Miscarriages of JusticeUK

Neuro/Psychotics & Psychiatrists

"Neurotics build castles in the air.
Psychotics live in the castles.
Psychiatrists collect the rent".

By Shahida Begum

There is consensus amongst the general public, experts and, progressively, the courts, that the mentally ill and those at risk of self harm should not be held in solitary confinement. The logic is obvious - conditions of sensory deprivation, social isolation and confinement may cause or even exacerbate mental illness. 

"The already mentally ill, as well as persons with borderline personality disorders, brain damage or mental retardation, impulse-ridden personalities, or a history of prior psychiatric problems or chronic depression ... For these inmates, placing them in [isolation] is the mental equivalent of putting an asthmatic in a place with little air to breath" (Madrid v. Gomez judgement, 1995).

Yet, it is common knowledge that Close Supervision Centres ("CSCs") are widely used to manage "mentally ill" prisoners, and that mentally ill prisoners are overrepresented in segregation units. Prisoners who are deemed as dangerous or chronically disruptive are placed in prolonged solitary confinement (CSC) as a prison management tool.

Surely, the particular vulnerability of mentally ill prisoners means that prison authorities must be especially vigilant in their treatment, control and protect their physical, mental and moral integrity.

Recent admissions from the CSC Operational Manager confirms that some prisoners will present with high levels of self-harming behaviours due to their clinical needs'...the presence of mental disorder is not uncommon within the unit'.

Notwithstanding whether selection of a mentally ill prisoner into the CSC system is intelligibly referred to as a "security measure", or even "essential" the common practice of using CSCs in effect IS to "isolate risk". The latter contradicts the very notion of whether agreed policies and protocols are truly applied in a way respectful of human dignity.

The concept of human dignity is, of course, stated at a very high level of generality. And as such, holds within it the seeds for much debate. We can say that whilst there is a concept of human dignity with a minimum core, there are several different conceptions of human dignity, and these differ significantly because there appears to be no consensus legally, politically or philosophically on what makes up the core of the concept.

These differences in approach are particularly important in the context of prisoner's rights, where the crucial question is how far, if at all; the state is under a positive duty to safeguard human dignity. I have discussed the implications of article 3 in my previous article published in October 2010 "Intrinsic Worth" and do not propose to repeat the legislation here. 

Article 2 states everyone's right to life shall be protected by law. The state has positive and negative duties. Basically, the duty to refrain from taking life in an arbitrary fashion and the obligation to ensure that life is safeguarded which may involve taking steps to protect life. There is no derogation from this requirement. 

The duty to protect life was considered in Edwards V UK (2002) 12 BHRC 190. A prisoner was killed by a cell mate with history of violent behaviour and mental illness. It was held that the prisoner was exposed to a 'real and serious risk'. The response of authority was inadequate and there was a violation.

Savage v South Essex NHS Trust [2008] UHHL 74 concerned an escape of detainee under MHA 1999. It was held that there was a real and immediate risk of suicide and the failure to take all reasonable steps to protect patient amounted to a violation.
One method of challenging treatment of those subject to the CSC system is judicial review. A prisoner would typically ask that judges strike down legislation legitimising the use of CSC to contain mentally ill prisoners on the ground that it breaches human rights (the Convention prohibits in absolute terms torture or inhumane or degrading treatment). Although at first sight this appears pretty straight forward, it is particularly controversial because a body of unelected judges calls into question the decision of a democratically elected body, leading to the so-called 'counter-majoritarian difficulty'. These tensions have led to a continuing debate about the legitimacy of judicial review, particularly of this strong type, and how far it is compatible with notions of democratic self-government. In all the jurisdictions which have adopted dignity in their judicial decision-making, judicial review in the human rights context is more or less controversial, constantly aiming to justify itself, its methods, and its reasoning.

Nonetheless, we see judges often speaking in terms of 'common principles for a common humanity', in practice this is often rhetoric, however well intentioned and sincere. We appear to have significant consensus on the common core, but not much else.

