Failure to Provide Adequate Mental Healthcare to Mentally Ill Detainees: Community-Based Care as an Alternative?

The World Health Organization (WHO) underlines that mental health issues are the most widespread among detainees in the criminal justice system. In 2020, 32.8% of the European prison population suffered from mental illnesses, and suicides remained the leading cause of death in prison (WHO Europe). According to the Special Rapporteur on the Right to Health, suicides in detention are three times higher than in the general population and this is also due to the fact that detainees’ mental health is more vulnerable than that of people outside prison settings. Nonetheless, providing continuous mental health treatment to prisoners, during and after detention, is challenging.

The WHO found mental healthcare access in European prisons to be insufficient and unequal. Adequate mental healthcare in penitentiary institutions is not easy to achieve in practice. This challenge faced by States is represented by the difficulties in accessing healthcare facilities in prison and providing adequate goods and services. Recent reports show a disparity in mental healthcare provision compared to other kinds of treatment: access to mental healthcare is insufficient, but when care is provided, it may be inadequate. This raises significant concerns regarding the detainees’ right to mental healthcare and potential human rights violations.

The lack of healthcare for detainees with mental illnesses might result in human rights violations, such as the right to health or the prohibition of degrading treatment. In order to face these violations, Italy decided to close its penitentiary psychiatric hospitals in 2014, carrying on the deinstitutionalization process of mental healthcare also within the criminal justice system. This reform aimed to lower the penitentiary security measures and to better focus on the need to grant adequate mental health services to people affected by mental illnesses, who committed a crime and are sentenced to detention. As an alternative to penitentiary psychiatric hospitals, REMS, which stands for “Residenze per l’Esecuzione delle Misure di Sicurezza” (Residences for the Execution of Security Measures) were offered as an alternative program based in the community, outside of prisons. The article addresses REMS as an example of deinstitutionalization and community-based mental healthcare for mentally ill detainees. 

The research aims at assessessing whether community-based mental healthcare for mentally ill detainees can represent an alternative to in-detention care, better provide adequate mental healthcare and avoid torture or cruel, inhuman and degrading treatment. To find out the answer, the article firstly explores the international human rights framework on detainees’ right to mental health, provided by the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention of the Rights of People with Disabilities (CRPD).

Subsequently, a case law analysis is provided, where international and European decisions are brought forward to identify torture and cruel, inhuman or degrading treatment patterns due to the failure to provide adequate mental healthcare to mentally ill detainees.

Furthermore, the author analyses the right to access community-based services under Article 19 CRPD as a way to provide alternative care in the community and ensure adequate mental health treatment. To this end, the deinstitutionalization of prisons for the mentally ill in Italy and the closure of penitentiary psychiatric hospitals is included, considering the instance of REMS.

The WHO defines a mental illness as a“clinically significant disturbance in an individual’s cognition, emotional regulation, or behaviour” that usually leads to distress or difficulties in functioning. These include anxiety disorders, depression, bipolar disorders, schizophrenia, etc. It's important to underline that the article limited its scope to mentally ill individuals who have been legitimately tried because they were able to plead and subsequently found guilty.

The international legal framework

Within the international legal framework, Article 12 ICESCR addresses the right to mental health. “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” Article 12(2) imposes on States several obligations, inter alia the requirements to create adequate circumstances to provide medical treatment to ill individuals.The right to health includes the promotion of timely and appropriatehealthcare. This norm advances the right to obtain health facilities, goods and services that allow care in case of illnesses, including mental conditions. The right to health includes obtaining services and education, prevention and appropriate treatment of diseases and disabilities, ideally delivered in the community. (General Comment 14)

Specifically, the CRPD addresses the right to health of people with mental illnesses under Article 25 CRPD. As legal scholars underline, it imposes on States the obligation “to provide equal access to health services.” Article 25(b) CRPD underlines that services aimed at early identification and intervention must be provided ad hoc and appropriately for those disabilities. However, it has been argued that the expertise of the penitentiary staff on the specific mental illnesses that need to be treated in a prison setting is not always updated, leading to unequal provision of adequate health treatment.

Under Article 25(c), the Convention underlines the need to offer health services close to the individual’s community. In this regard, the Special Rapporteur underlined how mental health services in prison confinement cannot offer the same level of recovery and empowerment as services provided in the community. For this reason, the concept of REMS is explored further on.

