International Journal of Law and Psychiatry 36 (2013) 185187
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International Journal of Law and Psychiatry
Editorial
Prisons and mental health: Introductory editorial: Hospitalizing mentally ill patients
Once there was little difference between prisons and mental hospi-
tals. Both conned and sequestered from the rest of society those who
did not t in or were thought to be harmful, regardless of whether
mentally ill or not. Neither institution provided meaningful treatment
or humanitarian care even to the most mentally disturbed. Mentally ill
persons, debtors, and criminals were all housed together prior to 1800
in English prisons, for example. John Howard began his historic cru-
sade to improve deplorable prison conditions that especially adversely
affected the mentally ill. Howard observed in 1777,
in some few gaols are conned idiots and lunatics. These serve
for sport to idle visitants at assizes, and other times of general
resort. Many of the bridewells are crowded and offensive, because
the rooms, which were designed for prisoners are occupied with
the insane. Where these are not kept separate, they disturb and
terrify other prisoners. No care is taken of them, although it is
probable that by medicines and proper regimen, some of them
might be restored to their senses and to usefulness in life
(Howard, 1977, 459).
As public and private hospitals came into existence and then mod-
ernized, mental patients, including criminal offenders, came to be
treated in mental hospitals (Goshen, 1967, 475). Tuke and fellow
members of the Society of Friends (Quakers) founded the York
Retreat in 1813 in York, England after which Pinel in France modeled
the approach which he termed moral treatment. US hospitals The
Bloomingdale Asylum (branch of the New York Hospital), the Hartford
Retreat (in Frankford, Pennsylvania), the McLean Hospital near Boston,
Massachusetts; and the Hanwell Hospital in England soon followed this
gentler, kinder more helpful approach to severe mental illness (Goshen,
1967, 475).
Eventually prison hospitals were established that were adminis-
tered either by the government's department of mental health or de-
partment of corrections. In either case, security hospitals provided
the level of treatment of a civilian mental hospital and the level of
security required for prisoners. Just as importantly, mental health
services were provided in nonmedical correctional facilities for those
who needed such services, but did not require the high level of
services that only a hospital could provide. At least, this is how the cor-
rectional mental health system was supposed to work. In actuality,
correctional mental health needs were long woefully inadequate and
neglected until, in the United States of America anyway, class action
lawsuits beginning in the 1980s (e.g., Ruiz v. Estelle, 1980), forced
improvements in both ambulatory and hospital correctional mental
health services.
In recent years, the humanitarianism of the 1960s and the 1970s
seems to be yielding to the indifference that existed before. As policy
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makers and electorates struggle with balancing social needs with
scal responsibility, the plight of the most severely mentally disabled,
including the most severely mentally disabled who happen to be in
prison, does not rise to the level of public discourse and political
action. These citizens have neither political clout nor the capability for
advancing their needs. There is no political pushback for neglecting
mental health services and controlling governmental budgets at their
expense.
This special issue on Prisons and Mental Health is intended to
address a variety of mental health problems and services beginning
with pretrial inmates and concluding with post-release ex-prisoners.
Every society must concern itself with the safe management of crimi-
nal offenders and addressing their health needs, which in mental
health can constitute an important component of the penological goal
of rehabilitation. Nonetheless, fundamental differences in terminology
exist that can be somewhat confusing to readers of articles originating
from various countries. In the USA, pretrial defendants are housed in
jails and they are called pretrial detainees, whereas convicted felons
are housed in prisons and are called prisoners. Inmates is often used
generically to refer to either jailed detainees or prisoners. In the United
Kingdom and other countries, pretrial and post-trial inmates are not
separated and the early concept of a gaol has become antiquated.
Pretrial inmates are referred to as remand prisoners. Other facilities
such as the Massregelvollzug in Germany and inmate statuses are
explained in the corresponding articles.
Several articles in this issue deal with the matter of transferring a
mentally disordered prisoner to a security hospital. This is an espe-
cially critical issue today as policy makers seek to reduce mental
health services for a budgetary control. It will require much more in-
terdisciplinary and public policy attention in the near future. For now,
appreciation of the different contexts of hospitalization is desirable.
First, should the decision to transfer an inmate to a hospital be based
on whether the prison unit itself can exibly meet the prisoners' mental
health needs? Or should it be based on an objective standard that
acknowledges that some types or degrees of mental problems are suf-
ciently severe or complicated that they ought to be treated and managed
in a mental hospital, not in a nonmedical jail or prison unit? The rst
more exible model may seem to be more practical in systems with
limited resources. On the other hand, limited resources can be used as
an excuse for not providing sufcient resources for hospital treatment.
Moreover, the rst option can be seductive because of nancial
incentives to improve services more economically in nonmedical
correctional settings.
The second question is, who should make decisions for hospital
transfer? Law judges, treating clinicians, or prison/hospital administra-
tors? Should such decisions be made primarily at the facility of origin or
by the receiving facility? Through mutual agreement or by an outside
186 Editorial
decision maker? How does such decision making incorporate critical
interests, without causing counterproductive delays in transfer?
It seems useful to examine the jail/prison versus hospital place-
ment along a continuum of successive phases of involvement in
the penal system beginning with the initial law enforcement contact
and continuing through to prison release. An individual may require
hospitalization at any point along this continuum, but the situations
are not the same. More or less distinctive phases include initial police
contact, apprehension or arrest, medical and mental health screening
at booking or upon jail entry, during pretrial detainment, during
imprisonment, and upon release from prison.
Initial police contact, apprehension or arrest: Initial contact of law
enforcement with a visibly mentally disturbed individual who has
violated the law can result in the following options:
1. No charges. The suspect is transported to a hospital, an afdavit for
involuntary hold in a hospital is completed if needed.
2. Charge and transport the suspect directly to jail.
3. Charge and rst take the subject to hospital emergency depart-
ment before transporting him to a jail.
4. Various factors, resources, and dynamics can inuence discretion-
