Criminal Responsibility in Geropsychiatry: Competence, Culpability, and Care

Abstract

Elderly persons can get involved in the criminal justice system as victims or as perpetrators. The interaction of elderly persons with mental illness at various cross-sections of the judicial process needs thoughtful consideration. Through this review, the authors approach this less studied aspect of forensic psychiatry. Concerning the evaluation of a prisoner, three scenarios need focused consideration: evaluation for fitness to stand trial before a competent court, evaluations for an insanity defense, and fitness for sentencing. At the same time, incarcerated elderly who developed dementia or a severe mental illness at any point of time during the trial or in prison need specific approaches. In this article, the authors discuss the acts and case laws relevant to navigating these legal scenarios. We discuss existing mental health care provisions for protecting the health interests of elderly care in prison.

Dementia care pathways in prisons – a comprehensive scoping review

“…Challenges included a lack of: procedure regarding further assessment for people of concern Tilsed, 2019;Treacy et al, 2019;Turner, 2018); limited staff knowledge (Forsyth, Heathcote and Senior et al 2020); staff confidence in diagnosing dementia Treacy et al, 2019), including prison healthcare staff delaying diagnosis Treacy et al, 2019); lack of training and, particularly in local prisons (Forsyth, Heathcote and Senior et al 2020); regular health-checks for long-stay prisoners Brown, 2016); time and resources (Turner, 2018;Correctional Investigator Canada, 2019;Inspector of Custodial Services, 2015;Goulding, 2013); the high turnover of prisoners (Forsyth, Heathcote and Senior et al 2020) and; prison-specific screening or assessment tool(s) Patterson et al, 2016;Turner, 2018;Correctional Investigator Canada, 2019;Feczko, 2014; National Institute for Health and Care Excellence, 2017). Problematically, prisoners tend to underreport any cognitive or physical symptoms either for fear of repercussions (Pandey et al, 2021) or because of poor insight into their cognitive impairment and deteriorating health (du Toit et al, 2019) and it was reported that some people did not attend assessments for fear of bullying from other prisoners (Murray, 2004). Further to this, ensuring that consent is given freely by an incarcerated individual (who may also have dementia) is challenging.…”

“…Regarding family, many hospices were described as allowing more visits Goulding, 2013 Fazel et al, 2002); staff resistance (Turner, 2018); lack of understanding of the prison context Williams, 2014); high levels of staff burnout ; people not accessing healthcare for fear of bullying (Cipriani et al 2017); not being able to physically access healthcare centres (Treacy et al, 2019; Her Majesty's Inspectorate of Prisons, 2017b; Welsh Government and Ministry of Justice, 2011, ; limited access to healthcare services (Moore & Burtonwood, 2019); delays in arranging assessments (Forsyth, Heathcote and Senior et al 2020); diagnosis and/or the provision of care (Forsyth, Heathcote and Senior et al 2020) and; healthcare staff lacking access to prisoners at night (Welsh Government and Ministry of Justice, 2011). There are barriers for nurses to develop therapeutic relationships with those they care for due to correctional requirements and the physical environment, affecting nurse-patient relationship building (Pandey et al, 2021). There may also be a mistrust of prison healthcare staff (Moore & Burtonwood, 2019).…”

“…There may also be a mistrust of prison healthcare staff (Moore & Burtonwood, 2019). The mental health services are often focused on other inmates whose behaviours are more challenging (Pandey et al, 2021). There were multiple issues around referrals, with some people not 'able' to self-refer (Prisons and Probation Ombudsman, 2016), prison staff can be a barrier, and so referrals should not have to go through them (Treacy et al, 2019;Her Majesty's Prison & Probation Service, 2018), although it was also suggested that healthcare staff should accept referrals from prison staff as they are the prison frontline (Brown, 2016;Moll, 2013;Treacy et al, 2011).…”

“…A number of benefits to: (a) the peer supporters, (b) the prisoners they supported and, (c) the prison, were described, although formal evaluations were lacking (Brown, 2016;Christodoulou, 2012;Department of Health, 2007;du Toit et al, 2019;Goulding, 2013;Treacy et al, 2019;Welsh Government and Ministry of Justice, 2011). This ; hospice work Brown, 2016;Moll, 2013;Goulding, 2013); facilitators (Pandey et al, 2021) and; advocacy (Goulding, 2013;Treacy et al, 2019). In one paper peer supporters were considered a part of the prison MDT (du Toit & McGrath, 2018) included: payment, development of skills which could be used on release, positive impact on progression through the system, and on self-confidence and compassion, and the creation of a more humane environment.…”

“…Early release A number of papers advocated for compassionate release policies and their actual use, or alternative custodial placements such as halfway houses or secure nursing homes, that would effectively result in the early release of PLiPWD (Brown, 2016;Cipriani et al, 2017;Correctional Investigator Canada, 2019;Dementia Action Alliance, 2017;Department of Health, 2007;du Toit & Ng, 2022;du Toit et al, 2019;Fazel et al, 2002;Goulding, 2013;Her Majesty's Prison & Probation Service, 2018;Inspector of Custodial Services, 2015;Maschi et al, 2012;Pandey et al, 2021;Turner, 2018;Williams et al, 2012). Although, it has also been noted that early release may not be a popular idea for some sections of the community (du Toit et al, 2019;Garavito, 2020), it was also suggested that raising community awareness of dementia may ameliorate this (du Toit & Ng, 2022).…”