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Prisoner/patient: prisons as mental health institutions1 Dr Bronwyn Naylor2 Introduction The de-institutionalisation movement of the 1960s and failure of governments to adequately support people with mental illness and intellectual disabilities, coupled with heightened risk aversion
in the community, has meant that many are ultimately left to be `managed' in the criminal justice system
(Priebe et al., 2005). Today, it is widely recognized that the numbers of people with mental illness (and intellectual disabilities) in the prison system is both significant, and increasing. As a consequence there will be increasing numbers of prisoners who are difficult to manage, difficult to communicate with, and at greater risk of harm to themselves and others. At the same time, prisons are notoriously under-resourced, with mental health and related services in prisons particularly poorly supported in many jurisdictions, and pressure on these limited resources will only increase. This paper raises serious concerns about the incarceration of people with mental illness and the need to balance rights/autonomy with treatment/ Safety issues
; the use of segregation, seclusion and disciplinary proceedings as management tools; access to medical treatment; and resource allocation for psychiatric facilities inside and outside prisons. Examined in the paper is the importance of human rights
litigation, governmental and regional reforms, and international monitoring in creating positive change for people with mental illness in the criminal justice system. The Problem There are different definitions of mental illness (and intellectual disability) and different points at which this data is recorded, and the sets of data are therefore difficult to compare. The following statistics at least illustrate the potential breadth of the problem. According to the World Health Organisation (WHO), of the 2 million prisoners in Europe, at least 400 000 suffer from a significant mental disorder, and more suffer from common mental health problem
s such as depression and anxiety (WHO, 2010). Personality disorders are the most common form of mental health problem in prisons, but the WHO reports that `a substantial part of the remaining prison population suffers from psychosis-related problems'. Women prisoners have very high levels of mental illness; the WHO reports that `80% of women in prison have an identifiable mental illness' (WHO, 2010). Mental health is also put at risk in prisons from factors such as overcrowding, bullying, marginalization and discrimination (WHO, 2010). 1 This paper first appeared as a chapter in an edited collection: Carroll, E. and Warner, K. (2014) Reimagining Imprisonment in Europe: Effects, Failures and the Future, Dublin: The Liffey Press Ltd. 2 This paper will draw on a major research project on Implementing Human Rights in Closed Environments to make a comparative evaluation of three potential drivers for change, in Europe and more widely: rights-focused litigation; mental health-focused reforms; and monitoring for protection of rights.
In England and Wales, with 86,821 people held in prisons as at August 2011, Up to 90% of prisoners have some form of mental health problem (including addictions and personality disorder ...) and 10% of male and 30% of female prisoners have previously experienced a psychiatric acute admission to hospital. (Centre for Mental Health, 2011: 2) Statistics for the prevalence of mental health problems in prison and in the general community reported by the Centre for Mental Health showed, for example, 0.5% of the general population experiencing psychosis compared with 8% of the prison population, and 13.8% of the general population suffering depression or anxiety compared with 45% of the prison population (2011). People with mental impairments who commit criminal offences can be held in secure psychiatric facilities if found not guilty on the basis of their mental illness. In 2009 there were 4,258 restricted patients in secure hospitals in England and Wales (Centre for Mental Health, 2011: 5). Other people may become mentally ill
once in prison. It has long been recognized that prisons also produce (or at least exacerbate) mental illnesses (Edgar and Rickford, 2009). If the illness is severe enough they should then be transferred to a psychiatric facility. Transfers from prison to a secure hospital depends on the availability of beds, and can often involve long delays (Council of Europe, 2012; Bradley, 2009). The US and Australia experience similar issues; indeed it is reported that in the US there are `three times as many mentally ill people in prisons than in mental health hospitals, and the rate of mental illness in prisons is two to four times greater than in the general public' (Fellner, 2006: 392; see also Australian Institute of Health and Welfare, 2012). In explaining the increase in mentally ill people entering prisons it is commonly observed that the deinstitutionalisation movement of the 1960s and failure of governments to adequately support people with mental illness and intellectual disabilities, coupled with heightened risk aversion in the community, has meant that many are ultimately left to be `managed' in the criminal justice system (Priebe et al., 2005). At the same time prison overcrowding, a major issue across Europe and much of the world, increases health problems in prisons, including the risk of mental health issues, and the use of psychoactive substances in their management (WHO, 2012).3 Why this issue matters The increasing incarceration of mentally ill people in the prison system has serious consequences for prison management, for criminal justice policy, and for the rights and health of this group of prison detainees. Specific issues include access to medical services, balancing rights with treatment and safety issues; use of segregation, seclusion and disciplinary proceedings as management tools; and resource allocation for psychiatric facilities inside and outside prisons. Access to treatment, and balancing rights with treatment and safety issues 3 WHO notes that overcrowding is particularly egregious in the central and Eastern Europe
an countries along with much higher rates of imprisonment in the `newly independent states'. See further eg Dybeka v Albania (2007); Badila v Romania (2011).
