§ '(1) Subject to subsection (7) below, this section applies where a person is convicted of an offence and the court is told in good faith or has reason to suspect that the offender is suffering from a mental disorder within the meaning of section 1(2) of the Mental Health Act 1983.
§ (2) The court shall not pass a custodial sentence on the offender unless it is of the opinion that—
- (a) the offender's mental condition and his need, if any, for treatment will not be seriously and adversely affected by such a sentence; and
- (b) that all reasonable and practicable steps have been taken to investigate and secure for the offender such treatment, if any, as may be appropriate for his mental disorder.
§ (3) Where a court passes a custodial sentence, it shall be its duty to state in open court that it is of the opinion that both of paragraphs (a) and (b) of subsection (2) above apply and why it is of that opinion.
§ (4) A magistrates' court shall cause the opinion stated by it under subsection (3) above to be specified in the warrant of commitment and to be entered in the register.
§ (5) For the purpose of determining whether it is of such an opinion as is mentioned in subsection (2) above, a court shall obtain and consider a medical opinion on the offender's mental condition and the likely effect upon this of a custodial sentence.
§ (6) In this section "medical opinion" means an oral or written report which is made or submitted by a registered medical practitioner approved for the purposes of section 12(2) of the Mental Health Act 1983.
§ (7) This section does not apply where the sentence for the offence is fixed by law.'.—[Mr. Sheerman.]
§ Brought up, and read the First time.
§ Mr. Sheerman
I beg to move, That the clause be read a Second time.
The purpose of this extremely important new clause is to ensure that courts will be obliged to obtain and consider a report on an offender's mental condition in appropriate cases, and shall not pass a custodial sentence until it is of the opinion that the offender's mental condition will not be seriously adversely affected by such a sentence.
We were talking this afternoon about debt defaulters being sent to prison. I said that it was ghastly that fine defaulters are sent to prison like the defaulters in Dickens's time. Perhaps I was slightly exaggerating, but I am sure that the House had some notion of the point that I was trying to make.
If we were looking for a major scandal in our criminal justice system, it would be necessary to focus only upon the mentally disordered who presently occupy our prisons, who find themselves in court and who find themselves dealt with in an entirely inappropriate way. There was much debate on these matters in Committee.
It is disturbing that many of the Government's social policies that bear on health, the closure of large mental institutions and care in the community have been slogans more than realities for many, who have found that they have nowhere to live and no work. They finish up—we can see some of them a short distance from the House—in cardboard city. We know that others end up in prison. Whenever I visit prisons, officers and governors say, "There are people here who should never have been sent here." They are talking about people who did not end up in prison 10 years ago. Surely it is ghastly that, over the 376 past 10 years, the penal policy within the criminal justice system has led to many mentally disordered people being sent to entirely inappropriate places.
The policy of the Home Office is that the mentally disordered offender should be diverted from custody wherever possible; I refer the House to Home Office circular 66/90 of 3 September 1990. However, apart from the Mental Health Act 1983, which provides powers for the courts to order treatment in suitable cases, there is no legal obligation for the courts to consider the mental state of a defendant before sending him or her to prison. As the Bill stands, it makes no provision to oblige the court to investigate the mental condition of the defendant. The court will be required only to take that into account when other parties may have obtained relevant information about it.
The clause provides an opportunity to advance the Government's widely welcomed pledge to aid diversion by ensuring that defendants with needs arising from their mental disorder do not slip through the net into an entirely inappropriate penal system.
As this matter is not something about which the Government know nothing—we believe that they were persuaded of it in Committee—we had high hopes that, on Report, they would produce some positive amendments. No one can avoid understanding that this is a scandal. We are not trying to make this into too much of a party political issue, but if it were not so late and we had not therefore decided that we shall probably not seek to push the new clause to a Division, we might be marshalling much more political arguments in this discussion. However, we shall not do that, because we want to persuade the Government.
The problem is apparent. One of the most ghastly inequities in our country today is the fact that mentally disordered people are in prison, where they should not be. The new clause gives the Government an easy way to stop that. It states simply that there should be a proper psychiatric assessment of prisoners coming to the attention of the court.
§ Dame Jill Knight
I have read the new clause with great interest, and have one question about it. Although none of us wants a person who is suffering from a bad mental disease to be imprisoned thoughtlessly and carelessly, what about mental patients who have, say, hacked somebody to death and are a real danger to the public? I am worried that the new clause does not refer to that aspect.
§ Mr. Sheerman
Although I shall come to that point later, I shall try quickly to put the hon. Lady's mind at rest now. In a severe case, where someone who is mentally disordered hacks someone to death, psychiatric opinions will of course be advanced in court. In such severe and dramatic cases, psychiatric evidence becomes available as part of the prosecution and defence structure of our court system.
