On Wednesday 10th January 2018, a debate on Mental Health In Prisons took place in Westminister Hall. The debate was brought by Labour MP for St Helens South and Whiston Marie Rimmer. During the debate, the Liberal Democrat MP and former Minister for Health in the Conservative-Liberal Democrat Coalition Government from 2011-2015, Norman Lamb, spoke of what he described as “an enormous faliure of public policy, for which no single government are responsible, that so many people with significant mental ill health, learning disabilities or autism end up in our prisons innaproprately”. It is learning disabilities that this post will be dealing with.
Statiscally, the numbers of people in the prison population who have a learning disability range from as low as 1-10%, as provided in the March 2018 NHS England Service Specification for Integrated Mental Health Service for prisons in England, 20-30%, as provided in the 2017 NHS Health Scotland Reducing offending, reducing inequalities document, the October 2014 Criminal Justice Inspection Northern Ireland “The Safety of Prisoners Held By The Northern Ireland Prison Service, the 2017 Irish Penal Reform Trust “Progress in the Penal System, a framework for penal reform, the UK’s Prison Reform Trust Bromley Briefing for Autumn 2017, to over 30%, as provided by statistics from the Department for Education and Education and Skills Funding Agency, to as as high as 52%.
In a collection of reports by the Criminal Justice Joint Inspection on the treatment of offenders with learning disabilities within the criminal justice system, published in 2014-2015, the first covered the period from arrest to sentencing, the second covered the period from prison to post-prison support. I shall be focussing on the second report, but will include sections of the first report where appropriate. In the report covering prison and post-prison support, concerns were raised regarding screening to identify those with a learning disability and that “although some probation trusts had problems identifying offenders with learning disabilities, there was an improvement compared to what we found in our first inspection”. (For example, the first report found that “an accurate estimate of the number of people with learning disabilities within the criminal justice system is impossible because of poor interpretations about what constitututes a learning disability and a faliure to properly identify and record this issue by all the key agencies at all points in the criminal justice process”.
In the Bradley Report, published in 2009 by Lord Bradley, published to provide a review “to determine what extent offenders with mental health problems or learning disabilities could be diverted from prison to other services“, similar concerns were raised
Even when talking to professionals in the field, I found that there was a lack of consensus in defining the boundaries between learning disability, borderline learning disability and learning difficulty. The problems with definition are due, in part, to the lack of agreement on the most effective methods of identification and assesment”.
“Adding to this, there is currently no standardised measure used to identify offenders with learning disabilities. Differences in definition and identification mean that the prevelance of learning disabilities and difficulties is very hard to estimate”.
A learning disability is described in the Department for Health’s Valuing People: a new strategy for learning disability for the 21st Century(Department of Health, 2001) as;
- a significantly reduced ability to understand new or complex information and to learn new skills;
a reduced ability to cope independently;
- an impairment that started before adulthood, with a lasting effect on development.
The follow up inspection found that the Offender Management System, developed by the National Offender Management (now Her Majesty’s Prison and Probation Service), used to “provide standardised assesment of offenders risks and needs” “either did not refer to the offenders learning disability or incorrectly assessed the effect the learning disability might have on thier offending behaviour or thier ability to fully engage in the work planned for them”. Additionally, the report found that “there was an over-reliance on disclosure of a learning disability by the offender/prisoner or thier family” and that whilst “there were pockets of good practice….and going the extra mile…these were far too often the exception rather than the norm, both in prisons and the community”. As regards to the statistics provided by the Department for Education and Education and Skills Funding Agency, which measure participation in education whilst in prison states “Learners with learning difficulties and/or disabilities are based upon self-declaration by the learner”.
Both reports include the views of those with learning disabilities and that of day to day life within prison. Those of whom the report spoke to did not feel staff understand thier individual needs and how thier learning disability might impact upon thier behaviour or ability to cope with prison life. Issues were also raised regarding understanding of an access to prison processes. For example, making a complaint meant relying on the help of other prisoners or staff. In terms of staff, the report finds that “only a small number of probation and prison staff interviewed had recieved training in how to work with people with learning disabilities but that the vast majority wanted to improve their work with this group“.
