4.  Developing a health-informed approach to penal reform may have a mental health element and offering tailored interventions to ensure that individuals receive the most appropriate care, whether or not they are already known to mental health services. The system has reportedly led to fewer detentions by police under mental health legislation27 and has fostered improved collaboration between police and mental health services. It has also produced better understanding of service users’ needs and helped to de-stigmatise mental health problems.28 Sentencing and treatment orders Sentencing decisions should be individualised to take account of any mental health issues and the possible effects of a custodial sentence. This is not a common feature of sentencing systems, but some recent advances are notable. In Australia, specific sentencing principles29 set out how mental health problems should be taken into account in the sentencing process. These principles guide the court to consider whether imprisonment would weigh too heavily on the offender or damage his or her mental health. In England and Wales, any sentencing decision relating to a child or young person should take account of the person’s welfare. As part of this, the court is now required to ‘ensure that it is alert to any experiences of brain injury or traumatic life experience (including exposure to drug and alcohol abuse) and the developmental impact this may have had’.30 I was depressed and angry during all my prison sentences. I felt isolated and abandoned – I had no visits, I had no family. Female ex-prisoner, Brazil Some jurisdictions make provision for courts to pass sentences or make orders requiring offenders to undertake treatment in the community to help them with mental health problems or alcohol or substance use issues. These orders generally embody a multi-agency approach with information and expertise being shared as necessary among health and justice professionals. The aim is usually to identify and meet the needs of people convicted of an offence who have a mental illness or substance/alcohol use disorder and to limit their re-offending risk, if possible without recourse to custody. In England, the Mental Health Treatment Requirement attached to a Community Order is intended for the sentencing of offenders convicted of an offence falling below the threshold for a custodial sentence, where their mental health problem does not require secure in-patient treatment. It is essentially an agreement between the offender, the probation officer and the clinician (usually a psychiatrist). The offender must agree to receive regular mental health treatment as part of the requirement (National Offender Management Service, 2014). A Community Order imposing a Drug Treatment Requirement is also available to courts in England, when the offender is dependent on drugs or has a propensity to misuse drugs, providing certain conditions are met. The orders comprise structured treatment tailored to the individual’s needs, with regular drug testing results being made available to the court as part of a report by the probation service. Alcohol Treatment Requirements are available when the court is satisfied that the offender is alcohol-dependent. They involve structured communitybased treatment and support, which may include psychosocial therapies, interventions for assisted withdrawal, ‘detoxification’ and cognitive-based treatment. Both orders require the person’s consent (National Offender Management Service, 2014). In the Netherlands, offenders with psychiatric disorders can be detained for an extended period in secure treatment centres, after a period in prison. This controversial system is known as the Terbeschikkingstelling or ‘TBS’ (meaning ‘at the state’s discretion’). Its function is to provide compulsory psychiatric treatment with a view 27 A person appearing to a police constable to be suffering from a mental health disorder – defined as a mental illness, a learning disability or a personality disorder – can be detained in a ‘place of safety’ for up to 72 hours under Section 136 Mental Health Act 1983 (by default, this is often a police station due to lack of more suitable alternatives). 28 As reported by a participating psychologist: https://thepsychologist.bps.org.uk/volume-28/august-2015/street-triage-what-why-andhow 29 The Verdins principles, as set out by the Supreme Court of Victoria, in R v Verdins, R v Buckley and R v Vo [2007] VSCA 102 (23 May 2007). The same principles could give rise to harsher sentencing approaches and lengthy custodial terms where, for example, the offender’s mental health is considered unlikely to improve with treatment and represents a risk to public safety. 30 The Sentencing Council, ‘Sentencing children and young people: overarching principles and offence specific guidelines for sexual offences and robbery’ Definitive Guideline (June 2017), (paragraph 1.12) 23