From Police Custody to Prison: A Duty Solicitor’s Checklist for Securing Psychiatric Care for Remand Prisoners

The transition from police custody to prison represents a critical juncture where undetected or inadequately managed mental health conditions may escalate. Research published in Frontiers on ‘Risky Remands’ highlights the heightened vulnerability of remand prisoners with psychiatric disorders to self-harm, suicide, and mental state deterioration. Duty solicitors must ensure psychiatric care is identified and secured promptly to prevent further decline. This checklist assists legal practitioners in navigating the medico-legal complexities of psychiatric care for remand prisoners, addressing mental health considerations from the earliest stages of criminal proceedings.

1. Recognising Psychiatric Red Flags in Police Custody

Certain behaviours and histories should raise immediate concerns about a client’s mental health. These include:

• Overt signs of psychosis, such as hallucinations (auditory or visual), delusions, or disorganised thinking.
• Severe mood disturbances, including manic episodes or profound depression with suicidal ideation.
• A history of psychiatric hospitalisation, particularly under the Mental Health Act 1983 (MHA 1983).
• Self-harm or suicide attempts, either in custody or in the community.
• Cognitive impairment, including confusion, memory deficits, or difficulty understanding proceedings.
• Substance misuse, particularly where it masks or exacerbates an underlying psychiatric disorder.
• Trauma-related symptoms, such as flashbacks, hypervigilance, or dissociative episodes, relevant to both offending behaviour and fitness to plead.

It is important to distinguish between drug and alcohol intoxication and primary psychiatric disorders. While intoxication may temporarily impair cognitive function, it does not typically constitute a mental disorder for the purposes of criminal responsibility or MHA 1983 disposals. However, where substance misuse co-occurs with a psychiatric condition (dual-diagnosis), expert psychiatric opinion may address their interplay and combined impact on the client’s mental state.

Fitness to Plead: The Pritchard Criteria

The instructing solicitor should consider whether their client meets the Pritchard criteria for fitness to plead, as clarified in R v Marcantonio and subsequent case law. These criteria assess whether the defendant can:

• Understand the charges they face.
• Decide whether to plead guilty or not guilty.
• Challenge jurors.
• Instruct their legal representatives.
• Follow the course of proceedings.
• Give evidence in their own defence.

Where there is doubt about fitness to plead, a forensic psychiatrist can conduct a structured assessment. If unfitness is established, the court may proceed to a trial of the facts under the Criminal Procedure (Insanity) Act 1964, focusing on whether the defendant ‘did the act or made the omission charged’.

2. Securing Psychiatric Assessment in Police Custody

Once psychiatric concerns are identified, the duty solicitor must act swiftly to secure an assessment. Critical steps include:

• Request a forensic medical examiner (FME) or custody nurse assessment: While FMEs are not psychiatrists, they can provide an initial evaluation and recommend further psychiatric input if necessary. Their observations may form part of the evidential record.
• Liaise with the custody sergeant: Under the Police and Criminal Evidence Act 1984 (PACE), the custody sergeant has a duty of care to detainees. If a client’s mental health appears to be deteriorating, the solicitor should request consideration of a transfer to a healthcare setting under Section 136 MHA 1983 or an urgent psychiatric assessment.
• Instruct a forensic psychiatrist: Where the client’s presentation suggests a complex psychiatric disorder (e.g., schizophrenia, bipolar affective disorder, or severe personality disorder), early instruction of a forensic psychiatrist is advisable. The psychiatrist can conduct a comprehensive assessment, including a review of medical records, collateral history, and structured clinical interviews. Their report may address:
• Diagnosis and its relevance to the alleged offence.
• Fitness to plead and stand trial.
• Risk assessment, including the likelihood of self-harm or harm to others.
• Treatment recommendations, both in custody and in the community.
• Disposal options under the MHA 1983 or the Mental Health Treatment Requirement (MHTR) under a community order.

Expert witnesses use validated tools, such as the Structured Inventory of Malingered Symptomatology (SIMS), to assess symptom validity. However, the instructing solicitor should avoid assumptions about a client’s presentation; even where malingering is suspected, a thorough psychiatric assessment remains necessary to rule out underlying pathology.

3. Transition to Prison: Advocating for Continuity of Care

The transfer from police custody to prison is a high-risk period for remand prisoners with psychiatric needs. Delays in assessment and treatment are common. The duty solicitor should take the following steps:

• Request a transfer to a prison with in-reach psychiatric services: Prisons with in-reach psychiatric teams (e.g., Category B local prisons) are better equipped to manage acute psychiatric episodes. The solicitor should liaise with the prison’s healthcare department to ensure prompt assessment upon arrival.
• Ensure the prison is aware of the client’s psychiatric history: Provide copies of any psychiatric reports, medical records, or FME assessments obtained in custody. Inform the prison’s healthcare team of any immediate risks, such as suicidal ideation or self-harm.
• Apply for a transfer to a psychiatric hospital if necessary: Where a client’s mental state deteriorates in prison, the solicitor may apply for a transfer under Section 48/49 MHA 1983 (for unsentenced prisoners) or Section 47/49 (for sentenced prisoners). This requires a recommendation from two registered medical practitioners, one of whom must be approved under Section 12 MHA 1983.
• Monitor compliance with the Equality Act 2010: Prisons must make reasonable adjustments for prisoners with disabilities, including mental health conditions. The solicitor should ensure their client is not discriminated against on the grounds of their mental disorder.