The legal analysis of the norms concluded that the framework provided by Articles 12 ICESCR and 25 CRPD puts obligations on States, including the duty to promote access to healthcare on a non-discriminatory basis. Equal access to services for people with disabilities must guarantee the same level of care as that provided to the general community. Moreover, States need to protect vulnerable and marginalised groups, such as detainees with mental illnesses or psychosocial disabilities, and provide them with appropriate services and treatment, specifically addressed to them.

States must provide timely and adequate mental healthcare and respect their right to health by providing mentally ill detainees with the same level of mental healthcare available in the community, without discrimination and as close as possible to their own community.

Violations of the prohibition of torture due to the lack of adequate mental healthcare

The right to access adequate mental healthcare inside a prison institution is not impossible to guarantee, but it can be severely hindered due to the nature of detention. When adequate mental healthcare in detention lacks, violations of ill-treatment, i.e., torture and cruel, inhuman and degrading treatment can easily occur.

The case law analysis carried out in the thesis found out that the Convention against Torture together with article 3 European Court of Human Rights and article 7 International Covenant on Civil and Political Rights on the prohibition of torture and other ill-treatment has been violated in several cases dealing with mentally ill detainees in need of mental health treatment during detention.

The European Court of Human Rights in judgements such as Murray v The Netherlands, Rooman v Belgium, Dybeku v Albania and Sy v Italy found a violation of the prohibition of ill-treatment under Article 3 ECHR due to lack of access to mental healthcare for the mental conditions. At international level, cases of inhuman and degrading treatment were established due to lack of access to mental healthcare in Williams v Jamaica by the UN Human Rights Committee and in the “Joint Report on the Situation of Detainees at Guantanamo Bay” by the UN Commission on Human Rights.

States must meet a series of requirements when providing adequate healthcare in prison to a mentally ill detainee. Appropriate detention conditions that comply with the legal prohibition of ill-treatment need to guarantee access to adequate mental healthcare, specifically addressed to mentally ill detainees’ needs. In order to be adequate, States must provide psychological and psychiatric treatment that has a therapeutic purpose and alleviates their pain and condition, with the aim of reintegrating them into society after the sentence.

The Strasbourg Court leaves a margin of discretion regarding the type of healthcare to be provided. However, it clarifies that a State's lack of sufficient resources cannot justify the failure to provide adequate healthcare that subjects a mentally ill detainee to pain that goes beyond what is accepted. Finally, adequate care must be continuous and the special needs of vulnerable detainees must be considered.

Community-Based Mental Healthcare: Insights from the Italian Process of Closing Forensic Hospitals

An important principle set out under Article 19 CRPD is the right to be included in the community, which can be understood as the possibility of living a social life and having access to public services, including healthcare.

Moreover, the OHCHR defined deinstitutionalizationas a “process that provides for a shift in living arrangements for persons with disabilities, from institutional and other segregation settings to a system enabling social participation where services are provided in the community according to individual will and preference.” This process is based on the idea that mental institutions are detrimental to individual identity, causing depersonalization and hindering the mentally ill individual’s resocialization into the community.

Bringing these theories to life can ensure better assistance, avoid isolation from independent living in the community and enhance individuals’ choices: elements that cannot be granted in segregated settings. If community-based services consider the needs of all the disabled community, they can resonate with human rights, enforcing the right to community-based care, as under Article 19 CRPD.The Article, read in conjunction with the overall purpose of the Convention, implies a shift from confined institutions dedicated to people with physical and/or mental disabilities to a form of care that is based in the general free community.

Criminal detention, even if legitimised due to the commission of a crime, can also become a form of illegitimate institutionalisation of a mentally ill detainee when healthcare is offered in a segregated manner. In fact, a prison institution can have the same impact on mentally ill individuals as any other institution. A prison institution is confronted with the need to serve the criminal punishment aim and to provide adequate mental healthcare to a detainee with mental illness.

Mentally ill detainees are to be considered both as offenders, in need to serve a prison sentence, and as patients, who need medical care. These two necessities often clash with each other. Hence, a balance between society’s rights and detainees with mental illnesses’ rights must be considered. On the one hand, there is a need to guarantee community-based care focused on therapeutic care and rehabilitation. On the other hand, a mentally ill detainee set free into the community might pose a danger to society and commit other crimes. Therefore, it might be hard to ensure the community-based care of a mentally ill individual involved in the criminal justice system outside of prison facilities because of the need to consider society's safety.  However, mentally ill detainees must also be rehabilitated and rehabilitation is rendered impossible if mental health treatment is not adequately provided.

