The mis/recognition of prisoners’ mental disability and multiple-disadvantages: theorising the scope for redressing socio-penal disadvantages within and beyond the Equality Act (2010).
The article addresses a lacunae in criminological literature, where the adoption of critical theories of recognition have tended to use Honneth’s morally-conceived concept of recognition, rather than Nancy Fraser’s ethical versions (Barry, 2016; Fraser, 1995, 2003; Honneth 1995, 2003).This article argues that the current interaction of complex equality, the punishment-welfare model (Carlen, 2012) and neoliberal welfare conditionality and austerity in Britain can best be understood through Fraser’s critical justice theory.
The article extends the scope of Fraser’s critical justice theory (1995, 1998, 2005) in examining the provision of equality for prisoners with disability and multiple disadvantages (see also Lister, 2011), drawing on penal and welfare policy discourse and evidence. It employs Fraser’s (1995) concept of affirmative justice to suggest that there is wider scope for the use of the protective powers for groups granted status recognition within the Equality Act, including for prisoners and community members suffering from long term mental illness and learning impairment. These affirmative kinds of broadening of scope would be firmly grounded in the civil and political rights framework of the Act, and the welfare conditionality of the prevailing neoliberal order.
The article also employs Fraser’s concept of transformative justice to argue that the scope of the characteristics recognised as protected is too narrow because of the liberal civil rights framing, and too narrowly interpreted because it operates within a neoliberal context. This transformative reading extends the status recognition of the Act to groups whose parity of participation is subject to long term disablement because of substance-dependence, socio-economic, and multiple disadvantages including socio-economic disadvantage.
Critical theory; recognition; redistribution; justice; equality; disability; disadvantage; prisoners
This article employs critical theory and prison-based ethnography to examine the application of the Equality Act (2010) in terms of disability and disadvantage amongst prisoners and community members in England. Employing Nancy Fraser’s (1995, 2003) critical justice theory, it provides a critical reading of the protections provided under the Equality Act to prisoners.
In order to situate the relevance of critical justice theory this section will first briefly review the adoption of critical theory and Alex Honneth’s and Fraser’s differing concepts of recognition in criminology. In social theory recognition is most often used in terms of liberal multiculturalism (for example, Taylor, 1992), and within the literature of a politics of difference. Critical theories of recognition, including those of Hegel, Fraser, and Honneth have been adopted in the criminological literature on desistance, rehabilitation and penal legitimacy. As Monica Barry (2016) observes, recognition has been deployed at the micro level of interpersonal and relational dynamics to illustrate offenders’ need for integration with significant others (for example, Benjamin, 1988, Gadd, 2006, Weaver, 2015). Similarly, Honneth’s theory of affective recognition has been adopted within penal studies to address penal legitimacy as a matter, primarily, of decent and respectful staff-prisoner relations (see, for example, Liebling, 2013). As Barry (2016:94) notes in the context of desistance literature, little attention paid to ‘exchange’ or ‘reciprocity’ in interactions between offenders and the state’ (see, for example, Burnett, 2004; LeBel et al. 2008; Maruna, 2001). Prison studies have focused on reciprocity, however, the literature tends to bracket off the macro level socio-political responsibilities, to focus on the micro-level engagements of staff and prisoners (Liebling and Arnold, 2005; Liebling, 2013). In contrast to the individualising criminology, there has been some macro-level focus on Fraser’s concepts of recognition and redistribution to address the mutual responsibility of states and citizens to each other in the context of inequality and deprivation (Barry 2007; 2016; Young, 2007).