A key justification often cited by the government is the need to "manage dangerous and disruptive prisoners". The problem however, is that notable studies suggest that solitary confinement is not an effective tool for managing those defined as 'problem' or 'difficult' prisoners and may even be counter-productive. Overseas, a study of the 'incorrigible units' in North Carolina in the late 1950s, where prisoners were subjected to a regime of strict and prolonged solitary confinement, concluded that "the over-all impact of the incorrigible unit in penal practice probably is one that intensifies tendencies to criminal attitudes and behavior" (McCleery, 1961:306). Other studies identified isolation regimes as central factors leading to prison riots.

A study of 'order and discipline' in prisons in England and Wales concluded that "to impose additional physical restrictions, especially of a severe character, will almost certainly lead to a legitimacy deficit; and that deficit may well in the end play itself out in enhanced violence" (Bottoms, 1999:263).

Data on prison violence before and after the introduction of special security (or 'supermax') units, similarly indicates that the isolation of prisoners classified as dangerous or disruptive did not result in a reduction of prison violence in general population prisons prolonged solitary confinement may have very serious health consequences for the individual concerned and may also affect his chances of successful reintegration into society.

Psychiatrists no doubt collect the rent, but even renowned Professor Andrew Ashworth of All Souls College, Oxford is permismistic about the ability of anyone to predict dangerousness accurately. 

The prison often cites that they are attesting to balance the competing rights of the prisoner (article 3) and security, and when a matter raised the question of dignity, conceded that "they have failed to achieve the right balance". We could convert the argument, something like, the greatest good for the greatest number. This is utter nonsense. Save to say that people who pride themselves for thinking logically sometimes believe their own excuses.

The fact of the matter is, the issue whether a prisoner's right and the interest of security can be 'balanced' against each other does not arise in the context of a challenge to the CSC system based on article 3. To engage in 'balancing' is clearly a metaphor in this context. We can balance an amount of sugar against an amount of flour because both have mass and weight and we therefore have a common measure to compare them by. Frequently, however, rights and other values are said to be incommensurable.

There are various other ways of addressing the problem of such conflicts. An approach which is often, perhaps increasingly, adopted is for the court to adopt proportionality as a tool by which it can structure its analysis of the conflict where it raises article 8 issues. First, where a limit is placed on a claimed right, the court should first establish whether that limit furthers a legitimate aim; secondly, the court should consider whether the means chosen to achieve this aim are rationally connected to that aim; thirdly, the court should consider whether the measure is proportionate in the strict sense, meaning that the court should consider whether there are any means available to achieve the objective which are less restrictive of the claimed right, and whether the benefits of restriction outweigh the harms
A problem which is commonly identified with proportionality analysis, however, is that the proportionality test requires the injection of a significant element of value judgement in at least two particular parts of the test: in determining whether the aim of the restrictive measure furthers a legitimate objective, and in carrying out the final balancing exercise. Courts applying the proportionality test when considering treatment of a prisoner within the CSC system will need to determine what constitutes a legitimate aim and its 'weight', and what the 'weight' of the right is that is being limited by the challenged measure. Rather than solving the problem of incommensurability, the court is still faced with the problem. 

The use of dignity is particularly associated with the proportionality analysis, whether that word is used or not. One important institutional function for dignity is to provide a language in which courts can indicate the weighting given to particular rights and other values in this context. When a particular right or other value is described as engaging dignity, this indicates that the court considers that considerable (even in some cases overwhelming) weight should be attributed to it.

It is significant that dignity is so often drawn on where it is absolutely necessary to hold a handful of extremely dangerous prisoners in separation from others. Nevertheless, they should be afforded increased in-cell provisions, access to programmes, opportunities for meaningful human contact and so on and so forth. Those suffering from mental illness must not be placed in solitary confinement and under no circumstances should the use of solitary confinement serve as a substitute for appropriate mental health care. The CSC system is not only in need of fundamental restructuring; it requires it. 

Shahida Begum is a Criminal Solicitor at Cooper Rollason solicitors. She is also a member of Midlands Human Rights Association and the founder of CEIA a charity specialising in human rights advocacy.