Trends in the number of restricted patients in England and Wales 2003–2016: Implications for forensic psychiatry services

Introduction

Part III of the Mental Health Act 1983 informs the management of persons concerned in criminal proceedings or under sentence. The Act can be used as a tool to divert offenders to hospital for a period of assessment or treatment. This may be before or after sentencing. Instead of receiving a custodial sentence, a mentally disordered offender may receive a hospital sentence if it is felt by the court that it is the most appropriate way to dispose of the case. Additionally, an offender may be sentenced to hospital for a period of treatment before completing a custodial sentence. The transfer of a prisoner to hospital, or the imposition of a hospital order at sentencing, may also involve the use of a restriction order. These ‘restricted’ patients are subject to special controls by the Secretary of State for Justice due to the level of risk they pose.

A hospital order, under Section 37, may be imposed by the courts when a person is convicted of an imprisonable offence but is admitted to psychiatric hospital or placed under the guardianship of a local social services authority rather than receiving a custodial sentence. It needs to be shown that the person suffers from a mental disorder of a nature or degree that makes it appropriate for them to be detained in a hospital for medical treatment. It must be seen that psychiatric disposal is the most suitable method of dealing with the case when considering the nature of the offence and the character and antecedents of the offender.

A hospital order may also be accompanied by a restriction order, under section 41. This can only be imposed by the Crown Court (a court of criminal jurisdiction which deals with serious offences and appeals referred from the magistrates’ courts) having taken into account the nature of the offence, the antecedents of the offender and the risk of them committing further offences if set at large, and deemed it necessary for the protection of the public from serious harm so to impose special restrictions. These include that the power to grant leave, the power to transfer the patient to another hospital and the power to discharge said patient lie with the Secretary of State for Justice. The First-Tier Tribunal (Mental Health) in England or the Mental Health Tribunal for Wales also has powers to discharge a ‘restricted’ patient. Regular updates from the responsible clinician are required for submission to the Secretary of State for Justice. When a patient receives a conditional discharge, they are still subject to the recall powers of the restriction order. In such a case, a patient who suffers with a relapse of their mental illness may require admission back to hospital for treatment. Whilst it can be seen as a very restrictive measure, especially as the potential for recall could be indefinite, it helps manage patients for whom significant risks to others are associated with their abnormal mental state.

Courts also have the option of imposing a custodial sentence but directing that the prisoner first be admitted to hospital for treatment. This is called a hospital direction and would also be accompanied by a restriction order. This is known as a ‘hybrid order’, as it potentially combines hospital treatment with a custodial sentence. It was introduced by an amendment to the Mental Health Act 1983, section 45A, introduced in the Crime (Sentences) Act 1997. It has been little used since its introduction.

Whilst in custody, offenders with a psychiatric illness can access treatment in prison. In-reach mental-health services are a vital part of the offender pathway, and some prisons contain inpatient health-care units. However, whilst in prison, offenders are not detained under the Mental Health Act. They must consent to treatment, which can prove difficult for those who are severely unwell and lack insight. At times, prisoners who have become psychiatrically unwell may move between the wing and the inpatient health-care unit as the mental-health team work towards recovery and manage symptomatology. It may become necessary to transfer prisoners out to psychiatric hospital, often into a secure bed, for a period of assessment and treatment.

Provisions under sections 47 and 48 allow for an incarcerated offender, either sentenced or on remand, respectively, to be transferred to hospital if they are suffering from a mental disorder of a nature or degree that makes it appropriate for them to be detained in a hospital for medical treatment. Almost always, the use of section 47 or section 48 is accompanied by a section 49 restriction order whereby the person is subject to the special restrictions set out in section 41 (see above). Unlike section 37/41, sections 47/49 and 48/49 are made not by the court but by two medical practitioners, one of who needs to be approved under section 12(2) of the Mental Health Act. For prisoners on remand who are identified as suffering from a mental disorder, the use of section 48/49 allows for urgent transfer to hospital to access treatment rather than waiting to be directed to hospital by the courts, such as by using section 37. At a London prison, it was found that using section 37 as a means of transferring prisoners to hospital actually led to the more severely unwell prisoners staying in prison for longer. ¹ The net effect of medical intervention was to delay release from custody. Because of the administrative delays inherent in the system of medical referral and hospital admission under section 37 of the Mental Health Act 1983, it was those prisoners who were most ill who tended to remain in prison for the longest periods.

