The development of equivalence as a mechanism to improve prison healthcare

Introduction

Over the past two decades landmark reforms have taken place in England and Wales to modernise prison mental healthcare. Spearheaded by the report Patient or Prisoner?, subsequent Department of Health guidance The future organisation of prison healthcare and Changing the Outlook, brought the state of prison healthcare to the front of the political agenda with two essential principles: continuity of care and equality.^1–3

Arising from an intention to raise prison healthcare standards to parity with those provided for the general population, as served by the National Health Service (NHS), the ethical principle of justice (translated into clinical terms as equivalence) provides an ethical and legal obligation for prisoners to be entitled to and have access to the same level, range and quality of healthcare as that provided to society at large, without discrimination on the grounds of their legal status. ⁴

Now achieving broad consensus across international organisations and adopted by many countries, particularly in Europe through its incorporation into the revised European Prison Rules 2006, equivalence is the standard against which healthcare provision should be measured.^5,6 It safeguards imprisonment as a punishment, through the deprivation of liberty, without the additional deprivation of other human rights.

The principle: origins and development

Whether or not mentally disordered persons ‘belong’ within the criminal justice system is primarily a societal issue that varies internationally depending on local laws and politics. However, once incarcerated, by the deprivation of their liberty, a prisoner’s integrity and wellbeing becomes dependent upon the state. ⁷ If the state then provides healthcare below the standard available to the general population then it risks violating its human rights obligations to care for and protect the lives of those detained. ⁷ Therefore, embedding the principle of equivalence into government policy on prison healthcare is fundamental to the promotion of human rights and raising standards of healthcare within prisons.

This notion of equivalence was first adopted by the United Nations General Assembly resolution 37/194 in 1982:

those charged with the medical care of prisoners and detainees have a duty to provide them with protection of their physical and mental health and treatment of disease of the same quality and standard as is afforded to those who are not imprisoned or detained. ⁸

However, it was not until the 1990s that equivalence of care began to take shape within the United Kingdom. The Home Office Circular Provision for mentally disordered offenders called for care and treatment to be provided from health and social services rather than the criminal justice system. ⁹ Meanwhile, the Department of Health and Home Office’s Review of health and social services for mentally disordered offenders advocated improvements by contracting services from the NHS. ¹⁰ Subsequently, the UK Government has become committed to developing the concept of equivalent care and the landmark policy document The future organisation of prison healthcare directly engaged the NHS in this agenda by outlining practical proposals to deliver equivalent care, with a plan to transfer the responsibility and commissioning of healthcare provision from the prison service to NHS funding organisations. ²

Although the transfer was completed in 2006, equivalent care still remains an ideal to be pursued. To provide true equivalence, prisoners should be conceptualised as a community subset of the general population, whereby doctors are guided by the same ethical principles and have the same duties to prisoners as they do to any other patient. ¹¹ Put simply, every prisoner should report to a doctor as a patient and not a prisoner.

In order to ensure this occurs and that the standard of care is as provided within the community, it is useful to define, monitor and develop prison mental healthcare in accordance with national codes of professional practice and policy on mental health using the same methods and standards that apply in the wider health service, such as National Service Frameworks and National Institute for Health and Clinical Excellence guidelines. ¹²

Prevailing circumstances

Despite the 1774 Act for preserving the health of prisoners in Gaol, and preventing the Gaol distemper that identified the state’s responsibility for ‘restoring and preserving the Health of Prisoners’, mental illness and the lack of healthcare provided remains a serious concern within the prison system. ⁷

In a comprehensive cross-sectional study, Singleton et al. ¹³ documented the full extent of psychiatric morbidity in remand and sentenced prisoners detained within the United Kingdom. Mental disorder was found to be the single most significant cause of morbidity among prisoners, with nine out of 10 meeting the criteria for at least one mental disorder and no more than two out of 10 suffering from only one disorder. ¹³ Data from the Prison Reform Trust ¹⁴ indicate that 7% of men and 14% of women prisoners suffer from psychotic illnesses, 62% of men and 57% of women meet the criteria for a diagnosis of personality disorder, while 10% of men and 30% of women have previously been admitted to psychiatric hospital.