The right of people in prisons to access to medical services is clearly stated in numerous international and regional documents. The UN International Covenant on Economic, Social and Culture Rights (ICESCR) (United Nations, 1966) Article 12(1) expressly recognizes the `right of everyone to the enjoyment of the highest attainable standard of physical and mental health.' This right is to be equivalent to that of non-detainees in that community. The UN Basic Principles for the Treatment of Prisoners Principle 9 encapsulates this principle of equivalence: "Prisoners shall have access to the health services
available in the country without discrimination on the grounds of their legal situation." (United Nations, 1990). More detailed requirements appear in the UN Standard Minimum Rules for the Treatment of Prisoners, including the availability of qualified medical staff, close links between prison services and community health provision, and transfer of sick prisoners to specialized institutions (articles 22 and 82) (United Nations, 1955). This gives rise to a number of questions: who provides the medical services? Should this be the prisons service, or contracted providers, or the outside providers of health services (state or private sector)? For example, the World Health Organisation recently recommended that prison health services should generally be provided by Ministries of Health and not prisons departments. It includes questions about the standard of medical care provided in the prison, access to specialists, and access to medication, bearing in mind the principle of equivalence. It also includes all the infrastructure that has to go around a person's medical care when they have no control over their environment: maintaining accurate and up to date records; communicating relevant information to relevant people in an environment which has vast amounts of churn (of both prisoners and staff), and linking people in to community providers as they prepare to leave. A crucial dilemma for prison management dealing with mentally ill detainees will be balancing autonomy rights with treatment (whether or not voluntary), and with safety, of the detainee, of other detainees, and of staff. The right of equal access to high quality services
may also be challenging, as a positive obligation on governments. But at a minimum, prisoners like all members of the community must be protected from cruel or degrading treatment. All major human rights instruments prohibit cruel, inhuman and degrading treatment and punishment (including for prisoners).4 The aim of containing difficult behavior may however compete with these rights. People may be placed in segregation in harsh conditions to manage disruptive behavior (discussed further below). They may be restrained physically; they may also be provided with medications which aim to manage their behavior by keeping them in a sedated state. A forensic psychiatric nurse wrote recently of the particular challenges of having to use force to restrain a patient: One of the biggest conflicts of interest I have is restraining a patient from hurting themselves or others. I personally struggle with the fact that I am here to build relationships with patients and help treat and support them yet may also be called upon to restrain them if they become violent (Bello, 2011). Prisoners cannot, however, be treated involuntarily in prison. The UK Mental Health Act 1983, for example, provides for involuntary treatment itself a breach of rights, and therefore 4 ICCPR Articles 7 and 10; European Convention on Human Rights (ECHR) Article 3. Equivalent provisions apply in Australia (Victoria and the ACT), New Zealand, and under the American and African Conventions.