Research has shown a high prevalence of mental disorder within adult,^2,3 adolescent ⁴ and older ⁵ British prison populations. High rates of psychiatric symptomology have also been recorded in adult prisons outside of the UK.^6–8 Psychosis is a common symptom seen in the adult prison population.^2,3 Male adolescent prisoners transferred to hospital are also more likely to suffer with psychosis. ⁹ The rate of psychosis was found to be higher in the remand prisoner population,^9,10 even at four or five times the level seen in the general population.^11,12 Studies have linked prison overcrowding to episodes of self-harm. ¹³

Research has also highlighted that despite a declining adolescent custodial population (nearly 3000 in 2004 to around 1000 in 2015), there remains a consistent rate of adolescent prisoners transferred to psychiatric hospital in England and Wales, using sections 47/49 and 48/49. ⁴ That paper highlighted the complex nature of this population, who can have severe psychiatric co-morbidities.

This paper aims to explore trends and identify any patterns when examining adult mentally disordered offenders who are subject to sections 47/49 or 48/49 or sections 45A or 37/41 of the Mental Health Act 1983.

Method

This study looked at retrospective data pertaining to the use of sections 37/41, 45A, 47/49 and 48/49 between 2003 and 2016. The data were gathered from information published by the Ministry of Justice in their statistics bulletin. ¹⁴ None of the data are patient identifiable. A Freedom of Information request was made to ask for information on numbers of restricted patients, but this did not identify any information not published in the statistics bulletin.

The aim of the study was to look at trends in the use of restriction orders over time. Statistical testing was not employed, as the authors did not consider that it would add to the understanding of the data. We aimed to look at data from 2003 to 2016 with a view to what might happen in the future, particularly with respect to the need for secure psychiatric hospital beds.

Prisoner data were collected through the Ministry of Justice bulletin. ¹⁴ Data regarding the population of England and Wales were gained from the Office of National Statistics.^15,16 Data have been incorporated into tabular and graph form.

Results

Figure 1 demonstrates a steadily increasing number of patients detained in hospital with restriction orders since 2003, with a total of 3118 in 2003 compared to 4679 in 2016. There was an increase in patients transferred from prison, as well as in patients admitted via other means.

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Figure 1.

Restricted patients detained in hospital in England and Wales.

The number of new admissions under section 37/41 (Figure 2) saw an increase between 2003 (n=193) and 2016 (n=273), although the course was more variable, with peaks in 2008 and 2009 for both male and female admissions but a decline towards 2016. There were more admissions under section 37/41 for male patients than for female patients for all years between 2003 and 2016. In 2016, female admissions under section 37/41 made up only 9.5% of all admissions under section 37/41. Whilst the total number of admissions under section 37/41 saw an increase between 2003 and 2016, there was a decline for female patients, with 37 in 2003 compared to 26 in 2016.

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Figure 2.

Number of new admissions under section 37/41.

For transfer of prisoners to hospital, increases were also seen in male patients detained under section 47 (326 in 2003 vs. 459 in 2016) and section 48 (368 in 2003 vs. 413 in 2016), and female patients detained under section 47 (31 in 2003 vs. 44 in 2016) and section 48 (60 in 2003 vs. 64 in 2016). The years 2008 and 2009 also show some of the highest use of section 47 transfers for male and female patients, although this is not the case for section 48. There was an increase in the use of section 48 for male patients between 2009 (n=357) and 2015 (n=486), as well as for female patients between 2009 (n=58) and 2015 (n=80).

The number of ‘restricted’ patients admitted to high secure hospitals stayed fairly steady (Table 1). Most of the increase is accounted for by admissions to ‘other hospitals’ (relating to low and medium security). Some of the increase can be accounted for by a small rise in the number of prison transfers, but the majority can be accounted for by ‘other admission types’, which have markedly increased (Table 2).

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Table 1.

Restricted patients admitted to hospital in England and Wales by hospital type.