The prison environment, through a concentration of poverty, conflict, discrimination and disinterest, can lead to ‘an acute worsening of mental health problems’, particularly when there is accompanying poor access to rudimentary mental healthcare and support services.^7,11 This tension between mental disorder and imprisonment can be aggravated further if specialist mental health services are inflexible in their approach. Although substantially improved over the past 10–15 years, there is still considerable variation in the range and scope of services provided nationally: services are often limited in volume, range and quality, raising questions regarding their effectiveness in meeting the needs of this population.^3,15 Internationally, variation exists depending on the overall framework in which services are delivered, due to the basic philosophies of prison mental healthcare, including equivalence, and whether the responsibility lies within health or justice departments. ⁶

Providing an equivalent standard of mental healthcare to prisoners is a public health imperative. It can improve the individuals’ healthcare outcome and protect against the implications of continued poor mental health on the overall health of the nation and society at large. By maximizing prisoners’ functional ability within the community, it can assist their decision to lead law-abiding, useful lives after release.^2,3,16 For example, prisoners considered to be suffering from anxiety and depression are approximately 10% more likely to be reconvicted in the year after release from custody. ¹⁴ From this perspective, the principle of equivalence and the improvement of mental healthcare service provision could enable economic benefits, by contributing to reduced crime and re-offending rates. ⁷

Limitations

Equivalence, used to identify prison healthcare inadequacies, has driven systemic improvements to the structure, organisation and regulation of prison mental healthcare in the United Kingdom. ¹⁷ However, despite ‘heroic efforts’ during recent reforms, providing equivalent care in prisons presents a significant challenge, given the levels of morbidity and problematic service integration between health and justice areas. ¹¹ UK prisoners consult on average three times more often for general care than a demographically equivalent population. When combined with the excess morbidity, severity and complexity of mental disorder alongside the comparatively low, or variable, level of services available and constraints of the prison environment, the treatment provided is potentially limited. ¹⁶ With this in mind, a predominantly process-driven principle of equivalence may potentially leave inequalities in healthcare unrecognised and unchallenged by masking discrepancies in what is an atypical and unrepresentative population. Equivalence could be an unattainable ideal due to the complexities involved, whereas an outcome-driven approach will achieve greater equality of care.^6,11

The establishment of mental health in-reach teams has been central to the government’s policy for improving mental healthcare. Although this has been an important development, the lack of implementation guidance has led to wide variations in their role and function between prisons, limiting their ability to concentrate on prisoners requiring specialist secondary services.^15,18 Within the community, almost 80% of mental healthcare is provided through primary services and in line with the principle of equivalence, primary care within the criminal justice system should be just as crucial. ³ Despite this the All Party Parliamentary Group on Prison Health ¹⁹ found that primary mental healthcare is extremely weak. Ensuring the provision of high-quality, well-run, efficient and effective primary healthcare to address the needs of prisoners with common mental health problems would assist in reducing the pressure on over-stretched mental health in-reach teams. ¹⁸

When an individual’s mental health needs progress beyond prison healthcare provision (estimated at 41% of those held in prison healthcare centres), it is vital, in line with the National Service Framework for Mental Health, to ensure appropriate and timely transfer to an NHS secure hospital.^14,17 However, unfortunately this process is often considerably, unacceptably, delayed. There are several reasons to account for this, including difficulties with communication and bed availability, as well as disputes regarding assessments, clinical conditions or required level of security. Additionally, there is perhaps the perception that the NHS might not always give the ‘prisoner-patient’ the same level of priority as the ‘community-patient’, arising from the notion that containment within a prison healthcare wing can ameliorate risk, or provide the required treatment. Although this is true to an extent, because safer custody and observation procedures can be implemented, prison healthcare wings are specifically excluded from the NHS Act 1977; as such, they are not able to offer compulsory treatment, under the Mental Health Act 1983. ¹⁷

This notion of equivalence is challenged further by the reality of providing long and complex treatments to prisoners which are interrupted and often undone by release or transfer from one prison to another. ¹⁶ To compound this difficulty, 15% of prisoners are homeless and 50% are not registered with a general practitioner prior to incarceration (with similar proportions on release). ¹⁴ In some countries, these patients remain under the care of the prison mental health team, in a process known as transmuralisation of prison programmes and it would be timely to consider how best to provide these services as standard to secure health benefits.

Conclusion

Equivalence is a minimally acceptable standard, rather than an ideal one, that does not yet fully address the healthcare challenges inherent to the prisoner population. The complex structures and rules that exist within criminal justice systems now require us to move beyond the concept of equivalent standards by delivering the same services in the same way as the general community, towards equivalent objectives irrespective of the range and quality of services.^6,11,20 As such, equivalence and its successor concepts may be an important way for us to retain, and extend, idealism in prison healthcare.

As health professionals it is our responsibility to stand up for patients’ rights and address shortfalls in prison healthcare provision where they exist. In reality, this means prioritising further improvements within criminal justice systems. Improving the availability, accessibility, acceptability and quality of services (the AAAQ framework) beyond that found within the wider community may be one way to address the idiosyncratic differences to be found within the prison system and help improve prisoners’ mental health further. ²⁰ Without these improvements and unless greater resources are allocated to the prison population, equivalence will remain merely an ideal.