Clearer sentencing guidelines offer more support for vulnerable adult offenders
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Clearer sentencing guidelines offer more support for vulnerable adult offenders

Nick Evans Health journalist

Strengthening the legal rights of people with learning disabilities and mental health disorders

New guidelines for sentencing adult offenders with mental health disorders and learning disabilities came into force in England and Wales at the start of October.

Learning Disability Practice. 23, 6, 7-9. doi: 10.7748/ldp.23.6.7.s3

Published: 26 November 2020

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Picture credit: iStock

They state impairments or disorders should always be considered by the courts in terms of the offender’s ability to understand and participate in proceedings. They also detail factors judges and magistrates should consider when deciding whether culpability is reduced.

The guidelines have been welcomed for providing much-needed clarity in this area. While some of the 130+ existing offence-specific sentencing guidelines mentioned learning disabilities and mental health as factors to consider, there was nothing setting out in detail how the individual needs of these groups should be considered.

The guidelines were produced by the Sentencing Council, an independent body that promotes transparency and consistency in sentencing. It says it was prompted to do so by the increasing numbers of people with mental health conditions and learning disabilities coming before the courts.

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Picture credit: Neil O’Connor

‘It will be important to check over time where people go – prison or hospital – and if that was right for them’

Debra Moore, independent learning disability consultant nurse

Figures suggest 40% of people detained in custody have a mental health condition, though because there is no routine monitoring it is impossible to be sure of the scale of the issue.

Data on learning disabilities are even harder to identify, although the charity the Prison Reform Trust believes about 30% of the prison population has a learning disability.

Independent learning disability consultant nurse Debra Moore says the guidelines are much needed.

‘People have been lobbying hard for this for some time. It is a human rights issue. Finding yourself in the courts system is scary for anyone, but if you have a mental health condition or cognitive impairment there is no way you can present yourself in the best way, so it is great that we now have this guidance.’

Who is covered by the sentencing guidelines?

The Sentencing Council guidelines set out principles on sentencing offenders in England and Wales with mental disorders, developmental disorders or neurological impairments and apply to adults who at the time of the offence and/or sentencing have one of the following:

  • » Mental disorders such as schizophrenia, depression or post-traumatic stress disorder

  • » Developmental disorders such as autism or a learning disability

  • » Neurological impairments, including dementia

Which is right, prison or hospital?

But she says it raises some important questions. ‘Might there be an increased risk of people just being diverted to hospitals, where they can end up spending a long time, much longer than any sentence?

‘Hospitals will be appropriate for some, but it will be important to check over time where people go – prison or hospital – and if that was right for them.’

RCN justice and forensic health forum vice-chair Paul Hanna says: ‘We have needed more consistency for some time. You see too many people with mental health conditions going to prison when they are clearly unwell. Often the crimes are a cry for help.’

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‘There is much greater awareness now about the support that is needed’

Ann Norman, RCN professional lead for learning disabilities, justice and forensic nursing

Prison Reform Trust head of policy Mark Day says that the problems facing people with learning disabilities are more related to the way reasonable adjustments are made and their needs catered for throughout the process.

‘For example, you may be asked to report to a probation officer at certain times, but someone with a learning disability may have difficulty with that. We want to see the courts take these factors into account.’

Pre-sentence reports can be requested if an individual is found guilty or has pleaded guilty. These are usually produced by the probation service, but can involve input from health professionals. The guidelines will help inform both of these and ensure greater consistency is applied.

RCN professional lead for learning disabilities, justice and forensic nursing Ann Norman says the roll-out of liaison and diversion teams is also key.

The teams involve psychiatrists, social workers and mental health nurses – with learning disability nurses either employed directly or providing input from community teams.

Ms Norman says the teams are now not far off full implementation across England and, together with the sentencing guidelines, feel like a positive step.

She says learning disability nurses are increasingly being recruited to work in the criminal justice and prison systems, as well as being involved in writing medical reports and pre-sentencing reports.

Weaknesses remain in the system

The Equalities and Human Rights Commission published a report in June that looked at the pre-trial stages from arrest and custody through to appearing in court.

It found that people with learning disabilities and mental health problems were disadvantaged by the system.

The report highlighted the ‘maze of processes and procedures’ and ‘complicated language’ as particular barriers, while the increased use of video hearings was creating problems in communication for offenders with vulnerabilities and the identification of those vulnerabilities.

Fast facts

40% of people detained by police in England and Wales have a mental health condition

(Source: National Institute for Health and Care Excellence)

47% of male prisoners in the UK have a traumatic brain injury

(Source: Disabilities Trust Foundation)

Screening for signs of learning disabilities

To improve identification of learning disabilities and mental health disorders the report recommended the introduction of universal screening of detainees, citing the example of Kent and Medway NHS and Social Care Partnership Trust’s criminal justice liaison and diversion service.

The service was concerned the police approach was overly focused on whether a detainee’s health was immediately at risk, such as from self-harm, so it set up a team to assess everyone entering police custody.

Non-clinical staff screened people in custody, guided by tablet-based software that looks for signs of learning disabilities.

All information gathered is fed directly into a detainee’s NHS medical records and support is arranged if needed. If they are charged, data is sent to their defence team.

The courts also receive advice on any recommended adjustments for a hearing.

The Equalities and Human Rights Commission report said the screening was identifying more people who needed support.

It said substance misuse could often mask mental health conditions, and that those with mild to moderate learning disabilities may not have a formal diagnosis.

Lancashire and South Cumbria NHS Foundation Trust consultant learning disability nurse approved clinician Christine Hutchinson agrees that this is a problem.

Sentencing Council guidelines: key points

  • » An impairment or disorder should always be considered by the court, but will not necessarily have an impact on sentencing

  • » No adverse inference should necessarily be drawn if an offender had not previously either been formally diagnosed or willing to disclose an impairment or disorder

  • » A formal diagnosis is not necessarily required, but if it is deemed to be needed a report by a qualified expert should be drawn up

  • » For serious offences the court must also consider protection of the public

  • » Culpability may be reduced if an offender was impaired at the time of the offence

  • » Sentences include community orders, mental health and drug and alcohol treatment requirements, and custody

  • » A community order with a mental health treatment requirement may be a proper alternative to short- or medium-term imprisonment

Coping strategies and techniques

‘People with learning disabilities can develop coping strategies and techniques that mean it is “not so easy to spot”,’ says Ms Hutchinson. She says an alternative to universal screening is training for staff in the criminal justice system.

If vulnerabilities are not picked up in the first place, the potential benefits from liaison and diversion or the new sentencing guidelines will simply be lost. ‘People won’t receive the support they need or the reasonable adjustments that should happen.’

Find out more

Disabilities Trust Foundation. tinyurl.com/Disabilities-Trust-Foundation

Equality and Human Rights Commission (2020) Inclusive Justice: a System Designed For All. tinyurl.com/Equality-human-right-inclusive

Kent and Medway NHS and Social Care Partnership Trust – Criminal Justice Liaison and Diversion Service. tinyurl.com/liaison-and-diversion-service

National Institute for Health and Care Excellence (2017) Mental Health of Adults in Contact with the Criminal Justice System tinyurl.com/NICE-mental-health

Prison Reform Trust. prisonreformtrust.org.uk

Sentencing Council (2020) Sentencing Offenders with Mental Disorders, Developmental Disorders, or Neurological Impairments tinyurl.com/sentencing-offenders

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