Aditionally, almost half the probation staff interviewed were not aware of any national or local guidance and none were aware of guidance on sentance planning. One such piece of guidance is the Prison Service Instruction 32/2011 on Ensuring Equality, issued by the NOMS Agency Board (now HM Prisons and Probation Service) on behalf of the Ministry of Justice.
1.1 Governors must ensure that all staff are made aware of this Instruction
1.2 All staff must adhere to the standards of behaviour set out in this Instruction and follow the mandatory requirements of the policy.
1.3 The mandatory actions are designed to ensure the following:
– Management: personal leadership by Governors, supported by a functional head with lead responsibility for co-ordinating work on equalities issues, and all managers taking personal responsibility for equalities issues within their areas. An annual local equality action plan based on relevant management information, discussed regularly by the SMT, with managers and staff held to account for progress.
– Monitoring: equality monitoring information on all prisoners collected and recorded; service provision monitored; and monitoring data published.
– Equality Impact Assessments: EIAs completed to a satisfactory standard in accordance with an annual EIA programme, devised through a risk prioritisation process.
– Incident Reporting: an effective system for reporting and responding to incidents of discrimination, harassment and victimisation.
– Procurement and Partnerships: all conducted in accordance with equalities legislation.
– Disability: prisoners encouraged to disclose disabilities. Reasonable adjustments made and recorded. Disabled prisoners located appropriately. Courts and escort contractors informed of disabled prisoners’ needs as appropriate.
8.1 Governors must ensure that efforts are made to identify whether a prisoner has a mental or physical impairment of any form. Governors must ensure that prisoners are encouraged to disclose their disability status and that procedures are in place to record this information (both on reception and subsequently) and to treat it confidentially. Not all prisoners will be aware of their disabled status and staff must be proactive in identifying the specific needs of all prisoners (further guidance on learning disabilities is at annex H).
8.2 Governors must consider on an ongoing basis what prisoners and visitors with a range of disabilities might reasonably need and ensure that reasonable adjustments (see annex G) are made for disabled prisoners and visitors. Governors must consider whether prison policies and practices, the built environment, or a lack of auxiliary aids and services could put a disabled prisoner or visitor at a substantial disadvantage and if so must make reasonable adjustments to avoid the disadvantage. If a request for reasonable adjustments is made by a prisoner or visitor it must be considered and the outcome documented.
8.3 Governors must ensure that where it is not possible to make the reasonable adjustments required the prisoner is transferred to another appropriate establishment. Where there is a dispute between prisons about where a disabled prisoner is best located, the Deputy Director of Custody must be contacted.
8.4 The transfer of a disabled prisoner must not be delayed or prevented on the basis of their disability (unless the proposed receiving establishment cannot provide appropriate facilities).
8.5 Governors must ensure that where a disabled prisoner is required at court, the escort
contractor and Clerk of Court are informed of the details of the disability and the needs of the prisoner.
A.1. For something to be illegal under the Act it has to relate to a protected characteristic. These are described below.
A.1. As a public authority, it is unlawful for NOMS in the exercise of its public function to do anything that constitutes discrimination, harassment and victimisation. This covers treatment of prisoners and others such as visitors. Discrimination, harassment and victimisation are defined as follows.
Discrimination arising from disability
A.1. This is a particular form of discrimination where someone treats another person less favourably because of something arising in consequence of their disability. However, there is no discrimination if the treatment can be justified as a proportionate means of achieving a legitimate aim.