Disposal Options Under the Mental Health Act 1983

Where a client is diagnosed with a mental disorder warranting detention in hospital, the following disposal options may be available:

• Section 37 MHA 1983: A hospital order directing the defendant to be detained in a psychiatric hospital for treatment, typically used where the court is satisfied the defendant’s mental disorder is treatable and a hospital order is the most appropriate disposal.
• Section 37/41 MHA 1983: A hospital order with restrictions, used where the defendant poses a significant risk to the public. Restrictions, imposed by the Secretary of State for Justice, limit the patient’s discharge, transfer, or leave of absence from hospital.
• Section 45A MHA 1983: A hybrid order combining a prison sentence with a direction for hospital treatment, used where a hospital order alone is insufficient to protect the public but the defendant’s mental disorder requires treatment in hospital.

Expert psychiatric opinion may address the most appropriate disposal option, considering the offence, the defendant’s psychiatric history, and the risk they pose to themselves or others.

4. Common Pitfalls and How to Avoid Them

Several common pitfalls may undermine the effectiveness of psychiatric evidence in criminal proceedings. The instructing solicitor should be aware of these:

• Delay in instructing an expert: Psychiatric conditions can deteriorate rapidly. Early instruction of a forensic psychiatrist ensures the client’s mental state is documented promptly, which is critical for both defence and mitigation.
• Incomplete or inaccurate instructions: The quality of a psychiatric report depends on the information provided to the expert. The solicitor should ensure the psychiatrist has access to all relevant material, including medical records, witness statements, and details of the alleged offence.
• Overlooking personality disorder: Personality disorders, particularly antisocial and emotionally unstable (borderline) types, are common in forensic populations. While they do not typically give rise to defences such as insanity or diminished responsibility, they may be relevant to sentencing.
• Ignoring trauma and PTSD: Trauma-related disorders, such as post-traumatic stress disorder (PTSD), may be relevant to both the defendant’s mental state at the time of the offence and their fitness to plead. A forensic psychiatrist can assess the impact of trauma on the defendant’s mental state and behaviour.
• Failing to challenge inadequate prison psychiatric care: Delays in assessment or treatment are common. The solicitor should monitor their client’s access to psychiatric care and challenge failures to provide appropriate treatment through formal complaints or judicial review.

5. The Role of the Forensic Psychiatrist Expert Witness

A forensic psychiatrist’s report can be pivotal in cases involving psychiatric care for remand prisoners. The report should be comprehensive and address:

• Diagnosis: A detailed description of the defendant’s psychiatric condition, based on recognised diagnostic criteria, such as the ICD-11 or DSM-5.
• Relevance to the offence: An assessment of how the defendant’s mental disorder may have influenced their behaviour at the time of the offence, including whether it impaired their ability to form intent or understand their actions.
• Fitness to plead: An evaluation of the defendant’s ability to participate in the trial process, based on the Pritchard criteria.
• Risk assessment: An evaluation of the defendant’s risk of self-harm, suicide, or harm to others, using structured professional judgement tools, such as the HCR-20.
• Treatment recommendations: A detailed plan for the defendant’s psychiatric care, including medication, psychological therapies, and any necessary adjustments to their custodial environment.
• Disposal options: An opinion on the most appropriate disposal under the MHA 1983 or other relevant legislation.

The instructing solicitor should ensure the psychiatrist’s report is disclosed to the prosecution at the earliest opportunity to resolve any disputes about the defendant’s mental state before trial.

Practical Takeaways for Criminal Defence Practitioners

Securing psychiatric care for remand prisoners requires proactive advocacy. Key steps include:

• Identify psychiatric red flags in police custody and request an urgent assessment where necessary.
• Instruct a forensic psychiatrist early to document the client’s mental state and provide expert opinion on fitness to plead, criminal responsibility, and disposal options.
• Ensure continuity of care during the transition to prison by liaising with healthcare teams and monitoring access to psychiatric services.
• Challenge inadequate prison psychiatric care through formal complaints or legal action where necessary.
• Use expert psychiatric evidence to support applications for hospital transfers, MHA 1983 disposals, or mitigation in sentencing.

Specialist forensic psychiatric assessment can be pivotal where a client’s mental health is deteriorating or where there is a risk of self-harm or suicide. By acting swiftly and securing expert input, duty solicitors can ensure their clients receive the psychiatric care they need while protecting their legal rights.