Independent Forensic Mental Health Review: interim report

10 Legal issues and rights

People raised issues about the legislative framework within which forensic services work.

A number of individuals and advocacy organisations raised issues around the legal rights of people in the forensic mental health system. People with lived experience and their family felt that they suffered from a lack of clarity in this area. The role of advocacy in safeguarding and protecting the rights of people receiving care was identified as particularly important. People felt that without advocacy they would not get a full explanation of their rights or receive complete information about their situation.

Advocacy groups argued that forensic services infringe on the human rights of the people who use them. They said that people have no choice about their use of forensic mental health services and that, once in that system, they lose their liberty and many other rights, without reciprocity. They suggested that coercive control still exists in the forensic system and some felt this to be at odds with the United Nations Convention on the Rights of Persons with Disabilities.

10.1 Appeals against conditions of excessive security

People should not be kept in conditions of security that are higher than clinical requirements or unnecessary for the protection of the public. People in high and medium secure units have the right to appeal if they feel they are being held in conditions of excessive security. These provisions are seen as welcome but are thought to have added to the pressure on beds in medium and low secure settings.

The primary cause of detention in conditions of excessive security is the lack of a bed at the right security level. This means that few appeals are made without merit and many are made with clinical support. This creates pressure to hold tribunals that would not be necessary if beds were available to enable timely progression. As successful appeals do not solve the capacity issue, people may also still face considerable delays before the decision is enacted. People in the forensic system are well aware of this. One person explained that he decided not to appeal because, even if he won, it was not as if a bed 'would magically appear'. Another suggested successful appeals only placed people further up a waiting list they were already on.

Not everyone uses the appeal system. There are people who lack capacity to appeal, are concerned about being moved out of area or who do not have confidence in the system. Some are reticent to appeal, knowing that if they were successful, they would be bumping someone else further down the queue. One person said he had not appealed against his conditions because he kept being told he was 'just about to be moved'. People who do not appeal appear less urgent and are potentially disadvantaged.

There were widespread calls to create an equivalent right of appeal for people detained in 'excessive conditions' in low security, for instance because their discharge has been delayed as they wait for accommodation in the community. The review was warned that without such a right, it is likely that a person held inappropriately in low secure services could successfully raise an appeal based on breach of the European Convention on Human Rights. However, it was also recognised that extending the right of appeal to people in low security would not be sufficient and that it is likely to lead to people to being transferred to 'lower' conditions of security such as IPCUs rather than being discharged.

What was common across all responses was agreement that there needs to be some mechanism or legal redress to resolve the issue of people's discharge being delayed by a lack community resources. People said any successful solution would require the support of local authorities and general mental health services. A number of people suggested that there could a clearer duty on local authorities to provide services to people who are ready to begin rehabilitation in the community.

10.2 Other legislative issues

In addition to calls for more governance, there was a clear appetite for legislative change within some submissions to the review. The following issues were identified by one or more people:

One person raised questions around the legitimacy of any form of detention on the grounds of a person's mental health condition, arguing that compulsion and force due to a person's disability is contrary to the rights conferred under the United Nations Convention of the Rights of People with Disabilities.

There is no requirement for a risk assessment when court disposals place people on a CORO. People felt that a risk assessment should be in place before a CORO is considered. As restriction orders are of unlimited duration, people thought the quality of that assessment should be particularly high.

Advocacy recommended that there should be legislative clarification regarding the length of detention for treatment in order to avoid the appearance of arbitrary detention. They argued that no order should be 'without end'.

There was thought to be a gap in sentencing options for people whose mental illness, learning disability or autism played a part in their offending but for whom long-term inpatient care would not be recommended.

One family member felt that it is unacceptable that a person can be transferred to prison while waiting for a hospital bed to be sourced for a psychiatric assessment for the courts. These placements in prison were said to be potentially devastating for the person affected. Admission to prison can also cause DWP benefits to be stopped, potentially leading to rent arrears.

One Responsible Medical Officer highlighted that there was no mechanism for them to return to a Mental Health Tribunal if they are unable to fulfil aspects of a treatment plan for people on criminal orders. They felt that the availability of 'recorded matters' (which can currently be specified by Mental Health Tribunals in respect of people subject to compulsory treatment orders) should be extended to people who are subject to criminal orders.^[25]

Family members called for a change in law to allow those who will be supporting people at the point of discharge access to basic information, even if they are not the nominated person.

Advocacy raised the issue that people lose their right to vote under the current legislation, calling this a 'civil death'. They wanted to see the vote given to all people within the forensic mental health system.