The new clause seeks to deal with the fact that, if the research is correct, up to 20 per cent. of people in our prisons are suffering from some form of mental disorder. I do not know whether that figure is too high or too low, but that is the figure that people are giving us. There is also the anecdotal evidence that I have already mentioned, of prison governors and officers saying, "We are not a mental institution, but we are being asked to lock up people not 377 because their behaviour is criminal but because their mental state leads them to commit crime." There is a difference.
I hope that I can put the hon. Lady's mind at rest by saying that the new clause would require all the sentencing courts to have regard to the mental condition of a defendant who it reasonably suspects or is told in good faith has a mental disorder within the meaning of the Mental Health Act 1983. To some degree, that already happens. In my experience, most courts are quite caring places. A police officer, probation worker or court official will often flag the fact that the case is not what it seems, and that the defendant needs medical attention.
At its best and in that informal way, our court system works, but it is not working in that way enough. The procedure is patchy and unsystematised. The court cannot pass a custodial sentence upon such a person unless it is of the opinion, which has to be stated in open court, that a custodial sentence will not "seriously and adversely affect" the offender's mental condition and his or her need, if any, for treatment; and that "all reasonable and practical steps" have been tried to investigate and secure for the defendant any treatment which he or she needs. The court has to obtain a medical opinion on the defendant's mental condition and the likely impact of custody upon him before it forms its opinion.
A medical opinion can be supplied orally or in writing by a doctor approved under the Mental Health Act 1983. In practice, it is usually a consultant psychiatrist or senior registrar in psychiatry.
The court would not he under that duty when the offence was murder. Medical reports are always obtained in murder cases, in any event. I told the hon. Member for Birmingham, Edgbaston (Dame J. Knight) that I would come to that.
Too many mentally ill people are in our prison system. The Home Office has commissioned research, which is continuing. Perhaps the Minister will enlighten me if progress has been made. The research is being undertaken by Professor John Gunn into the psychiatric profile of the sentenced prison population. His findings have not yet been published, but, on 2 October, The Observer contained an article on the expected findings of the report. It said that more than a fifth of sentenced prisoners were mentally ill, including many in acute need of psychiatric treatment which they did not receive. The findings suggested that more than 1,000 sentenced prisoners fell into the acute category within that band. We are therefore talking about large numbers of mentally ill people inside our prisons.
Since we discussed the matter in Committee on 11 December, two key reports have been published, which are of great relevance to today's debate. I shall describe them briefly.
First, on 14 December 1990, the Home Office published Judge Tumim's scathing report on Brixton prison. Its most grave criticisms were of the medical facilities in the gaol. These were described as understaffed, underskilled, operating in crowded and wholly inappropriate physical conditions, where the strip cells, for the most disturbed prisoners, held a permanent smell of urine, the walls bore faecal stains and the mattresses were dirty. The report considered that insufficient use was being made of section 378 48 of the Mental Health Act 1983 to arrange the transfer from prison of the mentally ill prisoner requiring treatment.
I am going through the evidence quickly, because I do not want to detain the House too long; but it is important to put the evidence before the House. The report revealed that Brixton prison is a major source of psychiatric reports for the criminal justice system. It performed that role in more than a third of the total number of cases in which reports were obtained. The cost during 1988–89 of a week's remand in Brixton for this purpose can be simply averaged at £402.
On 19 December, the Home Office published the report of the chief inspector of prisons into suicide and self-harm in prisons. As the Minister will know, it makes ghastly reading. It revealed details of suicides in prison. It detailed graphically the vast difference between the treatment which a mentally ill prisoner would receive from the prison medical service and that which he or she would receive from the national health service, and the inability of the prison medical service to meet the needs of the seriously disturbed, and especially the non-compliant, prisoner.
The report's 123 recommendations include many which are relevant to the mentally ill or mentally disturbed prisoner. It accepted the connection between mental disorder and suicide in a proportion of cases—22 per cent., according to the study by the National Association for the Care and Resettlement of Offenders, which is referred to in the report. In over 33 per cent. of suicide cases, the person had a history of psychiatric contact, while over 25 per cent. had had previous treatment as an in-patient. Responding to the report, the Home Secretary referred to the "disproportionate number" of mentally disordered prisoners who take their own lives.
I hope that the House accepts that that evidence is relevant to the new clause. The report proposed that, in the interim, and before the NHS had built up its facilities, certain prison medical wings should be upgraded to NHS standards. That recommendation also appeared in the Brixton report. The Home Secretary responded by stating that a group convened by the director of the prison medical service was to consider the proposal. But the pressure group MIND believes that the proposal has already been rejected by the Home Office and the Department of Health. I should like the Minister to comment on that.