carefully regulated and monitored only in recognized hospitals. Prisons do not fall into this category, and prisoners must be transferred to a NHS hospital or other secure facility if they require such treatment.5 Use of segregation, seclusion and disciplinary proceedings as management tools Segregation, seclusion and disciplinary proceedings are increasingly used as management tools for difficult and disruptive mentally ill prisoners and prisoners with behavioural difficulties, as their numbers grow in increasingly overcrowded prisons. The UN Standard Minimum rules recognise the fundamentally harmful character of prison as punishment and require prisons to minimize further suffering through Disciplinary actions
, providing in article 57 `the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a [detention] situation.' Nonetheless prison management will be faced with challenges to the `good order' of the prison from mentally ill (and intellectually disabled, and brain damaged) prisoners and are likely to turn to disciplinary processes and segregation to maintain control. The Centre for Mental Health also notes that prisoners with serious mental health problems are placed in segregation units, because `ordinary location' is considered to be too stressful. (Centre for Mental Health, 2011: 5) In addition to the potential breach of rights, the use of segregation and solitary confinement at the same time clearly risks creating, or aggravating, mental illness. English prisons holding mentally ill inmates in close supervision centres (CSC) run on `highly punitive' lines to manage disruptive inmates were recently criticised. Lord Ramsbotham, a former Chief Inspector of Prisons for England and Wales, was quoted as saying that `it had been clear for a long time that CSCs are holding people who should not be there. "If you are holding people suffering mental health problems, then they should be held in conditions similar to those in secure mental health hospitals. This is clearly not the case [at Woodhill]," he said.' (Allison, 2011). Many US prisons use Behaviour Management Program (BMP) regimes which correctional staff define as `therapeutic' or offering incentives to good behavior (i.e. to stop experiencing the extreme deprivation), but which prisoners (and anyone looking at the BMP) experience as punitive. These punitive `management' regimes are imposed in response to `misbehaviour' even where that misbehavior (non conformity to rules) arises from emotional or mental distress (Toch, 2008). Successful litigation under the cruel and unusual punishment provisions of the Eighth Amendment to the US Constitution involved a challenge to repeated use of extreme segregation for a mentally ill prisoner, in response to his attempts to commit suicide in prison. As the judge noted: 5 Litigation in this area has usually focussed on failures to provide medical care (or any care); the priority placed on voluntary treatment in Renolde v France (2008), and consequent failure to check that medication was in fact being consumed, was criticised by the ECHR when it left a prisoner to relapse into psychosis and subsequent take his own life. On the other hand, an offender on a community treatment order in Australia argued he was subjected to cruel, inhuman or degrading treatment when required to follow a regime of antilibidinal medication which was producing osteoporosis The court concluded that a medically approved regime would very rarely be found to be `cruel, inhuman or degrading': 09-085  VMHRB.
prison officials chose to label Walker as a bad person rather than treat the mental health problems that were apparent to inmates and staff. (Toch, 2008: 395) The extreme segregation included long periods of time in isolation, sleeping on a concrete floor, in filthy conditions, and often be left naked and cold. A psychiatric expert witness told the court in Walker's case: If it's a security program, I think it's just cruel and inhumane. If it's a treatment, it is ethically wrong ... (Walker v Montana 2003: para. 66) Resources The issue underlying many of these challenges, however, will often be poor resourcing for (a) prisons and (b) mentally ill people. Underlying the failure to properly resource will be a lack of political will to spend money in these sectors. There are always funding issues with prisons: prisons are politically problematic, especially in a significantly punitive political climate. Privatisation has been one response to the cost of running prisons but brings its own problems including the privatisation of health service provision