ary actions resulting in optimal or poor outcome at the time of
initial apprehension and arrest.
Screening and booking: During medical and mental health screen-
ing and booking at the jail, a question of whether the entering inmate
has a mental disorder in need of transport to a hospital for emergency
care or admission can arise. If needed, a detainee can be transferred to
a general emergency department for emergency assessment, treat-
ment, and management recommendations. Screening and assessment
procedures vary substantially among European correctional systems
(Dressing & Salize, 2009). As before, various factors, dynamics, and
the availability of resources can inuence decisions and actions posi-
tively or negatively.
During pretrial detainment: The pretrial context is similar to impris-
onment to be discussed next but with notable exceptions: The purpose
of detainment is to hold un-convicted, un-sentenced defendants until
trial, payment of bond or other legal resolution. Prison, but not pretrial
detainment, serves the penologic purpose of punishment. There is
extreme variation in the size and resources of individual jails. The cir-
cumstances of jail connement tend to be more restrictive and austere
compared with many prisons.
Moreover, the turnover rate is much higher. Mental health service
needs can be substantial and the suicide risk is much higher for jail
and remand inmates than for sentenced offenders, especially early in
connement. Small jails can compensate for their lack of mental health
staff by making good use of local mental health and emergency medical
services and by transferring more seriously disturbed or high-risk
detainees to larger or better-equipped and staffed jails in the vicinity.
Well-staffed and equipped large jails with medical and psychiatric inr-
maries can handle most detainees with mental disorders including
many who are psychotically disturbed or at high risk for suicide.
Nonetheless, even the best-equipped and staffed jails are not
hospitals. Yet with states diminishing state hospital services to control
state budgets together with the lure of more timely interventions than
hospital transfers that require a court hearing would appear to allow,
there is a growing, seductive trend to attempt to treat even the most
disturbed, treatment-refusing detainees in jail. We are not referring to
innovative local, jail based competence restoration programs for suit-
able defendants (e.g., Guy, Reba-Harrelson, O'Leary, Herndon, & Ash,
2012; Herndon, Reba-Harrelson, O'Leary, Egan, & Ash, 2012). The con-
cern here is acutely disturbed, treatment-refusing detainees for whom
hospitalization is the most appropriate approach and conforms to the
community standard for patients who require hospital-based treatment.
The second issue concerns the delirious detainee for whom emer-
gency medical assessment in a hospital emergency department is in-
dicated. Occasionally, so it seems, some detainees may be evaluated
only supercially because emergency room providers know the
detainee receives custodial care in a total institution, the jail. Once,
the author had to return a detainee from jail to the emergency de-
partment a third time before the detainee was appropriately assessed
and diagnosed with intracranial hemorrhage.
Just as hospital providers can minimize and respond inadequately
to a detainee's mental health needs; they can overrespond and admit
or commit detainees whose risks and problems can be well managed
in the jail. Especially when a jail has to resort to the use of several
hospitals, whose providers are unfamiliar with jail procedures and ca-
pabilities, areas of neglect or excess can occur. A much better arrange-
ment is where the jail has a working relationship with just one or two
security mental hospitals. Unfortunately, this is a model that some US
states are dropping without an equally suitable model in place.
Finally, a detainee can be quite psychotic. He may or may not be
accepting medications, but his condition is extremely deteriorated or
worsening, yet criteria for emergency or involuntary hospitalization
are lacking. Many of these defendants would not have the capacity
needed for competence to stand trial, so hospitalization for the legal
goal of competence restoration offers the best hope for obtaining
appropriate care, reducing the inmate's suffering, and improving his
functioning. Alas, the judicial mills processing incompetency determi-
nations often grind very slowly resulting in unconscionable delays.
There are some examples of successful solutions to this problem
(Findle, Kurth, Cadle, & Mullen, 2009; Olley, Nicholls, & Brink, 2009),
but they are few, and the more typical posture is one of disinterest
and neglect. This serious problem requires a coordinated effort of
multiple agencies and individuals as well as the will and determina-
tion of those with the most leverage to effect improvement.
During imprisonment: Mentally disordered prisoners have long been
a neglected population in terms of their mental health needs. Services
were minimal to absent. Prison or forensic hospitals were described as
facilities that combine the worse features of prisons and hospitals
(Stone, 1976). Eventually in the 1970s, attention was given to the de-
plorable situation and through class action lawsuits in the United States
substantial improvements were made in the amount and quality of
mental health services provided in both purely correctional facilities
and security hospitals. More recently, the level of mental health services
in many quarters has been sliding back or in some cases free falling
backwards. The mentally disordered offender falls from the radar mon-
itor and policy makers look for budgetary reductions that will not result
in political backlash. The United States Supreme Court ordered massive
reduction in the California prison population, because of overcrowding
and inadequate services including mental health services (Brown v.
Plata, 2011). This bold decision will improve mental health services
within the prison system, but it also amounts to kicking the can outside
of the prison system potentially creating as yet other problems.
A recent approach to reduce the state mental health budget has been
to reduce the need for a hospital transfer by putting in place procedures
for involuntary medication of acutely psychotically-treatment refusing
offenders in the nonmedical prison facilities in which they are housed.
This substandard practice is whitewashed by ensuring the involuntary
medication administration in the prison can be done in a timely
fashion without the delay required by procedures needed for transfer.
The United States Supreme Court's Harper decision (Washington v.
Harper, 1990) is cited as legal support for this practice, but Harper him-
self was involuntarily treated in a special treatment facility, not in a
non-medical correctional facility. Another specious argument that can
be made to justify the initiation of involuntary medication in a non-
medical correctional facility is that the offender should be hospitalized
only if his treatment needs cannot be met in prison (see the legal criteria
for the hospital transfer in the US Supreme Court's Vitek Decision (Vitek
v. Jones, 1980)). The problem with this rationale is that correctional
and administrative facilities, possibly under pressure from the central,
more political administration, can declare that the in-prison treatment
is satisfactory without actually approximating the hospital standards
 Editorial 187