	2003	2004	2005	2006	2007	2008	2009	2010	2011	2012	2013	2014	2015	2016
Total number of patients	1086	1329	1350	1440	1458	1501	1539	1543	1585	1549	1564	1647	1686	1610
Admitted to high secure hospitals	101	130	112	111	84	110	124	92	84	120	117	93	120	121
Admitted to other hospitals	985	1199	1238	1329	1374	1391	1415	1451	1501	1429	1447	1554	1566	1489

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Table 2.

Restricted patients admitted to hospital in England and Wales by admission type.

	2003	2004	2005	2006	2007	2008	2009	2010	2011	2012	2013	2014	2015	2016
Total number of patients	1086	1329	1350	1440	1458	1501	1539	1543	1585	1549	1564	1647	1686	1610
Transfers from prison service establishment	722	831	834	894	873	926	940	945	953	979	990	1061	1010	980
Other admission types	364	498	516	546	585	575	599	598	632	570	574	586	676	630
○ Hospital order with restriction order	198	288	292	303	333	343	355	331	334	291	294	278	321	273
○ Recalled after conditional discharge	121	149	187	196	210	190	201	211	209	218	211	238	268	255
○ Transferred from Scotland, Northern Ireland, etc.	0	0	0	1	2	3	0	1	0	0	2	1	2	1
○ Unfit to plead	39	51	31	32	31	30	29	37	62	41	45	37	50	56
○ Not guilty by reason of insanity	2	8	4	10	4	7	9	7	8	6	4	13	12	17
○ Hospital and limitation direction	4	2	2	4	5	2	5	11	19	14	18	19	23	28

Discussion

There were a steadily increasing number of patients subject to a restriction order in England and Wales between 2003 and 2016. Some of this increase was driven by an increasing number of prison transfers (Figure 1). The prison population increased between 2003 and 2016 (Figure 3). It therefore makes sense that the number of prisoners with a mental disorder in the prison population also increased, which is reflected by the increased use of sections 47 and 48. A recent study over a longer timescale showed that If the rate of detention per 100,000 of population is worked out, there has been an eightfold increase in prison transfers between 1984/1985 and 2015/2016. ¹⁷ Most of this increase happened in the 10 years following the introduction of the new Mental Health Act in 1983. During the same time period, ¹⁷ other ‘forensic’ sections such as section 37 varied in rate by year to year without showing a sustained increase. Our results mirrored this, with the numbers of new admission under section 37/41 being variable year by year rather than increasing strongly (Figure 1). Even variable rather than strongly increasing numbers of new admissions can lead to an overall increase in the number of patients subject to restriction orders if admission times are long. ¹⁸ A sizeable proportion of patients subject to restrictions are subject to them for very lengthy periods. ¹⁸

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Figure 3.

Numbers of prisoners transferred under section 47 and 48.

Other means of admission via a restriction order such as recall after conditional discharge, unfit to plead, not guilty by reason of insanity and hospital and limitation direction (section 45A) have increased during the time period and account for some of the overall increase in the number of restricted patients (Table 2).

The number of conditionally discharged ‘restricted’ patients who have then been recalled to hospital has doubled in the time studied (121 in 2003 vs. 255 in 2016), an increase in greater proportion to the number of section 37/41 orders imposed. Illicit substance use is a common co-morbidity in psychiatric cohorts and may account for some of this increase, in particular when taking into account the wealth of novel psychoactive substances that have become available over this time. ¹⁹

The number of offenders found unfit to plead has also increased (39 in 2003 vs. 56 in 2016). The verdict of not guilty by reason of insanity (NGRI) remains very uncommon, although there has been an 850% increase in its use. Interestingly, similar trends have been seen in several other countries. ²⁰ The legal test for insanity is tightly defined. According to the M’Naghten rule, ²¹ the party accused must at the time of committing of the act be labouring under such a defect or reason, from disease of the mind, as not to know the nature and quality of the act he was doing or he did know it, that he did not know what he was doing was wrong. In reality its application is limited to a small proportion of extremely psychotic defendants. Its rise in use in England and Wales may be due to lawyers’ and psychiatrists’ increasing awareness of more flexibility in disposal following a NGRI verdict. ²⁰

