically trained. Psychiatric provision was reported not to have increased in line with increases in prison populations within Health Board areas, leaving it under-resourced. Feedback from psychiatrists suggested that most of the work they do in prisons relates to mental health conditions like depression and anxiety, which would not typically be referred to forensic specialists.

The Parole Board recommended that the burden of producing psychiatric reports should be shared more evenly across the health services, so that it does not fall disproportionately on clinicians whose Health Board includes multiple prisons.

Forensic and clinical psychologists are providing psychological interventions in prisons. They are also providing training and supervision of staff. However, the level of provision is variable and in some areas there is no formal provision. It is also felt to be under-resourced. Psychologists said that the demand for highly specialist psychological interventions cannot be met by the current resource allocated. The Scottish Prison Service do employ some forensic psychologists directly but this is for a very specific roles such as offender behaviour treatment programmes.

8.3.2 General mental health services in prisons

Concerns were raised about the numbers of nursing staff in prisons. One person said that the current mental health care model is not sustainable, with demand outstripping resource. They suggested that if mild to moderate mental health issues could be moved to primary care, the mental health teams could function as a more specialist service focusing on the people with the most complex needs. Another group said that people often feel they need to see a specialist about their mental health but that if they presented with these issues in the community they would be managed by primary services.

One organisation noted a contrast in the services available to people who are treated under the mental health legislation in hospital, compared to those with significant mental health problems but who do not meet the criteria for transfer for treatment and remain in prison. It argued that people detained in hospital under the mental health act have greater access to mental health specialists, whereas those in prison experience less scrutiny of symptoms, less access to treatment and less access to aftercare when they return to the community.

Joint working

Frustrations about inconsistency in mental health services within the prison system echo the concerns expressed within the forensic system. NHS Boards described variation between prison establishments as a challenge. Some prisons discharge a national function, meaning the Health Board in which they sit must liaise with all territorial NHS Boards and local authorities across Scotland. Each authority has its own unique systems and processes, which prevents a consistent approach to communication. Information sharing between prisons and both community and forensic mental health teams was general felt to be good but hampered by different IT systems. Some people noted failures to take account of GDPR and issues regarding the balance of risk management with confidentiality. At the highest level, NHS Boards want greater consultation on proposed changes to the prison estate because new prison populations have knock-on consequences for NHS provision in the relevant area.

Joint working is associated with positive outcomes for people in prison. The majority of people who discussed multi-disciplinary working in prisons said it needed to be better understood and operationalised. Constraints on mental health staff resources impact on multi-disciplinary working. Psychiatrists are only in prison for limited times and mental health nurses in prison can struggle to protect time for meetings, so there are limited opportunities to discuss more complex cases. One group recommended creating service level agreements between prison managers, health services and local authority social work departments to support a continuous and integrated multi-disciplinary health package. Another suggested that dedicated, rather than visiting, psychiatric provision would allow for greater integration of psychiatry into the multi-disciplinary team.

The Parole Board for Scotland (the Parole Board) relies on the provision of mental health reports to help it reach decisions about release of people from prison. Absence of information sharing between clinicians and the Parole Board means that reports may come too late for a given Tribunal. Prisoners may also be transferred between prisons as a Tribunal approaches and the report requests are not necessarily communicated to the next prison.

The process of ensuring people in prison receive mental health referrals when they are transferred between prisons or the community lacks clarity and consistency. Referrals are reported to be more common if the person has previous contact with mental health services. The quality of transitional arrangements into the community was also queried. Gaps in communication between prison staff, CMHTs and third sector organisations can affect the support given to people liberated into the community.

One advocacy organisation commented on good experiences around contacting the transferring prison when a person has been admitted to hospital. This helps in locating missing property and acquiring useful information.

Care and treatment

There is variation in the delivery of mental health care in prisons, including processes and pathways to access care from the point of referral, the composition and expertise of prison mental health teams, selection and delivery of treatment and the degree of mental health training given to prison officers.

People who have experienced prison custody can find it very difficult to get mental health support and experience delays in seeing a mental health nurse. Families spoke about a general lack of professional input and access to medication. When accessed, people's experience of mental health care in prison can be different to experiences in their home health board, including changes to proposed treatments. Family members said they can have difficulty accessing information or participating in decision-making about their relative's care in prison and may not be notified of any changes. This can create problems when people are released because family members are typically their main source of support.

Provision of psychological therapies was said to be inconsistent. Improvements have been reported following the creation of some prison-based psychology posts and the introduction of Low Intensity Psychological Interventions (LIPI) but there is still significant unmet need. This particularly affects people with personality disorder, for whom there is a growing evidence base of the efficacy of psychotherapy. A number of staff recommended enhancing resources for psychology. One argued that prisons should adopt a consultant psychiatrist-led community mental health model in order to improve access to care and treatment.

One prison has joined the Royal College of Psychiatrists Quality Network for Prison Mental Health. It was suggested that if more prisons were to join the network there would be less variation in standards of care between prisons and an increase in services offered to prisoners. Psychologists also felt that the targets for referral times for people in the community should equally apply to people in prison.

There is inconsistent access to other services in prisons, including AHPs, advocacy and other third sector organisations. AHPs reported challenges establishing relationships and developing their roles, which they associated with high prison staff turnover. They also noted difficulties in continuing care when people are transferred or liberated and felt that there are opportunities to develop pathway working in this area. One group said there is no strategy to coordinate access to services from third sector organisations and no clear efforts to direct resources in the most appropriate ways. The provision of independent advocacy within prisons was described as 'tokenistic and very poorly funded'. Advocacy services also commented on gaps in the referral process, noting that the majority of referrals to their services were by people detained in prison themselves or through word of mouth.

The process of ensuring people in prison receive mental health referrals when they are transferred between prisons or the community lacks clarity and consistency. Referrals are reported to be more common if the person has previous contact with mental health services. The quality of transitional arrangements into the community was also queried. Gaps in communication between prison staff, CMHTs and third sector organisations can affect the support given to people liberated into the community.

Remand

A number of people raised the issue of remanding people in prison whilst they wait for assessment or treatment in a secure inpatient unit. These prison placements are often made due to lack of hospital beds. They are said to be particularly common for women due to lack of female provision in the forensic mental health system. Professionals acknowledged that this practice can be traumatic and delays people's access to treatment. Family members described it as 'unacceptable' and 'devastating' for those affected. An additional concern is that prisons share information about inmates with the DWP but do not adjust their systems to reflect individual circumstances. This means that people remanded in prisons awaiting mental health assessments may have their social security benefits – including Housing Benefit – stopped automatically.

8.3.3 Conclusion regarding forensic mental health services in prisons

In seeking to look specifically at the 'forensic' aspects of mental health services in prisons it became clear that there was little specialist forensic provision. In the main forensic psychiatrists were providing an in-reach service, delivering a primary care adult psychiatrist role, for example treating depression, anxiety and stress disorders. Nursing input does not come from a forensic specialism but rather from a community mental health nurse perspective. It has a focus around primary care nursing, both for physical and mental health, with little or no learning disability nursing input that the review has been made aware of.

The provision of general mental health provision in prisons falls outwith the terms of this review. However, the evidence outlining issues with mental health provision in prisons does indicate that it is an area which would benefit from further examination and it is hoped that the Scottish Government will identify an appropriate body for such work.