Honneth’s (2003) concept of recognition involves love, respect and esteem as aspects of reward and investment that enable positive group and individual status. Misrecognition, in Honneths terms, always involves psychic wounds, and it is the pain this psychological damage that motivates groups and individuals to overcome the injustices that prevent their full participation as members of the community (Coulthard, 2014: 37). In Fraser’s reading, Honneth’s concept of misrecognition involves the depreciation of group-specific cultural identity by the dominant culture ‘and the consequent damage to group members’ sense of self’ (2001:23, in Lister, 164). Fraser (2013:31) rejects Honneth’s model of recognition as overly-focussed on ‘individual or interpersonal psychology’. Fraser argues that recognition is instead required for ‘the status of group members as full partners in social interaction’ (2001:24). This concept of parity of participation and status recognition is, as Fraser argues, (see also Lister, 2007), more appropriate for considerations of class disadvantage where the ‘what’ requiring recognition is not a social or cultural identity, but the socio-economic barriers that poverty presents to parity of participation. As discussed below, although not discussed in Fraser’s work, this broader sense of recognition is relevant also for other groups defined by barriers to parity rather than social and cultural identity, including people suffering from mental disability, offenders and prisoners.
Fraser argues that (1995:70) justice struggles involve recognition and redistribution claims, based on cultural and social equality Cultural justice involves struggles over respect and recognition, while socio-economic justice involves issues of exploitation, marginalization and deprivation. Addressing parity of participation requires putting maldistribution (class subordination) on an equal footing with misrecognition (status subordination), as in practice most groups are ‘bivalent’ (subject to both cultural and socio-economic justice) (Fraser, 2003; 1995). Fraser’s concept of bivalence should be read alongside her understanding of intersectionality (see for example, Potter, 2014) For Fraser, the recognition-distribution aspects of particular groups commonly involve ‘cross cutting axes of difference and subordination’ including “race”, ethnicity, nationality, sexuality and class (1995:92, fn. 47; 1997:180).
The third key aspect of parity of participation is democratic deliberation, also referred to as ‘representation (Fraser, 1995, 43-45; 2010, 365-6). Expressed in terms of social exclusion, it refers to the extent to which the architecture of the political space denies or allows groups to have a voice in justice disputes (Fraser, 2010; 366). Fraser’s model of participatory representation opens up the recognition-redistributions claims, and the justice frameworks through which they are voiced or silenced to public contestation and deliberation (Fraser, 1995:43). This dialogic model allows for justice claims to be made, and for their effects to be subject to democratic deliberation; for example, a minority group may claim that a form of misrecognition excludes them from parity of participation. That claim should then be subject to democratic deliberation to ensure that ‘the practices whose recognition they seek do not themselves deny participatory parity – to some group members as well as non-members’ (Fraser, 1995:41). Recognition-redistributive justice is open to deliberative contestation. This openness involves a meta-level of deliberation about processes of deliberation, about the conditions in which first order claims are adjudicated (Fraser, 1995:44). This meta-level deliberation allows the recognition-redistribution model to engage with both questions of access to existing social goods, and also with questions over whether the existing goods ‘are the right goods’ (Fraser, 1995:44). In terms of parity of participation the just enactment of such deliberation should ensure that the political constitution of society accords ‘roughly equal political voice to all social actors’ (Fraser, 2010: 365). For Fraser, moreover, the first order and meta-level of deliberation can take affirmative or transformative forms. ‘Affirmative’ justice involves ‘correcting inequitable outcomes of social arrangements without disturbing the underlying framework that generates them’ Fraser (1995:82). Transformative justice requires ‘remedies aimed at correcting inequitable outcomes precisely by restructuring the underlying generative framework’ (Fraser, 1995:82).
The article employs Fraser’s (1995, 2003) concepts of parity of justice, and affirmative or transformative justice to examine current and possible wider use of the Equality Act’s protective powers in relation to its status recognition of prisoners’ mental disability and mental impairment, and its non-recognition of substance-dependence and multiple disadvantage as deserving of protected characteristic status. Fraser’s concepts of the bivalence and intersectionality of the justice recognition-distribution aspects of particular groups is particularly relevant for the groups under consideration: , respectively – (1) mental disability prisoners; (2) learning difficulty prisoners, (3) substance-dependent prisoners; (4) prisoners suffering from serious multiple-disadvantages (including material deprivation, histories of childhood trauma, poor education, school exclusion, institutionalisation, low levels of literacy and numeracy, lack of qualifications, and unemployment) (Bramley et al. 2015). As this article will argue, each of these groups is relevant in bivalent terms of both recognition and redistribution justice claims, and in terms of the intersection of specific characteristics subject to either or both types of justice aspects (for example, the status of being a prisoner, class status, and disability status).
