The criminal justice system is looking at mental health again - will it use the right lens?

The Ministry of Justice recently shared details of five pilot schemes under which offenders with mental health needs are diverted from prison, instead receiving support to address their underlying issues in the community. Psychologist Peter Kinderman tells Hardeep Matharu why it is important to see criminality and mental illness as non-binary concepts.

Shortly after becoming Prime Minister, Theresa May vowed to tackle “the burning injustice of mental illness”.

“There is no escaping the fact,” she said “that people with mental health problems are still not treated the same as if they have a physical ailment, or the fact that all of us – government, employers, schools, charities – need to do more to support all of our mental wellbeing.”

It is difficult to argue that mental health is not now receiving the attention it deserves, but does it necessarily follow that the way in which we think and talk about our experiences of it is a helpful one?

Peter Kinderman doesn’t think so. Professor of Clinical Psychology at the University of Liverpool, his work explores how those working in medicine, the criminal justice system and beyond use labels, diagnoses and norms to frame mental health difficulties as illnesses – an approach he believes is not ultimately useful for tackling the issue.

Advocating care rather than coercion, therapy over medication and a return to a “common sense appreciation that distress is usually an understandable reaction to life’s challenges”, Professor Kinderman spoke to me about how society views mental health with regards to another challenging issue – crime – and why a shift might be necessary in this area to achieve the positive outcomes that we want.

Mechanisms influencing behaviour

“How the public view mental health and criminal justice issues, how they are encouraged to view these things by the medical profession and the legal profession, is quite binary,” Prof Kinderman told me. “So, some people are psychopaths, some people are criminals and the rest of us make rational decisions. If you have a mental health problem then that’s the explanation for your behaviour.

“I think people get slightly confused as to when to think of somebody as ill and therefore not responsible for their own behaviour, when to think of them as naturally bad, when people are weighing up quite cynically whether to commit an act, and when we occasionally do irrational things for irrational reasons.

“Because I don’t buy into diagnostic models of mental health, I think we should understand why we get distressed and have odd experiences that classically fall into the field of mental health, but also understand why we do what we do – why we steal things, why we assault people, why we rape people, understand even why we murder people. It’s about thinking of the psychological mechanisms that underpin human behaviour, rather than dividing people up into normal, criminal and ill.”

- See also: Disorders Explained

- See also: Do you identify as having a disorder, or as having survived something?

Prof Kinderman’s philosophy contains echoes of Michel Foucault’s. For him, labels and norms – standards against which people can be measured – were a means of social control. The ‘normalisation’ of society in this way enabled the creation of that which was not ‘normal’, an ‘other’, such as the madman, the criminal or the deviant.

Earlier this month, the Ministry of Justice announced the establishment of five pilot schemes under which offenders with mental health issues would be diverted from prison and receive support to address their underlying issues in the community. But, the academic is not convinced that a distinction should be made between ‘criminals’ and the ‘mentally ill’.

In the five pilot areas, psychologists are present in court to assess offenders whose crimes may make them 'suitable' for a Community Order.

“One of the themes used is that ‘this person should not be in prison, she needs to be in a mental health establishment or in hospital’,” Prof Kinderman told me. “That ‘the things that underpin her behaviour are illness-related not criminal-related’ and I don’t think that’s a binary distinction. We need to think a little more as the Scandinavians do which is ‘given that this person has done these things which are crimes, how do we understand them and what do we do about them?’.

“So, it’s not so much ‘is she ill or is she a criminal?’ but ‘what’s the best way to understand and respond to her behaviour and meet her needs?’

“If you kill another person, you can be found not guilty by virtue of diminished responsibility. That defence doesn’t apply to theft for instance. If you’re found guilty of stealing money because you’ve got a drug habit, the sentencing magistrate or judge then looks at the circumstances of the crime and the person’s personal circumstances to work out how to respond to them. That’s a much more sensible way of thinking about this relationship between mental health, psychology and crime.”

Another example he gives is of those who have experienced trauma with lasting effects.

“There’s a difference between saying ‘please be sympathetic to my client because his behaviour was driven by his illness, his PTSD’ and ‘this guy went to war, he witnessed what he witnessed, he returned with a tendency to almost constant hypervigilance and very frequent extremely unpleasant emotional responses to objectively trivial everyday stimuli meaning that he was hyper-aroused and reactive most of the time and he was very angry about that situation and he turned to alcohol to deal with it which is unwise of him but you can see why it’s understandable’,” Prof Kinderman added.