and without any uniformly accepted objective standards. A more ratio-
nal approach is one that streamlines the transfer procedures to a hospi-
tal and is based on objective clinical criteria, for which hospitalization is
indicated in the civilian context and seeks other avenues for budgetary
control that do not diminish the quality of care for the severely mentally
ill.
An example of the latter is making pharmacotherapy (intra and
extramural) and extramural behavioral therapy more available for
those committed as sexually violent offenders, increasing the possi-
bility of earlier release and reducing the enormous cost of extended
treatment and connement in a total institution.
On the international level policies and procedures for transferring
prisoners to forensic or general psychiatric hospitals vary according
to national legal regulations and the availability of hospital beds for
prisoners (Dressing & Salize, 2009).
Release from prison: Release from prison is a critical juncture for
many prisoners and the period following discharge is associated
with increased mortality rates from various causes including accident,
overdose, and suicide (Binswanger, Stern, Deyo, Heagerty, et al., 2007;
Pratt, Piper, Appleby, Webb, & Shaw, 2006). Arrangement for continu-
ity in mental health services for mentally disordered offenders is im-
portant. A critical challenge for those requiring outpatient treatment
is rapid follow up to avoid the offender either running out of pre-
scribed medication or having to take medication over an extended
period without a responsible provider in place. A smaller number of
mentally disordered offenders will require hospitalization upon re-
lease from prison. For this, cooperation is needed between prison
and civilian authorities as well as advanced planning prior to the pris-
oners' release date.
This special issue of Prisons and Mental Health was made possible
through the diligent work of my assistant at Saint Louis University,
Darlene Lawson, the organization and impetus provided by Adriana
Nigro at the Central Ofce of the International Academy of Law and
Mental Health in Montreal, Canada, the excellent contributions of all
authors and the silent heroes, the guest reviewers, who assisted in
selecting and ensuring the quality of these contributions:
References
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Alan R. Felthous
Forensic Psychiatry Division,
Department of Neurology & Psychiatry,
Saint Louis University, School of Medicine,
1438 South Grand Blvd., Saint Louis,
MO 63104, United States
Tel.: + 1 314 977 4825; fax: +1 314 977 4876.
E-mail address: felthous@slu.edu.

Kenneth L. Appelbaum Annette Christy

Michael R. Arambula Anasseril E. Daniel
Rahn K. Bailey Dean DeCrisce
John Baird Pamela M. Diamond
Joseph D. Bloom Harold Dreling
Alec Buchanan Adrian Grounds
John Chibnal Robert Goldstein
Tracy D. Gunter Jeffrey L. Metzner
Elmar Habermeyer James Ogloff
Bruce E. Harry William J. Reid
Charles E. Holzer, III William D. Richie
James F. Hooper Donna Schwartz-Watts
David James Angeline Stanislaus
Jeffrey S. Janofsky Robert L. Trestman
Norbert Konrad Douglas Tucker
L. Thomas Kucharski Simone Viljoen
Roy Lacousiere Sara Wakai
Gregory Leong Robert Weinstock
Daniel A. Martell Cheryl D. Wills
Charles W. Mathias William J. Winslade

My heartfelt thanks to all!

Alan R. Felthous