G.1. NOMS is under a duty to make reasonable adjustments. A reasonable adjustment is an adaptation to change a provision, criterion or practice, or to change a physical feature, or to provide auxiliary aids or services in order to avoid placing a disabled person at a substantial disadvantage. The duty is an anticipatory one, meaning it is necessary to consider on an ongoing basis what prisoners and visitors with a range of disabilities might need and whether a current way of doing things or the built environment puts disabled persons at a substantial disadvantage. In prison, a reasonable adjustment should enable a disabled prisoner to take a full part in the normal life of the establishment.
How do we decide what is reasonable?
G.2. The law does not specify what factors you should take into account when considering what is ‘reasonable’. In the event of any legal action, reasonableness is determined by the courts on an individual basis.
G.3. You may need to take some of the following factors into account when considering what is reasonable:
· how effective any steps would be in overcoming the difficulty;
· how practicable it would be for you to take these steps;
· how disruptive taking the steps would be;
· the financial and other costs of making the adjustment;
· the extent of the prison’s financial and other resources;
· the amount of any resources already spent on making adjustments;
· the availability of financial or other assistance.
What level of cost should we bear?
G.4. The courts consider the Prison Service to be a single entity, similar to a large organisation like a supermarket chain. Compare what would be reasonable at a small corner shop and what could be expected from a large supermarket. The supermarket, as part of a chain, will be expected to bear a higher level of cost than a small independent retailer. The same applies to us. Because we are part of a large organisation, we cannot use the cost of an adaptation as reason not to provide it, unless it is significant and out of proportion to the benefit the individual will receive. The courts will look at the funds available across the entire organisation, rather than the budget for the establishment in question.
G.5 An example might be the provision of a lift. It could be reasonable for us to specify a lift in a new build, as part of the overall cost, but not to install one in an existing old building at significant cost, to help a single prisoner. In this situation, providing an alternative location for the facilities would be acceptable. However, when specifying the requirements of a new build, we must ensure it is legally compliant, as failing to consider access at that point would not be reasonable.
G.6. It is important to remember that reasonable adjustments extend beyond physical changes such as the building of lifts and ramps. A reasonable adjustment could include a decision to provide an auxiliary aid (such as special computer software) or a change to a particular policy or practice which puts a disabled person at a disadvantage (such as ensuring that the local IEP scheme does note penalise behaviour that is the consequence of a disability).
Where should we locate the prisoner?
G.7. It is not normally appropriate to locate a prisoner with a disability in healthcare unless he/she needs that level of medical care. Placing a prisoner on healthcare does not allow them to take a full part in the regime of the establishment, and blocks a bed that may be needed by a prisoner who is actually ill. Disabled prisoners should have reasonable adjustments made to enable them to live in normal accommodation. Where this is not possible the prisoner should be transferred to another appropriate establishment. ‘Appropriate’ means in accommodation suitable for his/her disability, in the right category, with access to the required interventions, work and education, and other regime activities.
Ensuring access for all prisoners
G.8. An access survey will help to identify those areas which cause physical access problems. However physical access is not the only issue. Access to courses and activities may be restricted for prisoners with learning difficulties or sensory problems. For example, if you have to apply for the gym by completing a form, and you have learning difficulties or are blind, you may not be able to complete the form. If fire alarms are all audible, a deaf prisoner may be unaware that he/she should evacuate. Access to information might also be restricted, in which case providing the information in accessible formats will almost always be a reasonable adjustment. Some of these issues may become apparent from complaints, but many prisoners will not complain and it is necessary to consider whether issues are present in advance of any complaints. You must, therefore, make sure that prisoners are aware that they can either get help or use alternative methods to access facilities.
Who can provide advice?
G.9. There is a range of organisations and people to whom you can go for help with reasonable adjustments:
· Talk to the prisoner – always discuss what support is needed with the prisoner, as each individual will have different ways of managing their disability.
· Specialist organisations – in the case of an individual reasonable adjustment for a specific prisoner, the best source of information will be organisations that deal with the particular disability. General reasonable adjustments are designed to make prison life accessible to the largest number of prisoners possible. You can get advice on ways to make the prison, facilities, information and activities more accessible from the specialist organisations.