Italian Law 81/2014 and the case of REMS

Given the situation, it is important to mention the Italian reform under Law 81/2014, which represents a shift towards community-based care and a human-rights approach to mental disability in prison. 

The reform contributed to the closure of penitentiary psychiatric hospitals that used to “welcome” detainees with severe mental illness charged with detention. Penitentiary psychiatric hospitals, where detainees’ human rights were often violated, were finally closed in 2017. They were found unsuitable to provide adequate therapeutic mental health treatment.

REMS were offered as an alternative program based in the community. These specialised residences accept individuals with mental illness who are socially dangerous or whose psychosocial conditions need to be evaluated and when regular prisons do not appear suitable for them. These can host a maximum of 20 individuals.

This setting allows to have the necessary experienced medical staff all the time, which grants safety and continuity of treatment. A restricted availability of beds in the country can grant better individualised therapeutic programs. Every facility must train its medical personnel on disabilities, legal knowledge and human rights. Surveillance is granted by external enterprises, so that there is no presence of penitentiary police. This strengthens the idea that residences are not penal institutions, but places aimed at psychological therapy and treatment. Under Law 81/2014, REMS must provide individualised therapeutic and rehabilitative support that aims at improving the guilty offender’s health conditions. Residences are not meant to become a long-term care institution.

Professor Giovanni Torrente, lecturer in criminal and prison law at the University of Turin, in his chapter “Are Rems a case of deinstitutionalization?” concluded that REMS are a deinstitutionalization example since they represent a significant step towards a more external, autonomous and open mental health facility for mentally ill offenders found guilty and responsible of a crime. But it can be considered deinstitutionalization only to a certain extent because it is still an incomplete process. He suggests that the system should rely more on services and facilities in the community that need to be adjusted to the needs of individuals with mental disabilities.

However, the main issue in accomplishing this is the lack of adequate services in the territory. It can be concluded that, although it is not a fully deinstitutionalized process as defined in the 2022 Guidelines on deinstitutionalization, because it still presents some limitations to community inclusion, it is a step forward that balances social security and the rights of people with mental illnesses and psychosocial disabilities. This allows the implementation of a human-rights-based approach provided by the CRPD to mentally ill individuals also in the context of criminal justice.

Overall, it has been determined that the Italian REMS represent a remarkable step towards deinstitutionalizing detainees with mental illness and ensuring the provision of adequate mental healthcare close to the community. In this way, these individuals are not only considered offenders deserving punishment but also patients entitled to mental healthcare. However, recent judicial decisions addressing REMS in Italy underlined structural problems, including the lack of sufficient resources to guarantee community-based care to every mentally ill detainee in need. A further remark is that they can become long term solutions, bringing back the concept of institutionalisation.

Conclusions

Considering the legal framework, community-based alternatives can better guarantee compliance with the right to mental health. Article 25 CRPD requires that the care provided to mentally ill detainees shall be of the same level as the one accessed in the community. Community-based alternatives can avoid disability-based discrimination and ensure that adequate mental healthcare is actually provided to mentally ill prisoners. By providing adequate care, States can ensure mentally ill detainees are not subject to pain and suffering that violates the prohibition of torture, as prohibited under the international legal framework. Community-based healthcare, such as in the case of REMS, can be a feasible alternative to in-detention mental healthcare and guarantee adequate mental healthcare for mentally ill detainees. Mental healthcare offered in the community provides an alternative to in-detention mental healthcare that ensures compliance with human rights. In this way, mentally ill individuals involved in the criminal justice system can enjoy these rights. Community-based care complies with the requirements of Article 19 CRPD because it can ensure health rehabilitation, reintegration, and access to services in the community. It can be suggested that States should consider establishing community-based alternatives to offer mental healthcare and the rights of mentally ill individuals under the CRPD, while ensuring public safety, as in the case of REMS.

However, successful protection of these rights does not occur easily. States are obliged to create strategic planning to ensure the efficient functioning of community-based facilities. This is crucial when addressing the deinstitutionalization of mentally ill detainees since public safety must be considered and balanced. As seen in the Italian example, the lack of sufficient community-based services, resources and comprehensive regulation regarding REMS can also cause harm and human rights violations.