He believes that, once the personal and social circumstances impacting on the person have been explored, options as to how best to respond then need to be considered. These may include therapy, another form of rehabilitation or, if necessary to protect the public, prison.

In the realm of mental health, he says empathy and understanding must be extended to people who have got significant problems, but these should not be understood as illnesses requiring medical treatment.

Understanding personal responsibility

Acknowledging that many will disagree with him, Professor Kinderman believes that he isn’t being ‘soft’ and excusing people’s crimes. In his view, it is a “humane and pragmatic” approach requiring people to take more responsibility, not less, and could result in real progress on an individual and societal level as we begin to confront the underlying causes of our unhappiness.

“I’m suggesting that we understand the issue of personal responsibility both in mental health and the criminal justice system, rather than run away from it”, he said.

“We all process information about the world, we make choices, we weigh up the pros and cons or we don’t, we think about the consequences of our actions or we don’t.

“It’s not necessarily a kindly, do-gooderish approach. It’s saying don’t put people into boxes and don’t assume that the normal psychological rules that apply to everyday behaviour stop applying when someone has this socially constructed label of mental illness applied to them.”

He does not believe that the label of “disorder” helps people examine the root causes of their problems.

“Saying ‘I’ve got depression’ is different from ‘I’m very depressed’,” he told me. “‘I’m very depressed’ locates the issue in that which human beings are. ‘I’ve got depression’ puts the responsibility onto this notional entity called depressive disorder.

“There is actually more agency in saying ‘for many years I’ve had terribly intrusive thoughts and the only way I can cope with them is by washing my hands frequently’ than saying ‘I have OCD’. It’s effectively like saying ‘it’s not me it’s the OCD’. I worry about that slightly.”

So, what needs to change?

Prof Kinderman says he is arguing for “evolution not a revolution”.

He believes the criminal justice system needs to become more psychologically-informed, with “more prevention and less punishment, more restorative and less punitive justice”.

“There’s a danger of thinking that crimes deserve punishments rather than thinking of the criminal justice system as ‘how do we understand and then respond to people’s behaviour?’”, he said.

He also believes the psychological underpinning used to justify punishment as a deterrent is “too straight-forward” because people often have irrational motivations.

In mental health, he wants to see a shift away from diagnostic labels.

“The medical approach to mental health and the criminal justice approach at the moment tend to think that if you’re judged as not having a mental illness then you use normal psychology to understand why the offence occurred,” he said. “If you are judged to have a mental illness then a whole different set of psychological mechanisms are assumed to swing into play.

“Instead of dividing the world up into things that are the province of doctors, things that are the province of lawyers and things that are the province of psychologists, I’m suggesting that we imbue a psychological understanding in both the mental health service, which is heavily medical, and in the criminal justice system, which is along the lines of simple behavioural psychology.”

In the past two months, the following headlines are just a very small sample of those which have appeared in mainstream media outlets focusing specifically on antidepressant use:

‘Antidepressant prescriptions for children on the rise’
‘Four million people in England are long-term users of antidepressants’
‘Rise in antidepressant use in part due to open discussion of mental health’
‘Doctors urged to offer more gardening courses and fewer pills’

That mental health is now firmly on the agenda is to be welcomed, Prof Kinderman says, but he believes this new, seemingly open, paradigm presents concerns.

“There is a danger that if we buy too much into this ‘we all need to talk about our mental health, if you’re depressed, talk to somebody about it, get help, don’t suffer in silence’, that instead of understanding our mental health and our emotions as part of life, we toddle off to the doctor and get a pill,” he told me. "So, if your daughter is unhappy we should definitely help her. I’m not sure that’s the same as ‘we should definitely diagnose her with an anxiety disorder and then treat it’.

[Editor's note: It is important to consult your GP if you are considering making changes to your medication.]

"The danger is we end up medicating our kids for disruption at school which should be handled in terms of parenting style and educational response. That we take kids who are struggling at university and diagnose them with depression when we need to think about how we’re putting pressure on our young people.

"We need to understand why we’re unhappy.”

Hardeep Matharu is a journalist, writer and researcher who specialises in prisons, criminal justice and social affairs. @Hardeep_Matharu