. Major reforms were recommended in the UK in the 2009 Bradley report, but it is unclear how many of these have been implemented. However, a joint announcement by the Justice and Health Ministers in March 2011 promised Ј3m `to be spent creating up to a further 40 diversion sites for adults and Ј2m for up to a further 60 sites for young people', to be a national service by 2014 (Travis, 2011). The defence in much human rights litigation in this area is that it is simply too expensive to bring old and inadequate prison infrastructure up to standard. Certainly many newer members of the Council of Europe especially in Eastern Europe are having difficulties with this issue. The current (northern) financial crisis
will only deepen these problems. The courts reject this defence in principle. However the ultimate issue in most litigation in this area is that there is no money or no will to allocate money to improving prison conditions. Drivers for change, in Europe and more widely Solutions will need to address · How mentally ill people come to offend and enter the criminal justice system, and the availability of earlier intervention; · Alternative forms of disposition minimizing use of prisons; · How prisoners become mentally ill in prisons, and the nature and quality of imprisonment; · Provision of mental health service
s in prisons; · Provision of secure hospital services instead of prison placement; and · Continuing support and services when the person leaves prison (see Bradley, 2009). In this paper I want to identify at least three ways in which change may be mobilized in some of these areas. These are (a) litigation raising rights issues, (b) mental health-focussed reforms; and (c) monitoring for protection of rights. Rights-focused litigation
One important source of rights-focused litigation is the prohibition under the European Convention, and its international equivalent the ICCPR, on cruel, inhuman or degrading treatment or punishment, and the requirement that people held in detention are held humanely. The European Prison Rules and UN Standard Minimum Rules elaborate the requirements. These conventions are not self-executing they have to be enforced by litigation, or through the reports of monitoring bodies (discussed further below). There is a substantial body of case law now about the application of the European Convention on Human Rights (adopted by the UK in its Human Rights Act 1998) in this context. In cases alleging that prison conditions and/or a poor level of medical care provided constitute cruel, inhuman or degrading treatment or punishment, the European Court of Human Rights has made it clear that, whilst Article 3 enshrines `fundamental values' and an absolute prohibition, its application in the prison context is not breached by suffering which is simply the `inevitable' result of legitimate punishment. The ill-treatment has to reach a `minimum level of severity' to fall within Article 3. Whether Article 3 has been breached is `in the nature of things, relative' and `depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.' (Dybeku v Albania, 2007 ). At the same time, there is no need to prove a positive intention to humiliate or debase: crowded and unsanitary conditions of detention have been held to breach Article 3 without evidence of any malevolent intent (eg Badila v Romania 2011 ). The tests applied in a particular case where the applicant's health is at issue are `(a) the medical condition of the prisoner; (b) the adequacy of the medical assistance and care provided in detention, and (c) the advisability of maintaining the detention measure in view of the state of health of an applicant.' (Dybeku ; Slawomir 2009 ) As an example, in 2007 a prisoner suffering from paranoid schizophrenia, who received very limited psychiatric support and was generally held with other healthy prisoners in overcrowded conditions in Albanian prisons, was found to have suffered inhuman and degrading treatment in Dybeku v Albania (2007). In another case, a Polish prisoner suffering from epilepsy, schizophrenia and other mental disorders, brought a complaint under Article 3 after being held in various locations in overcrowded cells, without adequate psychiatric care, arguing that he should have been held in a psychiatric institution (Slawomir v Poland 2009). The Court concluded that the conditions in which Slawomir had been held `would not be considered appropriate for any person deprived of his liberty, still less for someone like the applicant with a history of mental disorder and in need of a specialized treatment' (Slawomir 2009 ). It held that there had been a breach of Article 3. In deciding that the conditions breached the Convention, the Court observed: Undeniably, detained persons who suffer from a mental disorder are more susceptible to the feeling of inferiority and powerlessness. Because of that an increased vigilance is called for in reviewing whether the Convention has been complied with (Slawomir 2009 ).
