People with mental disorders in the community come into contact with the Criminal Justice System in a variety of ways. These may include at the point of arrest, whilst they are on bail facing criminal charges or whilst they are serving a community sentence with or without a requirement to undergo mental health or substance misuse treatment. Equally there are those who are released on licence who are liable to be recalled to prison if they do not keep up the conditions of their licence or if they re-offend.

The prevalence of mental disorder for those in the community who in some way or another have come in contact with the Criminal Justice System is high. For instance, 7–15 % of arrestees are identified by custody officers as having a mental disorder. Thirty-three percent of OASys (Offender Assessment System) assessments, which is a system of risk assessment, completed at presentence report or during supervision in the community, revealed a psychological or psychiatric diagnosis (Home Office 2006). Hatfield et al. (2004) undertook a cohort study of 467 individuals in Probation approved premises. Staff members reported that 25.1 % of offenders had a known psychiatric diagnosis, 34.3 % had drug misuse and 30.6 % had alcohol abuse problems. Similarly, Keen et al. (2003) identified that 13.6 % of the total probation population were in contact with the local Mental Health Trust. Finally, a study by Brooker C, Fox C, Barrett P, Syson – Nibbs L (2008, Assessment of offenders on probation caseloads in Nottinghamshire and Derbyshire. Report of a pilot study, unpublished) of two probation areas in England using a health needs assessment approach using a variety of structured assessment tools in a sample of offenders (N = 183) indicated that 15 % of the sample had contact with mental health services in the preceding 12 months and 27 % had been seen at some point in their lives by mental health services. The majority of diagnoses reported by offenders was depression and/or anxiety, 44 % were identified as being at risk of alcohol abuse or dependence and 39 % of the sample was identified as being at risk of substance abuse.

In principal mentally disordered offenders in the community have access to mental health services similar to the rest of the population. This arrangement is that of a tiered provision with General Practitioners providing treatment for common mental health problems, Secondary Mental Health Care Services providing treatment for enduring mental illness and complex personality disorders as well as substance abuse and inpatient services for those who require psychiatric hospitalisation. However there are two problems. Firstly, many of the mental disordered offenders have a complex mixture of social disadvantage as well as psychiatric problems and in common with other such socially and psychiatrically disadvantaged populations they either do not access available services or if they do so such access is intermittent and crisis driven such as them seeing a mental health professional at an accident and emergency department following an overdose or injuries received in a fight or at the police station following arrest when concerns are raised about presence of mental health problems. Even those who do access some services do not do so in a sustained manner and often dip in and out of treatment. For instance, Brooker C, Fox C, Barrett P, Syson – Nibbs L (2008, Assessment of offenders on probation caseloads in Nottinghamshire and Derbyshire. Report of a pilot study, unpublished) found that nearly 39 % of offenders had visited an accident and emergency department or an National Health Service (NHS) walk in centre at least once in the previous 12 months. Secondly, the mentally disordered offenders often have a range of sub-threshold pathologies which may not meet the service criteria for individual services. For instance, they may have had brief psychotic episodes which may or may not be related to use of illicit drugs but these are not considered to amount to an enduring mental illness and hence do not cross the threshold for acceptance by a Community Mental Health Team. Similarly, they may have borderline intelligence or mild learning disability and hence may not be considered to have severe enough problems to require treatment and support from a learning disability service. The same is the case for substance abuse in that they may be poly substance abusers but not dependant on opiates or not considered to meet the access threshold of substance misuse services. Hence, although combination of complex social problems and sub threshold psychiatric pathologies may result in a very poor psychosocial functioning, they are not accepted by diagnostically defined services or the motivation or resources required to engage such a difficult population are not forthcoming. Consequently, those mentally disordered offenders in the community who have a severe mental illness such as Schizophrenia, do indeed receive a reasonable package of treatment but those who fail to reach that threshold, despite overall very poor psychosocial functioning, do not do so. Whilst treatment for patients with personality disorder exists in the community, unfortunately due to their impulsivity, poor motivation and lack of overall stability offenders are often not considered suitable to receive such treatment. Hence, the ethical challenge is that of MDOs in the community being denied access to the appropriate service because they do not meet the criteria when marked against service provision that is by and large structured based on diagnosis rather than overall level of psychosocial dysfunction and disorder. There is also of course the question of how much of this acceptance/rejection by services is consciously or otherwise as a result of MDOs being considered to be ‘not nice’ and deserving and who would have been described by Herschel Prins as the unloved, unloving and unlovable.