Although the use of section 45a accounts for far fewer ‘restricted’ patients, there has been a 700% increase, from 4 in 2003 to 28 in 2016. Section 45A, referred to as a ‘hybrid order’, combines both a hospital sentence and a custodial sentence. Initially, the offender will be directed to hospital to receive treatment before finishing their sentence in prison. Its increased popularity may be accounted for by the flexibility it allows psychiatric hospitals in allowing the return of prisoners to custody when the appropriate hospital treatment is concluded. The Vowles judgment suggested that the use of section 45A be considered when sentencing mentally disordered offenders. ²² Its use has risen markedly since the amendment made by the Mental Health Act 2007 came into force in November 2008. One potential disadvantage of it for high-risk patients is that if the patient remains in hospital and is not returned to prison, the patient cannot be conditionally discharged and therefore cannot be recalled to hospital under the conditions of a restriction order. The transfer of a mentally disordered offender back to prison is also controversial, as arguably prisons are not good places to manage mental disorders.

The expansion in the number of restricted patients admitted to hospital has not been to high secure hospitals but to ‘other’ hospitals which are medium and low secure hospitals. This reflects the fact that high secure services have actually been reducing in bed numbers as medium and low secure provision has been increasing. ²³ The specialty of forensic psychiatry has expanded, with a move away from detaining patients in high secure hospitals (Ashworth Hospital, Broadmoor Hospital and Rampton Hospital) coupled with the opening of more medium and low secure beds. In addition, the development of ‘enhanced’ low secure beds and women’s enhanced medium secure services beds has also led to many more offenders now being managed at a lower security level than before. ²⁴

There has been evidence for some time that the number of forensic beds is rising across Europe, including in the UK.^25,26 Similar trends have been seen across many countries in the world. ²⁷ This trend of increasing bed numbers in secure services has been suggested to be a form of ‘reinstitutionalisation’.^28,29 Some have speculated that the process of closure of open psychiatric beds (deinstitutionalisation) has resulted in a process of ‘transinstitutionalisation’^28,29 in which poorly supported people in the community with mental illness commit offences and then become detained in secure hospitals under restriction orders.

The categories of mental disorder allowing detention under the Mental Health Act were simplified to a single definition of ‘mental disorder’ in 2007, which arguably expanded the range of patients who could be detained under the Mental Health Act and hence possibly become subject to Ministry of Justice restrictions. There is evidence that following the introduction of the 1983 Mental Health Act, the rate of detention tripled or quadrupled over the next 30 years, depending on the measure used. ¹⁷ This large increase was for civil detentions rather than ‘forensic’ sections. The increase accelerated following the amending of the Act in 2007. ¹⁷ This increase in detention has been in the context of reducing psychiatric bed numbers (apart from forensic services). The increase in detention rate with lower bed numbers has only been possible, with short admission times and acute beds being reserved for the most severely unwell. This fits in with the ‘transinstitutionalisation’ argument, but currently it is not clear if there is a link between civil detentions under the Mental Health Act and admissions to secure hospital with restriction orders. ¹⁷

Other possible causes for the increase in the number of restricted patients are increases in prison population leading to more prison transfers and general attitudes to risk containment in society becoming more cautious. ²⁵ Attitudes to risk containment becoming more cautious could lead to an increase in the size of the prison population if judges were more inclined to give custodial sentences. ²⁵ Improved prison mental-health teams may be leading to improved ‘case finding’ in prisons and thus an increased number of prison transfers. ³

The data show that the vast majority of patients subject to restriction orders are male (Figures 2 and 3). Higher numbers of male patients, compared to female patients, reflect a general tendency for male patients to present with higher levels of aggression than female patients. Restriction orders are put in place to prevent the public from serious harm, and it follows that they are more likely to be put in place following violent offences. Women represent a small percentage of arrests for violent crime. ¹⁶ The percentage of women in prison around the world is low, ³⁰ and British data ¹⁶ reflect this (4018/86,260 (4.7%) as of 6 October 2017).

About 1500 more patients in England and Wales were subject to restriction orders in 2016 compared to 2003. It would be surprising if this trend does not continue, particularly given expected population growth in England and Wales. ¹⁵ Increases in the number of patients subject to restriction orders is likely to be one of the factors driving expansion in secure services in England and Wales, suggesting that the expansion of secure services is unlikely to be over. The increase in the number of patients detained in secure conditions is a worldwide phenomenon.^25,27 The reasons for it are poorly understood and speculative in nature. They are deserving of further study, given the consequences for the patients and the high financial cost of these services.