Whilst emphasising that Article 3 did not automatically require the release or transfer of a detainee to a civil hospital where they were suffering an illness that was difficult to treat, the Court observed that it does require the state to ensure that prisoners are held in conditions in which `given the practical demands of imprisonment, their health and well-being are adequately secured.' (Slawomir 2009 ). The State in Dybeku argued that the conditions of detention in Albania should be benchmarked against other Council of Europe member states
who were similarly in the process of reform, and that they `should be assessed with reference to the economic situation of the State and the standard of living of the country.' (Dybeku 2007 ). The Court rejected the arguments based on either cost generally or country relativity: The Court does not underestimate the significance of the financial difficulties referred to by the Government ... However, it observes that many of the shortcomings outlined above could have been remedied even in the absence of considerable financial means. In any event, a lack of resources cannot in principle justify detention conditions which are so poor as to reach the threshold of severity for Article 3 to apply. (Dybeku 2007 ) In Renolde v France (2008) a prisoner suffering from acute psychosis had been disciplined for an assault and placed in solitary confinement as punishment for a 45 day `sentence'. He had been provided with medications for his psychosis but had not been supervised in taking the medications. He did not take the medications, complained often of hallucinations and distress, and ultimately hanged himself. His sister brought an application under Article 2 of the European Convention (the obligation to protect life) as well as Article 3. The Court found both Articles to have been breached. It observed that when deciding whether treatment or punishment breaches Article 3, in the case of mentally ill people, the Court has to: ...take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment (Renolde 2008 ) The tension between treating a mentally ill prisoner as a patient, and the reality of the prison setting, was highlighted in the additional (concurring) judgment written by one of the judges. The judge specifically criticized the statement by the doctor responsible for the in-prison medical service that staff would not verify whether a patient took the prescribed medications as this was `contrary to the principle of trust which underlies the therapeutic alliance in a hospital environment'(Renolde 2008 ). Judge Villiger commented: While such trust might be an important element of a relationship between a medical doctor and a responsible and mature patient, I fail to see how such trust can at all be established with a vulnerable person such as the applicant's brother, who in addition had already attempted to commit suicide. Whilst there have been a number of successful cases, remedies from these findings in favour of the prisoner applicants have been limited. The courts have generally only urged improvements in facilities, and on occasions awarded a small sum of financial compensation. It has been left to the State to implement (or not) the recommend changes. In Slawomir the court observed that ...it is primarily for the State concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under ... the
Convention, provided that such means are compatible with the conclusions set out in the Court's judgment. [In this case] the Court considers that the respondent State must secure, at the earliest possible date, the adequate conditions of the applicant's detention in an establishment capable of providing him with the necessary Psychiatric Treatment
and constant medical supervision. (Slawomir 2009 )
Two US cases offer interesting alternative approaches to remedies for litigants. In 2010 the US Supreme Court
confirmed (by a majority of 5:4) the decision of a Federal judicial panel to order that approximately 34,000 prisoners to be released from Californian prisons as a remedy for deplorable conditions of overcrowding breaching constitutional guarantees.6 This represented the imposition of a population cap of 137.5% of prison capacity.
The Supreme Court hearing followed many years of interim hearings in cases filed on behalf of prisoners with `serious mental disorders' who could not obtain adequate care and whose `unbearable conditions result[ed] in a substantial suicide rate', and on behalf of prisoners with `serious medical conditions' who could not obtain necessary treatment. (Strutin, 2012: 1325). An order for prisoner release population reduction was seen as the only option in view of the system-wide overcrowding and clear incapacity or unwillingness of THE STATE OF CALIFORNIA
(already in financial difficulties) to implement the necessary reforms. In fact no prisoners were ultimately released: new legislation was immediately passed moving nonviolent, minor offenders from state to local (county funded) jails. These reportedly have their own overcrowding problems (Strutin, 2012: 1340).
However it appears that a more indirect impact of Brown v Plata has been legislative and judicial moves to reduce the use of imprisonment, or at least the length of prison terms (Strutin, 2012: 1342). Some suggest, on the other hand, that the drivers to reduce levels of imprisonment have simply been financial: that the current financial problems across at least the northern hemisphere are pushing governments to reduce the high daily cost of imprisonment.
