Involuntary psychiatric treatment in custody – To be unequivocally opposed or supported with safeguards and significant service improvements?

Introduction

In the vast majority of jurisdictions, nationally and internationally, the involuntary treatment of mentally ill patients in custody is not authorised under mental health legislation. This position, while often a surprise to psychiatrists with no experience working in prison settings, is supported by many in the field of forensic psychiatry, and in November 2017, the Royal Australian and New Zealand College of Psychiatrists (RANZCP, 2017) published a position statement opposing the use of any involuntary mental health treatment in custody. The model of care supported by those opposed to involuntary treatment in custody involves the voluntary treatment of those with mental illness whenever possible and the transfer of those patients who require involuntary treatment to community-based facilities of appropriate levels of security. This model is aspirational, but in circumstances where both general adult and forensic mental health services are insufficiently resourced to meet the needs of mentally ill prisoners, the reality is very different. The result is that prisoners typically wait long periods for transfer to hospital or may be refused transfer altogether. Staff in prison may resort to coercion in various forms (e.g. use of restrictive custodial placements, including solitary confinement) and other legal frameworks to enforce treatment in incompetent individuals, but without the legislative safeguards of mental health legislation. In our view, the ethical opposition to involuntary psychiatric treatment in custody cannot be justified in the absence of sufficient resources being made available to general community and forensic mental health services to meet the needs of this group in a timely manner. An alternative approach is to accept that there are, and will always be, significant numbers of patients in custody suffering from serious mental illness and without the capacity to refuse treatment. They could be treated involuntarily in custody with appropriate legislative safeguards, in circumstances where a timely opportunity for diversion into community mental health services is not possible. We are further of the view that involuntary treatment in custody must occur in custodial mental health units developed for the purpose and operated on the basis of a true partnership between custodial and mental health services.

Discussion

Current position in jurisdictions with no provisions for involuntary psychiatric treatment for prisoners within mental health legislation

In some Australian states and territories, other legislative provisions or powers can be used for the enforced treatment of mentally ill patients who lack capacity to make decisions about their psychiatric treatment, for example, in Queensland, The Corrective Services Act 2006 (Qld) s21; in Western Australia, The Prisons Act 1981 (WA) 95D; in the Northern Territory, the Correctional Services Act 2014 (NT) s93; and in South Australia, the Policy Directive ‘Compliance is Mandatory’ (SA Health, 2014). Treatment under any of these provisions is undertaken without the essential safeguards as set out in the Convention on the Rights of Persons with Disabilities at Article 12(4), which details an individual’s right to review by ‘a competent, independent and impartial authority or judicial body’. The use of these provisions in these states and territories varies in frequency, but it can only be regarded as a form of involuntary treatment in custody that should be avoided.

Similarly in England and Wales, where involuntary treatment in custody is not supported within mental health legislation, the ethical dilemma for clinicians working in custody is well articulated by Simon Wilson (2012), who highlights the danger of using other legal powers such as the common law and the Mental Capacity Act 2005 to enforce treatment in non-capacitous mentally ill prisoners. He empathises with clinicians caring for patients who are waiting on average 100 days to be transferred from prisons in London for treatment and emphasises the need to change the current system, suggesting that we either advocate for immediate transfer of these patients to hospital for mental health treatment or make prisons more therapeutic environments and introduce the necessary safeguards for involuntary treatment (Wilson, 2012). In the United States, in 2014, an extensive review of the mental health treatment provided to prisoners across the country recommended significant improvement in community services to divert those with mental illness away from custody wherever possible and, in addition, advocated to allow for the involuntary treatment of those with severe mental illness, again with appropriate legislative safeguards (Torrey et al., 2014).

The position in New South Wales (NSW), where mental health legislation does support the involuntary treatment of non-capacitous patients with mental illness, is unique internationally. The independent Mental Health Review Tribunal (MHRT) in NSW has a ‘forensic branch’ responsible for conducting regular reviews of the care, treatment and detention of involuntarily treated patients across the network of custodial centres across the state. There is a 40-bedded mental health unit within Long Bay Correctional Centre for the involuntary psychiatric treatment of those incarcerated individuals assessed to be mentally ill persons under the Mental Health (Forensic Provisions) Act 1990. In addition, in 2009, the forensic Community Treatment Order (fCTO) provision was added to the Act to allow involuntary treatment of those suffering from a mental illness in the general prison population. It could be argued that, in some respects, the legal safeguards are more robust for patients in custody in NSW, since in the legislation, individuals subject to fCTOs must be reviewed more frequently by the MHRT than those on Community Treatment Orders (CTOs) in the community and patients waiting for a bed in Long Bay Hospital for psychiatric treatment are reviewed more frequently than those forensic patients waiting for beds in secure psychiatric units in the community. The current mental health treatment model in custodial settings in NSW does aim to provide treatment for all those with mental illness in custody, including those individuals who do not have capacity to make decisions about the treatment options for their mental illness. In our view, however, improvements are needed to maximise the equivalence of care provided, particularly with regard to the availability of social and psychological therapies.

Conclusion

Those with serious mental illness who come into contact with the criminal justice system should be diverted from custody into community mental health services at every opportunity, and increased resources are clearly needed to maximise this approach, particularly for community mental health services, which need to be both willing and able to provide treatment to diverted patients. When diversion is not possible, or unacceptably delayed, then high-quality mental health care equivalent to that in the community should be provided. This should include involuntary treatment where necessary with the appropriate legislative safeguards and in optimal therapeutic conditions including: environments fit for purpose, with a range of rehabilitative programmes tailored to the needs of patients with mental illness, with extensive time spent out of cells and with adequate multidisciplinary healthcare staffing. We should learn from the experiences of our colleagues in other jurisdictions and take heed of the recommendations of reviews conducted. There is a real risk that, by opposing involuntary treatment in custody under any circumstances, we could inadvertently make conditions much worse for our patients and miss an invaluable opportunity to improve the care currently provided in custody, with far-reaching consequences.