· Charities – there are charities and other third sector organisations which specialise in supporting people with particular disabilities, and can often supply aids and adaptive technology or recommend suppliers.
· Healthcare staff – can advise on the suitability of some aids and may be able to source things like hearing aids, walking supports etc.
· Occupational therapists – for individuals entering custody who need aids and adaptations it is important to consider a referral to a local specialist, such as an occupational therapist, for an assessment of activities of daily living (ADL). This will determine that they are able to manage in the prison setting. Prisoners who develop a disability in prison should also be referred for advice on personal aids and adaptations. It is not always in their best interest to be provided with ‘off the shelf’ aids and adaptations.
G.10. Further guidance on and examples of reasonable adjustments are available on the Equalities Group intranet site or from firstname.lastname@example.org
H.1. People with learning disabilities are over-represented in the prison population. Estimates vary but it is thought that between 7% and 14% of prisoners have learning disabilities, compared to 2% of people in the community.
H.2. People with a learning disability find it harder than others to learn, understand and communicate. Taking these difficulties into account will facilitate improved management of prisoners who otherwise might simply be labelled difficult or unwilling to engage.
Identifying prisoners with learning disabilities
H.3 Identifying a possible learning disability allows a prisoner to be directed for more comprehensive needs assessments through healthcare and education. This process is speeded up if a prisoner’s abilities are assessed on reception into prison. The extent of some prisoners’ learning disability may mean that they are unable to articulate that they have a learning disability.
H.4. If a prisoner does not think they have learning disabilities it is not for staff to inform them otherwise. The situation should be handled by health professionals. However, this does not mean that an obvious reasonable adjustment which would assist a prisoner should not be made simply because the prisoner does not consider themselves to have a disability. This would include going more slowly through information with a prisoner who has difficulties in understanding it. Prisoners with learning disabilities will often quickly forget what they have been told, therefore regular reinforcing of the information may well be necessary.
Location within the prison
H.5. It is important to place prisoners with learning disabilities in the part of the prison that will best allow staff to monitor and promote their safety and security. This could be in a main wing, a vulnerable prisoner wing, or in some cases in the healthcare centre if he/she needs that level of medical care. Wherever they are located, access to those parts of the regime identified in a prisoner’s sentence plan is crucial.
Communicating with prisoners with learning disabilities
H.6. You may find the following helpful when communicating with prisoners with learning difficulties:
· Explaining to the prisoner exactly why they are in a new situation, and what they should expect.
· Using the prisoner’s name at the start of each sentence.
· Visual aids and clear and simple language will help to increase the prisoner’s understanding.
· Breaking large amounts of information down into smaller chunks.
· Preparing the prisoner for each stage of the communication, for example, ‘Mr Jones, I am now going to ask you some simple questions’ or ‘Mr Jones, I am now going to explain what we are going to do.’
· Being patient and calm whilst communicating. Do not rush the prisoner as they may need longer to process the questions and think about their answers.
H.7. It may not be clear that the prisoner does not understand what is happening or what is being said. Some prisoners with learning disabilities will agree with a statement or a question simply to please you or because they are frightened. Some prisoners will pretend they understand what you are talking about as they are embarrassed to admit they have not understood.
H.8. A prisoner with learning difficulties may be unable to complete forms on their own. This may include applications for their meals, their canteen, to request visits from family and friends, and to make a complaint. You may need to assist some prisoners in making these applications; this may involve filling in a form in accordance with the prisoner’s instructions.
H.9. Prisoners with learning disabilities may also need help with the following tasks:
· Reading and writing letters.
· Reading prison information, understanding what the information means, or both.
· Telling the time.
· Cleaning clothes.
· Making telephone calls.
H.10. Rules and regulations may need to be explained to the prisoner, rather than expecting the prisoner to read up on what these are on their own.
H.11. Prisoners, subject to appropriate risk assessment and supervision, can be employed to assist prisoners with learning difficulties to manage their daily routines.