In a second example more useful to the individual litigant - the Supreme Court of Montana in Walker v Montana (2003) held that Walker's constitutional rights
had been breached and ordered direct monitoring by the court of reforms to the system in the relevant prison We [require the prison] to conform the operations of its administrative segregation units to the requirements of this Opinion and to report, in writing to [the] court within 180 days as to the actions taken. The District Court may, thereafter, order inspections or further remediation as in that court's discretion is necessary under the circumstances (paras. 83-84). Mental health-focused reforms
The quality and level of mental health services in prisons has been the subject of many reports and reforms in the UK. In 1996 Lord Ramsbotham, then Chief Inspector of Prisons for England and Wales, published a discussion paper, `Patient or Prisoner'. Beginning with the statement of the principle of equivalence that `Prisoners are entitled to the same level of health care
as that provided in society at large'- he recommended that prison health care should become the responsibility of the National Health Service to ensure that this
Brown v Plata 131 S.Ct 1910 (2011). The three-judge panel was convened under the special provisions
of the Prison Litigation Reform Act 1995.
entitlement was fulfilled (HM Inspectorate of Prisons for England and Wales, 1996). This recommendation was implemented effectively by 2006 with the establishment of regionally based `in-reach' teams. Lord Ramsbotham also called for improvements in the speed with which seriously mentally ill patients were transferred from prisons to NHS hospitals or regional secure units. In 2009 Lord Bradley revisited the issue of delay in transferring people from the prisons system to hospital, and recommended a 14-day maximum waiting target. He identified various obstacles, including communication breakdowns across the system, lack of bed availability and security issues, but also `different attitudes and perceptions of prison and hospital staff towards mental illness and offenders' (Bradley, 2009: 105). The then Chief Inspector of Prisons commented in her Annual Report
in 2010 that the Bradley review had not yet led to major changes in mental healthcare in prisons, noting `particular concerns about the lack of primary mental health services, and of daycare provision for those less able to cope on the wings' (HM Chief Inspector of Prisons for England and Wales, 2010: 29). In 2011, following the release of the Green Paper, Breaking the Cycle (2010) the Government announced that they had allocated Ј5m `to put into 100 "diversion sites" across England and Wales as part of their plan to create a national liaison and diversion service by 2014' (Travis, 2011). Other drivers for reforms in Europe include the WHO and European monitoring bodies. The European Committee for the Prevention of Torture (CPT), the monitoring body established under the European Convention for the Prevention of Torture, notes in its Reports its successes in achieving reform but also, on occasions, that its recommendations from previous visits have not been adopted (as discussed further below). A recent WHO proposal addresses the issue of where prison health care should be located. It proposed in 2010 that general healthcare in prisons should routinely be the responsibility of domestic Ministries of Health rather than the prisons ministry (Hayton et al., 2010). Whilst noting that the capacity of Health ministries to provide high standard care should also be monitored, its report observes that health care is already provided through the general health system in Norway, France, some Australian States
, and the UK. Factors which they highlight as having driven this change in a range of countries included human rights e.g. the requirement under Article 12 of the ICESCR that prisoners are entitled to `the highest attainable standard of physical and mental health' and related concerns about the poor standard of prison healthcare, particularly for people with mental illnesses. Monitoring for protection of rights. There are at least three levels of monitoring that may be useful here: international, national, and local or civil society. International agencies UN and Council of Europe monitoring bodies carry out visits to places of detention, and make reports and liaise with States to achieve reforms. At the Council of Europe level the monitoring body is the CPT. Since 2006 countries have also been ratifying the Optional Protocol to the UN Convention Against Torture (OPCAT). This requires signatories both to develop domestic National Preventive Mechanisms (NPMs) and to provide access for the UN
Subcommittee for the Prevention of Torture (SPT) to make announced and unannounced visits to places of detention. International non-government agencies