At the same time, Judge Tumim stressed the need for diversion from inappropriate penal custody of the mentally disordered defendant. He recommended the duty psychiatric rota scheme in operation at Bow street, Marylebone and Horseferry road magistrates courts. To test the patience of the House just a little—this is an important matter—I shall outline to the House what that scheme is. The scheme provides rapid and effective assessments to the court from a psychiatrist attending the court. The provision of such cost-effective schemes in every busy court would avoid the possibility that the amendment to clause 3 would lead to remands into custody simply for the purpose of obtaining medical reports.
I could understand it if the Minister said that this was a difficult problem and that he did not want to see more mentally disturbed people in prison for psychiatric reports. However, the Tumim report suggests that a duty psychiatrist service could be organised quickly throughout the court system to provide a rapid assessment of a 379 person's mental state. That report would not require that person to be held for a week in Brixton or Armley, where he would be prone to take his life or his mental illness could be exacerbated. Such assessment schemes are already working.
In Committee, confidence was expressed in the prison medical service. I recall that the Minister of State stated:It is recognised that excellent work is being carried out by the highly-qualified people who are involved in the prison medical service".—[Official Report, Standing Committee A, 11 December 1990; c.143]The Minister and I must agree to disagree on that. I suppose some good work is undertaken somewhere, but every report I have seen states that it is about time that we got rid of the prison medical service and allowed prisoners to come under the care of the NHS. That would be a healthier and better system, and it is advocated by many prison visitors.
The annual report of the chief inspector of prisons in 1989 also criticised prison medical facilities. The prison medical service scrutiny report of July 1990 found:There is no clear definition of the standard of clinical care expectedin the service. In October 1990, the British Medical Association published critical findings in its report on the health care of remand prisoners.
It is no longer possible to be in the least complacent about that scandalously inadequate service. I hope that the Minister agrees that it is imperative to take swift action to ameliorate that appalling situation. The Government's welcome circular of September 1990 must be backed up by legislation now. We are concerned that the circular, in common with some of the rhetoric on community care, means nothing without national implementation backed by adequate resources.
The courts need diversion schemes with rota psychiatrists available to provide assessments. Health authorities may need to provide psychiatric care beds while social and probation services will need to offer community facilities such as psychiatric bail hostels. Before the Minister says that all that would be expensive, it is important to remember that savings would result from such services. I have already said that it costs £402 to remand someone in Brixton for a week. Our proposal would speed the introduction of duty psychiatrist rota schemes in courts. They are already operating in some places, and we must extend their use, as it will result in fewer remands in custody that carry such hugh costs in financial and human terms.
Diversion from custody for those who are mentally disordered can be greatly advanced by improving the quality of the decisions affecting them. Too often, those people have suffered from indifference, discrimination and prejudice at the hands of the authorities charged with their care. Those authorities are not wicked, as one cannot blame a criminal justice system that does not have specific training in how to treat the mentally disordered. Our system is designed to deal with "normal" criminals.
I am not criticising the personnel, the training they receive or their motivation. It is just a fact of life that the criminal justice system is designed to deal with "normal" criminals. If we ensured, however, that the courts sought expert advice, there would be less chance of ill judged or inappropriate sentencing decisions on the mentally disordered.
It is now the policy of the BMA that each court should have a duty psychiatrist rota, so there should be no 380 difficulty in obtaining the co-operation of that profession. Our proposal could also give impetus to the Government's circular 66/90, which calls on courts to establish arrangements for speedy access to professional psychiatric advice.
A parliamentary answer that I received on 3 December stated that no information was available on the number of schemes that had been established. Perhaps the Minister can expand on that answer, because I am surprised that the Home Office does not know how many schemes are in operation or have been established. It is not enough simply to state that such schemes are desirable: we need action now. If, because of resource implications, the Government are unwilling to tolerate a statutory duty that completely mirrors the previously expressed policy that they tried to introduce in the criminal justice system, the policy clearly lacks conviction, and its implementation will be constantly compromised.
When we discussed the subject in Committee, the Minister said:I give a clear undertaking that I shall examine the issues and bring forward Government amendments on Report.—[Official Report, Standing Committee A, 11 December 1990; c. 151.]Where are those amendments? The Opposition are dismayed at the Government's failure to respond to such a key issue. Prison is the worst place for someone whose mental condition is amenable to treatment from which he would benefit. It serves neither the public interest in reducing the likelihood of further offences, nor the individual interest of the offender who requires treatment. He or she should be entitled to decent treatment and care.
