Treating Without Consent In Prison

There is a significant burden of mental health disorders within the prison population. Typically about one in seven prisoners in western countries have psychotic illnesses or major depression.

Frequently those suffering an acute episode of a mental illness have limited inside into the nature of their condition or the need for therapeutic intervention. The provisions within the Mental Health Act 1983 (as amended 2007) which allow for compulsory treatment of mental disorder do not apply in prison settings. Those patients in custodial settings who are suffering a mental disorder of a nature or degree that warrants their detention in hospital for either their own health and safety or for the safety of others should, therefore, be transferred to an appropriate hospital setting under the provisions of Part III of the Mental Health Act 1983 (as amended 2007), where they may be liable to receive compulsory treatment if necessary. UK Government guidance recommends that this process should be completed within 14 days; however, current waiting time for transfer under the provisions of sections 47 & 48 of the Mental Health Act 1983 (as amended 2007) far exceed this.

Consent In Prison


There is therefore the potential for patients to remain untreated in a custodial setting for prolonged periods whilst awaiting transfer to hospital. Potential harms that could manifest as a result of such periods of untreated illness could include; a patient not eating or drinking sufficiently due to the deterioration of their psychotic or affective illness to the point of a catatonic stupor or due to persecutory beliefs regarding food or water being contaminated. Physical harm could result when a prisoner, as a consequence of agitation, confusion or paranoia assaults someone, is restrained in an emergency situation or are themselves assaulted by others because of their behaviour. Suicidality and self-harm are more likely to occur in the context of an acute and untreated mental disorder and, as noted in the literature, delay in treatment of acute psychosis can potentially lead to worsening of long-term outcomes.

Understanding Mental Capacity

The Mental Capacity Act 2005 provides a framework for making health and social care decisions for people who lack capacity to make a decision about their own care. It applies to all people aged 16 years and over in England and Wales, including those in prison, and provides a legal framework to rationalise the care of mentally ill people who are not detained under the provisions of the Mental Health Act.  Furthermore, case law concerning Article 3 of the European Convention on Human Rights (as enacted in the UK by the Human Rights Act 1998) has evolved to include situations involving prison healthcare. Article 3 is the only absolute right and states that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ Article 3 case law has extended beyond concern about the commission of acts to include ‘omissions’ such as the absence of appropriate medical treatment.

Capacity to consent to treatment for mental disorder should be assessed in all patients being treated within a prison, where there is reason to set aside the presumption of capacity, using the Mental Capacity Act’s two-stage test.

When, on the balance of probabilities, a person is assessed as lacking capacity to consent to treatment for mental disorder, a best interest assessment should be completed. This should include the likelihood of restraint being required in order to administer medication.  Valid and applicable advanced decisions must also be taken into account.

Under the provisions of section 6 of the Mental Capacity Act 2005, restraint can be used as long as health/social care staff have reasonable belief that the person lacks capacity, that restraint is necessary to prevent harm to the person and is a proportionate response to the seriousness of that harm. The reality of a custodial setting is that it is likely prison staff would carry out any necessary restraint. This would require agreement from the prison and consideration of Prison Service Order (PSO) 1600 – Use of Force, which is the framework under which ‘use of force’ by prison staff is considered lawful.

Reconciling the Act with PSO 1600 is potentially problematic. Prison Service Order 1600 outlines the use of force as justified and lawful only where it is reasonable in the circumstances, it is necessary, no more force than is necessary is used, and it is proportionate to the seriousness of the circumstances. To determine whether the action is necessary to prevent harm, the following risks are suggested: risk to life, limb, property and the risk to the ‘good order of the establishment’ (PSO 1600 Section 1.1:

In circumstances where it is found that a patient lacks capacity to consent to treatment for their mental disorder and the assessing clinician believes compulsory treatment under restraint, within the custodial setting, is necessary to prevent harm to the person, prior to their transfer to hospital, a multi-agency best interest case conference should be convened. This meeting should where possible include senior members of the Mental Health In-Reach team, prison officers from CAU or the relevant House Unit, representatives from the prison Safer Custody department, IMCA, Independent Monitoring Board, and, where relevant, primary healthcare to assist considering the best interests of the individual.

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