Is being mentally ill tantamount to a criminal offence in Britain?

Gazette reporter Jonathan Rayner writes about the journey his son and he have taken through an increasingly dysfunctional system.

My son is out of prison now. Patrick (not his real name) has a mental illness, which seems to be equivalent to an imprisonable offence in this country. How else can one explain the statistic, contained in a February 2009 report from the Prison Reform Trust, that around 70% of the prison population of 82,240 have two or more mental health disorders?

Why are they not receiving treatment in hospital? Why, instead, is the already over-stretched justice system trying and failing to take care of them?

Patrick did commit real crimes. Some were bizarre – at one stage his charge sheet included breaking into a police station. ‘Why not use the front door?’ a puzzled officer demanded. ‘So nobody could follow me,’ Patrick replied. Patrick is a paranoid schizophrenic. He thought he would be safe in a police station, which was naive.

Some people, equally naively, might have expected the police to refer him to a doctor. But, as an officer reminded me: ‘We are not social workers.’

Other crimes were more serious, the worst being assault occasioning actual bodily harm. This was the offence that saw him remanded in prison, a grim Victorian edifice with tall brick walls.

It was also the offence that caused him to be placed under a Home Office section of the Mental Health Act (MHA) 1983. He was to remain under that section for six years and eight months. During that time his case became the subject of a judicial review that ended only when the Home Office sought and was refused leave to appeal by the House of Lords against a decision that Patrick was entitled to compensation.

But let’s start at the beginning. I’m telling this story, with Patrick’s full support and from a personal perspective, because I want to understand how his illness could have led to prosecution and imprisonment in a country we like to believe is civilised.

The police officers, prison staff, teachers, doctors, social workers and lawyers all did their best for Patrick. His solicitor, Rebecca Hill of London mental health and crime specialists Needham Poulier, did a sterling job, and on legal aid. His mother and I did nothing wilfully wrong, either. But neither, arguably, did Patrick, and he was the one who went to jail. ‘Love the person, hate the illness,’ the therapists tell you. It was the illness that made Patrick suicidal, delusional, self-harming – and a criminal.

Early signsWhere did it start to go wrong? Patrick was born in early 1981 and is the middle child of three. He was disruptive at primary school and excluded several times from secondary school. An educational psychologist once told me: ‘You probably think you never took your son fishing enough, but some people are just wired differently – nobody can make them that way.’ That was our first confirmation from a medical professional that Patrick was unwell.

By the time he left school after his GCSEs, his brushes with the police had become serious. We met our first duty solicitors and became acquainted with the magistrates’ court. Patrick would be cautioned and we all – family and solicitor – allowed ourselves to believe that a lesson had been learned and things would get better.

This was a delusion – violence at home continued unabated. Patrick was stealing from us, too, and smashing up the house. Alcohol and drugs were another problem. Social services gave us an emergency telephone number to call. The one time we tried it we were invited to leave a voicemail message.

When we confided in friends, nobody believed us. ‘I saw him yesterday and he seemed perfectly normal to me,’ said one. Another suggested: ‘A clip round the ear will soon sort him out.’

The family doctor advised reporting him to the police every time he behaved unacceptably. ‘He’ll wake up in a police cell one morning and decide it’s time to change his ways,’ she said.

That would have been a good plan, except Patrick was not capable of simply changing his mind. Instead, he soon woke up on remand at a young offenders’ institution. That was our introduction to prison visits: frisked by wardens and sniffed by dogs, volunteers running the tea shop, mums and girlfriends trying not to cry, the officer who warned one teenage prisoner: ‘You just wait until the visitors have left!’ Patrick eventually shinned up a drainpipe and refused to come down, which prompted someone on the staff to act. He was transferred to the medical wing and then to a secure ward in a mental hospital, still on remand. This was September 2000. He was 19.

Five months later he was convicted of affray, the offence for which he had been on remand in the young offenders’ institution, and he was made subject to a section 37 hospital order. This meant he was sectioned under the MHA and could only be discharged from hospital by a mental health review tribunal (MHRT), doctor or the hospital manager.

Diagnosed fitHe was discharged from the hospital in April 2001, aged 20, eight months after being admitted and two months after his conviction for affray. He had been diagnosed fit to face the world.

This next bit defies understanding, but people have moved on and the reasoning behind it will now never be known. Patrick was allowed to walk out of the hospital with no one there to meet him. We had not been told he was being released, but then our son was no longer a minor and there was no obligation to tell us. He pitched a tent and camped in the hospital grounds for a night and then walked – ‘so I can spot anyone following me’ – into central London, from where he caught a train to the town where one of his grandmothers lived.

