Management of self harm in a prison setting

Self-harm is a serious concern in prison environments, where prisoners may resort to self-destructive behaviours as a way to cope with the challenges and stresses of a prison environment. Managing self-harm within prisons requires a comprehensive and compassionate approach that focuses on prevention, early intervention and providing appropriate support to prisoners in need.

Key points

• The principles of the Mental Capacity Act (‘the MCA’) should be considered in relation to all treatment decisions, including those involving managing and treating self-harm in prisons.
• The involvement of Healthcare in the ACCT process is key to ensure that MCA principles are considered – but the MCA applies equally to non-healthcare professionals, including prison officers.
• The MCA provides a framework to assess and potentially manage both planned acts that may be harmful to a prisoner (eg refusal of food and drink) and unplanned/spontaneous acts of self-harm
• All professionals, whether healthcare or non-healthcare, should ensure that relevant decisions about capacity and best interests are fully documented, and subject to appropriate reviews.

Self-Harm and the Mental Capacity Act (2005 ) in a prison context

Within the prison estate, the ‘ACCT’ process is usually used to manage self-harm.  This is governed by the national “Safer Custody” policy, PSI 64.

PSI 64 ‘Safer Custody’ does consider the MCA, but largely in the context of prisoners deliberately refusing food.  Whilst the MCA is clearly applicable in that situation, the MCA also has a wider role to play in prison, including with the management of more spontaneous acts of self-harm

Basic principles of the Mental Capacity Act (2005)MCA

The Mental Capacity Act (2005) (‘the MCA’) is a legal framework that outlines how individuals who may lack mental capacity due to conditions such as cognitive impairment or mental illness should be treated and supported. While its primary focus is on healthcare decisions, the principles are applicable to various situations, including the management of self-harm in prisons. 

There are 5 principles of the Mental Capacity Act 2005:

1. A person must be assumed to have capacity unless it is established that he lacks capacity to make the relevant decision;
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success;
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision;
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. 
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

The test for whether a person has mental capacity to make the relevant decision is two-fold.  Firstly, the diagnostic test, and secondly the functional test.

1. Diagnostic test:  
   1. Does the person have an impairment of their mind or brain, whether as a result of an illness, or external factors such as alcohol or drug use? 
2. Functional test: Can the person involved:
   1. Understand the information relevant to the decision?
   2. Retain that information?
   3. Use / weigh that information as part of the decision-making process? And
   4. Communicate their decision?

Incorporating the Mental Capacity Act

Respect of autonomy

The Act emphasises respecting an individual’s autonomy and ability to make decisions, even if they appear to be harmful. This principle requires prison staff to carefully balance a prisoner’s rights to make choices against their duty of care. 

Best Interest Decision making

When a prisoner lacks the capacity to make decisions, prison staff and healthcare professionals must make decisions in their best interests. This involves considering the person’s wishes and feelings, beliefs, and values.

Least restrictive option

The Act mandates that any intervention of restriction should be the least restrictive option necessary to achieve the desired outcome. This principle is crucial in minimising unnecessary restraint or seclusion while managing self-harm risks.

Application of the Mental Capacity Act MCA in prisons

Assessment and documentation

Prison and healthcare staff should be trained to assess a prisoner’s mental capacity to make decisions related to self-harm. These assessments should be well documented and reviewed regularly.  This should be considered as part of the ACCT process for both healthcare and non-healthcare staff, as it is non-healthcare staff who ultimately manage and implement the ACCT process.

Informed consent

In cases where a prisoner has the capacity to make a decision about self-harm, they should be provided with adequate information to make an informed choice. Staff should ensure that the person understands the consequences of their decisions.  If a prisoner understands the relevant information, can weigh it, retain it and communicate their decision, they will have capacity to make the relevant decision.  This includes making an ‘unwise’ decision.

The question of being able to properly ‘weigh’ a decision is often crucial, and it is important that this is never treated superficially.  The person assessing capacity will need to consider carefully whether, despite an apparent ‘understanding’ of the risks involved, the underlying impairment of the mind of the individual means that they are not in fact properly weighing the relevant factors in their decision.

Best Interests Decision

When a prisoner lacks capacity, prison staff and mental health professionals should follow a structured process to determine the best course of action, taking into consideration the prisoner’s past and present wishes and feelings, and their values.  A Best Interests decision is a holistic decision, not a purely clinical one.

Regular review

Capacity is time and decision specific, so should be reviewed regularly.  A Best Interests decision can only be made for a person who lacks capacity.  If a person has capacity, they are entitled to make “unwise” decisions.  Decisions related to self-harm interventions should be reviewed periodically to ensure they remain in the individual’s best interests. 

Collaboration and safeguarding

Multi-disciplinary approach

The MCA encourages collaboration between prison staff, mental health professionals, social workers and legal experts when making complex decisions about self-harm.

Independent Mental Capacity Advocates (IMCAs)

IMCA’s can be involved to provide additional support and representation for prisoners who lack capacity and do not have family or friends to support them.

Conclusion

The Mental Capacity Act plays a crucial role in guiding the management of such cases, ensuring that the rights and well-being of incarcerated individuals with mental health conditions are upheld while maintaining the security of the facility. The integration of the Mental Capacity Act into the management of self-harm in the prison serves as a vital ethical and legal framework. 

By upholding principles of autonomy, best-interest decision making and the least restrictive option, prison staff can ensure a comprehensive and compassionate approach to managing self-harm incidents. This approach not only protects the rights of the prisoner but also promotes a culture of respect and dignity within the prison. 

Hill Dickinson is one of the leading lawyers providing legal advice and support to national and international healthcare organisations. We have a wealth of knowledge and experience in handling complex cases involving NHS and Public Health authorities and the health and justice system. 

Our legal expertise spans across multiple NHS and public health sectors from mental health and social care, mental capacity, clinical negligence to inquiries and investigations.