Incentives and earned privileges
H.12. It is important that a prisoner’s learning disability, and any behaviour which is a consequence of that learning disability, should not affect a prisoner’s incentive and earned privileges level. A prisoner’s learning disability may impact on interpersonal relationships and the understanding of instructions, and this should be taken into account when making decisions relating to that prisoner’s incentive and earned privileges level.
H.13. Appropriate and reasonable adjustments should be made to ensure that prisoners with learning disabilities are not excluded from work. Where appropriate, adjustments to procedures and alternative formats for information may need to be provided. A prisoner may need to have a process explained in a simpler manner than it is explained to other prisoners.
H.14. Any adjustments arising from a prisoner’s learning disability need to be fed into sentence plans. Interventions may need to be adapted to ensure that they are appropriate for prisoners with learning disabilities. Activities should not exclude prisoners with a learning disability.
H.15. Further information can be found in the Department of Health publication ‘Positive Practice, Positive Outcomes: A handbook for professionals in the criminal justice system working with offenders with a learning disability’, available at: http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_124743
In the 2014 report, as regards to screening and identification of those with learning disabilities, inspectors were told that reception staff were reliant on indirect information, that is, the person self-disclosing thier disability, previous involvement with adult social services or attendance at a school for special educational needs, although information was sometimes recorded on the Person Escort Record or documents that accompanied the individual on arrival into prison. Aditionally, screening for a learning disability was not consistently available and that reception staff had often not recieved any training on learning disabilities to support thier screening role. The report found that only one prison HMP/YOI Parc had a screening process during the induction into prison which asked social, communnication, literacy, numeracy, attention and co-ordination questions. When speaking to inspectors, they were told “Although there is a financial cost in screening all prisoners on thier induction into the prison, the cost is worth it due to reductions in the use of segregation and the use control and restraint”.
HMP/YOI Littlehey prisoners told the report that they had been diagnosed with a learning disabilities or ASD since thier arrival into prison through the prisons’ clinical psychologist and that these prisoners expresed thier gratitude for having had someone at the prison who had championed getting them a diagnosis. Liason officers told inspectors that thier principal source of information for identifying those with a learning disability was the healthcare department, usually mental health or, in some cases, an LDN working in the prison, though identification was also made through other departments within the prison, which the report says made it difficult for us and establishments to get a complete list of those with an identified disability in each prison. If a learning disability was suspected later in the prison process, the process would be for staff to refer the prisoner on to the mental health team for further assesment. The report recommendation was that a all prisons introduce a screening tool for learning disabilities with referrals for formal assesment when necessary and that prison govenors ensure that all offenders with a learning disability are indentified on arrival in prison.
Inspections for all prisons identified in the 2014 report were conducted over 2015-2016. As regards HMP Bronzefield, a womens prison, the prison identified 26.4% of the population as having a disability and disability assistants or ‘buddies’ helping women with everyday activities.
At HMP Littlehey, the prison identified 32% of the population as having a disability, with 34% being aged 50 or over and all new arrivals declaring a disability were seen by a prisoner equality co-ordinator who collected physical and mental health information from them to inform an initial needs assesment, but concerns were raised regarding safeguards for confidential information and not all night staff were aware of prisoners subject to personal emergency evacuation plans and whilst there were up-to-date plans for prisoners with disabilities, they were too generic and not multidisplinary, that is does not take account of different and changing suituations.
At HMP New Hall, the prison identified 26.5% of the population as having a disability and ‘buddy’ peer workers helped women with everyday activities and personal emergency evaculation plans but concern was raised by some disabled prisoners as regards to safety and respect, the report recommending the negative perceptions of women with disabilities….in our survey should be better understood and any issues addressed.
At HMP YOI Parc, inspectors found two boys with disabilities. Each had thier day-to-day care managed through a supported living plan, which detailed any additional support they might need and staff caring for these boys were knowledgable about thier needs.