She would not allow him to stay for understandable reasons. So he pitched his tent on the shooting range of the local rifle club. From there he was offered shelter in a hostel, run by mental health charity Mind, in the county town. He was now 150 miles from home, but I managed to visit him several times while he was in the hostel and, yet again, allowed myself to begin to hope. He seemed happy, we would chat and laugh, go to restaurants and pubs, just like a normal father and 20-year-old son.

This lasted until he got it into his head that the kitchen at the hostel was trying to poison him with vapours rising through the floorboards of his bedroom. He borrowed a knife to lift the carpet and refused to surrender it when told to do so by the hostel staff. The hostel ran a ‘one strike and you’re out’ policy. So the cycle began again – police cell, chaotic lifestyle and, in the end, assault occasioning actual bodily harm. This is the offence that led to his remand to the Victorian prison. Shortly after, he was returned to the mental hospital he had been in before.

But this time, because of the seriousness of the charge, he was now placed under a Home Office section – section 37/41 – of the MHA. Only the secretary of state or an MHRT can give you an absolute discharge from this. It is a slow business. The section was imposed in April 2002, when he was aged 21, and was to remain in place until late 2008, when he was almost 28.

While awaiting an absolute discharge, Patrick was granted a conditional discharge in August 2004, only to be readmitted in May 2005.

His readmission threw a legal spanner in the works. The Home Office should have referred his case to the MHRT within one month of his readmission. It failed to do so and Patrick, quite unwittingly, found himself embroiled in a judicial review testing, among other issues, whether this country’s MHA provided the same rights and protections as the European Convention on Human Rights. Appeals and counter-appeals followed until, in March 2008, the House of Lords refused the Home Office leave to appeal. The Gazette carried the law report of his victory (see [2008] Gazette, 28 March, 19), which was the genesis for this article. The matter was closed. Patrick has been told he will receive token damages.

Moving on But while the lawyers fought over when or even if he would be released, years passed by for Patrick in hospital. He acknowledged he had a mental illness, accepted the treatment and gradually got better. He moved in January 2006, under a conditional discharge, from the hospital to a residential home where he was allowed to go into town, cook his own food and regain some of the freedoms others take for granted. In November 2007 the conditions of his discharge varied, relaxed by the MHRT, and he moved again, this time to a house he shared with two other men who were also recovering from chronic mental illness. Caseworkers made regular visits, but otherwise they lived independently.

He is still at that house, granted an absolute discharge from the Home Office section on the recommendation of an MHRT in December 2008. He is now studying for an access course he hopes will lead to a place at university.

It’s a happy ending, but it’s not the end. People still discriminate against mental illness, fearing it as madness instead of recognising it as a medical condition. I have heard a doctor describe sufferers as ‘inmates’ of a hospital rather than ‘patients’, who need ‘minders’ rather than ‘nurses’. If a doctor with all those years of medical training can be so bigoted, what hope is there for the rest of us?

Patrick is now 28, and is likely to be on medication for the rest of his life. If he stops taking it, what is to prevent the whole sorry cycle of offence, prosecution, prison and mental hospital from starting all over again? The answer, I fear, is nothing. His solicitors fought to keep him from spending his life in an institution, but the law itself does little to help them, or him.

Richard Charlton, chairman of the Mental Health Lawyers Association and partner at London firm Kaim Todner, says the fixed-fee regime is creating an advice vacuum for mental health work.

‘Since Patrick completed his journey through the justice system, the Legal Services Commission has introduced a series of fixed fees based on "typical cases", with bureaucratic and difficult "escape clauses".

This has created a situation in which, off the record, some criminal solicitors say they will do all they can to avoid those with apparent mental health difficulties and simply "cannot afford" to represent them.

The danger of, at best, inadequate representation and, at worst, serious miscarriages of justice is only too clear. If Patrick subsequently revisited the justice system, he would find there are now around 30% fewer members on the SRA specialist mental health panel than there were in 2000, although the work involving, for example, periodic tribunal reviews, has risen by around 15%.

Also, as the latest version of the fixed-fee regime bites in mental health, the drop in the number of specialist lawyers is expected to accelerate. And, while the NHS has now been given responsibility for prison health care, the soaring number of prison inmates and the number of those suffering from mental health problems means the prospect of getting lost in the prison system is increasing rapidly.

Of course, a failure to transfer a prisoner with a clear mental illness to hospital will probably amount to a breach of article 3 of the European Convention on Human Rights as being "cruel and degrading". But where would a "new" Patrick find a lawyer to take up his case?’

Jonathan Rayner