The Mental Health Act and the prison population

A 1991 Home Office study found 37 per cent of male and 54 per cent of female sentenced prisoners to be suffering from psychiatric disorders. A later 1998 Department of Health study of 3,200 prisoners found that as many as 78 per cent of prisoners suffered from some form of personality disorder, with much higher instances of other mental disorders than in the normal population.

Subsequent studies suggest that as many as 90 per cent of prisoners have a diagnosable mental health problem and that 2 per cent will attempt suicide in any given week.

It is therefore vital that the agencies involved adequately assess and provide for prisoners' mental health needs. Failing to do this can lead to successful judicial review, human rights and other legal challenges in the courts. More importantly, such failures may put prisoners and staff at unnecessary risk.

Case law

The field of "clinical justice", as some prefer to call it within the context of the prison service, appears to be a growing area of the law. Examples of some successful legal challenges include:

• In Rivere v France, the European Court of Human Rights held that a prisoner's article 3 rights were violated when a seriously mentally ill prisoner was detained in normal prison conditions without proper facilities or treatment for his mental disorder.

• In McGlinchey v UK, abrupt detoxification was found to breach article 3. Similar arguments are currently being put forward with respect to an ongoing group action in the UK centring on withdrawal of methadone treatment for prisoners.

• The case of Ryan St George v Home Office again stressed the importance of proper medical management of addiction and withdrawal.

A detailed framework exists under the Mental Health Act 1983 to enable the formal assessment and transfer of prisoners to psychiatric hospital for specialist mental healthcare and treatment where necessary.

Judicial review claims such as R v (1) Secretary of State for the Home Department and others have stressed that once the prison service has reasonable grounds to believe a prisoner requires treatment in a psychiatric hospital, the Secretary of State is under a duty to expeditiously take "reasonable steps" to obtain medical advice and effect the prisoner's transfer to a psychiatric hospital under the provisions of the Mental Health Act 1983 if appropriate.

Mental Health Act 2007

The Mental Health Act 2007, which came into force on 2 November 2008, amended virtually every section of the 1983 act. Of particular significance in this context, the new act changes the definition of a mental disorder to "any disorder or disability of the mind", removing the previous four categories of mental disorder.

The new act goes further, by removing the earlier "treatability test", replacing it with an "appropriate treatment" test. What this means in practice is that whereas previously it was necessary to show that certain categories of patients were treatable, now one must simply be satisfied "appropriate medical treatment is available" for the patient.

While these may be subtle distinctions, there is an argument that the amended legal framework makes it more likely that certain prisoners suffering from serious personality disorders (particularly those who are self-harming or putting others at risk) will now meet the criteria for detention in hospital rather than in prison and so should be transferred. Successful judicial review, human rights and other legal challenges may follow in cases where prisoners do not receive appropriate treatment.

How to prepare

For those providing care for prisoners, it therefore remains crucial that the first reception health screen appropriately assesses such issues. Organisations' policies and staff training should also accurately reflect the new legal framework, including the relevant provisions of the Mental Health Act and Mental Capacity Act.

The use of the Mental Health Act 1983 should be considered where appropriate. If there is a serious delay in finding a suitable hospital bed, specialist in-reach services may be required.

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