Forensic-psychiatric care in England and Wales is provided in hospitals of different levels of security (Sainsbury Centre for Mental Health 2007). While it is possible for MDOs on a Hospital or Prison Transfer Order to be treated in a general psychiatric setting, most MDOs are admitted to high or medium secure settings. There are currently three high secure hospitals and in excess of 50 medium secure units. Service provision in secure hospitals has undergone numerous changes since the inception of medium secure services in the 1970s in terms of capacity, organisation, patient composition, length of stay, etc. While we have seen a decrease in capacity in high secure beds of about 20 % over the past 5 years, the overall number of MDOs detained in secure psychiatric settings has risen annually for more than a decade (Ministry of Justice 2010a). Between 1996 and 2006 the forensic patient population has increased by 45 % (Sainsbury Centre for Mental Health 2007). Length of stay has also risen with about a quarter of patients being detained for over 10 years. At the end of 2008 there were just under 4,000 patients detained, about 700 of those in high secure settings. A significant proportion of the expansion of medium secure beds can be attributed to the growth of private sector provision. Those service may be under particular pressures, e.g. in terms of bed occupancy, which may impact upon overall length of stay.

Of particular relevance for prison psychiatrists is the fact that transfers of sentenced prisoners have increased representing now over 60 % of annual admissions to secure forensic settings. Significant changes have also occurred in the provision of services for MDOs with personality disorders (PD). Three hundred places for treatment of individuals with so-called Dangerous and Severe Personality Disorders (DSPD) have been established in recent years, about half in prison and half in high secure hospitals (Völlm 2009) although the future to these services is currently uncertain. Nevertheless there is an increased expectation that psychiatrists provide care for those with PD while traditionally individuals with a primary diagnosis of PD have often been excluded from medium secure settings.

Historically health services in prisons were provided by prison medical officers and nurses employed by prison services. Although they provided a reasonable degree of physical and mental healthcare to prisoners including a screening of all offenders coming to prison within 24 h by the prison doctor, they were nevertheless subjected to a fair degree of criticism. A number of problems were considered to be responsible for this including professional isolation, lack of clinical leadership, etc. Concerns about issues such as death in prisons led to the publication of a thematic report on healthcare in prisons, Patient or Prisoner? (HM Inspectorate of Prisons 1996). This report was clear in stating that healthcare in prisons was not being provided to the same standard as in the wider community and a joint working group was set up between the Department of Health and the Home Office resulting in The Future Organisation of Prison Healthcare paper (HM Prison Service, NHS Executive 1999). Following this report the commissioning responsibility for prison healthcare was transferred from prisons to Primary Care Trusts which then triggered a significant change in the commissioning and provision of healthcare in prisons. In 2001 Changing the Outlook, a Department of Health policy document, advocated a more specific policy for modernising of mental health services in prison. It recommended the establishment of multi disciplinary mental health in-reach teams to provide specialist services for prisoners in the same way as Community Mental Health Teams do in the wider community. These in-reach teams were to follow the principals of mental healthcare recommended in the National Service Framework (Department of Health 1999) and as such they by and large concentrated on prisoners suffering from enduring mental illness. Prison appointed mental health nurses and doctors provide the primary mental health care for common mental health problems such as anxiety and mild depression. Integrated drug treatment services and other voluntary sector as well as prison appointment professionals provide treatment for substance abuse. In addition there are some prisons such as Grendon Underwood, Dovegate, Frankland and Whitemore which provide psychological treatment, along therapeutic community and CBT lines for patients with Personality Disorder and treatment of offending behaviours. Some of the prisons have inpatient units which have 24 h supervision by nurses and/or healthcare officers. These healthcare centres often house patients who are severely disturbed either as a result of a psychotic illness or those who are at a very high risk of self harm, many of them awaiting transfer to National Health Service secure hospitals. Psychiatrists, other medical specialists and healthcare professionals often visit the prisons either to provide regular sessions or on request.

However, despite the above, challenges remain in mental health care provision for prisoners, and whilst progress has been made, the hope and expectation of equivalent care similar to the wider community has not been consistently achieved. This is for a variety of reasons which include lack of appropriate integration between primary and secondary mental healthcare and substance misuse services in prisons, poor resourcing of prison mental healthcare in comparison to the needs of this population and lack of high quality clinical leadership and management across the board.