If we make it harder for the courts to commit defendants to such conditions, we may save the lives of those whose mental disturbance leads to suicide, encourage the rapid development of the co-ordinated and comprehensive schemes, and make the idea work in practice.
As the hour is late, I have not done justice to my argument. Many new clauses have been moved faster than I have moved this one, but new clause 18 is of the greatest importance and affects many of the most vulnerable people in our society, who should not be in prison and who could be easily diverted from it if the Government were to accept the new clause. I hope to hear a positive response from the Minister.
§ Mr. John Patten
My hon. Friend the Member for Birmingham, Edgbaston (Dame J. Knight) was absolutely right that we should put the protection of the public first when considering the position of people with mental problems. One of the most difficult problems facing a Minister of whichever Government is when someone who is found guilty of a terrible crime such as murder is also found to be mentally ill and is taken for treatment to an institution rather than a prison. Recommendations sometimes come to Ministers after a very brief period—two or three years—suggesting that the person is cured and because he was not a criminal he should be allowed into the community. I find such decisions some of the most difficult that I have to take. I reassure my hon. Friend the Member for Edgbaston, who made an important point, and other hon. Members, that the Home Office will continue to take such decisions with very great care.
I hope that, as with our debates on racial discrimination, there is no difference between the two teams of Front-Bench spokesmen about the end we wish to 381 achieve. We must find a way of squaring the circle that enables the court to identify, and obtain reports quickly on, those suspected of being mentally disordered without defeating the purpose of the exercise by having to put them on remand in custody for a long period awaiting those reports. That is an extremely difficult issue to deal with practically. The problem of reconciling the two conflicting objectives is, essentially, a practical, not legislative, one. I shall talk first about the practice and describe my ideas on legislation later in my speech.
We need arrangements for psychiatric reports to be made at short notice, otherwise the purpose of what the hon. Member for Huddersfield (Mr. Sheerman) and I want to achieve—to have fewer mentally disordered people in gaol—will fail because they will be in prison for a long time, kicking their heels, waiting for a report.
There are very few schemes in operation in this country where duty psychiatrists are on hand to give a rapid assessment. I saw one such scheme in action at Bow street. There are only three others in the country: one at Great Marlborough street, one at Horseferry road and one in Peterborough. Opposition Members' instant reaction might be to blame that on lack of resources from the Government, but even if we turned on the tap of money tomorrow, we could not possibly provide the necessary schemes all over the country within a year. There are just not enough psychiatrists. Not enough of them have been trained to do this difficult job. The royal college is tackling that problem now.
If we introduce this legislation now, we shall be laying a trap for ourselves. There are effective schemes only in the three places I mentioned, yet we would give judges the legislative duty to remand in custody people awaiting reports. The result would be even more people in the conditions to which the hon. Member for Huddersfield referred.
So this is not an occasion for waving the magic wand. Even if that prodigious kind fairy, my right hon. and learned Friend the Chief Secretary to the Treasury, were able to provide the money tomorrow, there are not enough psychiatrists to do the job at present.
I agree that we need to change the legislation. I continue to consider whether we should send a clear legislative signal in the Bill to show the courts more clearly how they should try to strike the difficult balance between unnecessary remanding in custody for psychiatric reports and sentencing to imprisonment mentally disordered offenders who should be dealt with in other ways.
When I gave the commitment in Committee to which the hon. Member for Huddersfield properly referred, it had not crossed anyone's mind that we should look at the workings of the Bail Act 1976. We are now taking a hard look at the parallel workings of that Act, to determine whether it might be possible to improve matters by altering it in this legislation.
I am continuing to work on the legislative possibilities with the aim of introducing a proposal in another place. I have taken into account new difficulties that have been identified; I have reflected on the issues raised in Committee; and I have stumbled on new possibilities involving the Bail Act. I hope that in the light of that further undertaking the hon. Member for Huddersfield will see fit to withdraw the motion.
§ Mr. Sheerman
I thank the Minister for his remarks. I am encouraged by his commitment to further consideration.
I had understood from the British Medical Association, however, that there was no problem. Is the Minister saying that the Institute of Psychiatry claims that there is a shortage of manpower? If there is a shortage, how long does the Minister think it will take to solve the problem?
Ministers always manage to mention the Chief Secretary to the Treasury, but are we really talking about a great deal of money? Any cost analysis must take into account how much will be saved by not sending people unnecessarily to prison. We need a proper costing of the operation, not a one-sided analysis.
Assuming that I am granted assurances on these matters, I beg to ask leave to withdraw the motion.
§ Motion and clause, by leave, withdrawn.