such as Amnesty International and the International Red Cross Red Crescent Societies also do important monitoring and reform work on conditions in detention. The UN and European monitoring bodies can do no more than bring issues to the attention of the State and encourage their adoption. They only release their reports with the consent of the State; many state reports are not released. In recent human rights litigation the European Court of Human Rights has noted unfulfilled CPT recommendations when assessing the conditions in dispute. For example in the case of Dybeku (2007) noted earlier, the court cited the CPT report of 2006 stating that `Material conditions of detention were appalling in all the pre-trial detention facilities visited' (Dybeku 2007 ). The CPT report of 2006 expressed frustration that its earlier report had not been implemented, stating that its later visit `demonstrated that not a single of the specific recommendations repeatedly made in this respect by the CPT in previous visit reports had been implemented in practice, despite the explicit assurances given to the contrary by the Albanian authorities' (CPT, 2006: par. 23). In the 2011 case of Badila v Romania the court quoted the CPT's 2008 report, in which the CPT `declared itself gravely concerned by the fact that a lack of beds remained a constant problem ... and that this had remained the case since its first visit to Romania in 1999' (CPT, 2008: par. 70). Resistance to external monitoring was also noted (for example) in the report of the Hungarian Helsinki Committee and the Mental Disability Advocacy Center on Criminal Psychiatric Detention in Hungary (2004). National Human Rights Institutions Most countries have bodies such as human rights commissions and ombudsman offices, which have jurisdiction over prisons and other places of detention. Some receive individual complaints; some also have power to make announced and unannounced inspections. France, for example, has had a National Commission of Security Ethics (CNDS), and created the office of the Contrфleur gйnйral des lieux de privation de libertй following the ratification of OPCAT.7 In England and Wales HM Inspectorate of Prisons has been a proactive monitor of prison conditions for many years. Reports are published, and the office is influential at least in publicising failures to protect the dignity and rights of people in detention. The Prisons and Probation Ombudsman also receive complaints from prisoners, and can report on individual and systemic problems in the system. In 2009, after ratifying the Optional Protocol to the UN Convention Against Torture (OPCAT), the UK established a National Preventive Mechanism (NPM) consisting of 18 existing bodies which visit and inspect places of detention, co-ordinated by the Inspectorate of Prisons as the `head' NPM. The group includes agencies with oversight both of prisons and of hospitals and mental health care, such as the Prison Independent Monitoring Boards, Inspectorate of Constabulary, Care Quality Commissions, Mental Welfare Commission for Scotland, and Scottish Human Rights Commission. National Preventive Mechanisms are
These agencies may subsequently have been disestablished: International Observatory of Prisons
French section (OIP) 2010.
required to have statutory powers and to be granted free access for their visits, and signatory States must agree to publish their reports. Many European countries also encourage the disclosure of information, including information about conditions in detention, with whistleblower protection legislation, the most comprehensive of which include the UK Public Interest Disclosure Act 1998 (PIDA) and the Norwegian Act relating to working environment, working hours and employment protection
. All Australian states (and many in the US) have whistleblower protection legislation. In Australia whistleblower disclosure has led to important public inquiries into conditions, for example, in juvenile detention (Ombudsman Victoria, 2010). The Council of Europe recommended in 2010 that all member states develop comprehensive legislation (Council of Europe, 2010). Local agencies and representatives of civil society Given space limitations, I will mention the prison monitoring bodies; many other localized visiting groups also exist to act as `the eyes of the community' in places of detention. Civilian prison monitoring is carried out in various European countries, such as the Prisons Monitoring Boards in Turkey, and the Independent Monitoring Boards (IMBs) and Visiting Committees in the UK. The UK IMBs are located at individual prisons. Members visit prisoners and staff and identify and follow up complaints. They also present public reports
on their concerns. In their report in 2012 summarising key issues of concern to IMBs through 2011, the National Council of the IMBs emphasised that the `issue of healthcare and particularly mental health, were repeatedly raised and of long-term concern' (National Council of the Independent Monitoring Boards, 2012: 3). Conclusion The problems of incarcerating the mentally ill are only too clear. All of the evidence indicates that the numbers (and proportion) of offenders with mental illnesses and disabilities will continue to increase. Increasing numbers will enter the prisons, and therefore add to the numbers of people for whom prison itself creates or exacerbates existing mental illness. In addition to the individual human damage caused, prison management will also become more challenging, with increasing numbers of prisoners who are difficult to manage, difficult to communicate with, and at greater risk of harm to themselves and others. The solutions are less clear. In this paper I have outlined three possible drivers for change: human rights litigation, governmental and regional reforms, and monitoring. All have limitations, and all confront often hostile public opinion
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