Fraser’s meta-level affirmative/transformative dichotomy is also analytically useful because it enables this analysis to keep the prevailing social arrangements (including the political economy) and value-framework (including the moral economy) underlying the Equality Act in frame. The article suggests that the Act’s basis in liberal values is important because it affirms claims made in the register of civil and political-rights rather than socio-economic rights. Similarly, the neoliberal basis of the Act’s final framing, and its correspondence to the punitive penality and welfare conditionality of the Conservative-led coalition government responsible for revising the Act (after its legislation by the preceding Labour government) is important in terms of the enablement or limitation of recognitions, rights and entitlements.
The article draws upon academic and grey literature on equality, penal and welfare provision for disabled, substance dependent and multiple disadvantage groups. In particular, this article draws upon social disability approaches to the concepts of disability and impairment, which emphasise social over medically defined barriers to full participation and, consequently, broadens the status recognition of particular conditions (Flack, 2012; Oliver, 1996; Shakespeare, 2005). It also draws upon research conducted into diversity-equality in two Yorkshire prisons, which included a focus on the support provided to the Equality Act’s protected characteristic groups through appreciative interviews, focus groups and ethnographic observation with staff and prisoners (for an account of appreciative ethnography in prisons, see Liebling and Arnold, 2005). This appreciative fieldwork elicited staff and prisoner views on diversity-equality issues for protected characteristic prisoner groups.
The article develops by first providing a contextualising account of the liberal and neoliberal character of the parity of participation supported by the Equality Act, and outlines the key equality deficits of austerity in prisons. The article considers the forms of affirmative justice provided by the status recognition of mental disability and learning impairment in prisons and the community. It then considers the forms of affirmative justice limited by the lack of status recognition of substance-misuse, socio-economic and multiple disadvantages in prisons and the community.
The article concludes by considering three arguments. First, whether a transformative and intersectional reading of the Act might relate disability more broadly in terms of substance-dependence and disadvantaged socio-economic rights, and thus extend its protection more equitably to those who are subject to impairment in terms of participation as full members of the community. Second, whether recognition of substance-dependence and multiple disadvantage as protected characteristics within the Equality Act would require transformation of the liberal and neoliberal framework it operates within. Third, whether the focus on liberal recognition for diversity-equality might better shift to a critical focus on the socio-economic context in which equality is being framed (see Barry, 2016, for a similar argument in terms of youth marginality and desistance).
Civil and political rights are recognised in the duty of public bodies to promote equality of opportunity and prevent discrimination for protected characteristic groups defined within the Equalities Act (2010), and it’s Public Sector Equality Duty (2011). The Act requires that public bodies provide support for overcoming disadvantages of people from protected characteristic groups in order to enjoy equitable opportunities in society; and to foster good relations between the protected groups. The Act superseded previous versions of anti-discrimination legislation, and the status-recognition it grants is based on the categories of the rescinded legislation as well as EU regulations, including age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, sex, and sexual orientation, race, religion and beliefs.
The 2009 version of the Act also required public authorities to have ‘regards to the desirability of reducing socio-economic inequalities’ in regards to the groups recognised as protected characteristics, while noting that this requirement does not give rise to private law claims. This requirement was not legally binding in the way that the requirements to provide equality of opportunity and non-discrimination were. In any case, (Walby et al. 2012:232) ‘the attempt to include ‘socio-economic’ grounds in the UK Equality Act in 2010 failed’. The Conservative-led coalition government revised the Act in 2010 to remove the guidance on socio-economic equality (Gentleman, 2010).
The deletion of the original socio-economic guidance from the Equality Act the limited presence of socio-economic rights in British legislation: the UK has not incorporated the International Convention on Economic, Social and Cultural Rights, and ‘neither its general principles nor its substantive provisions can be enforced by domestic law’ (IESCR, 2016). Other international standards that might apply, such as the Employment Policy Convention (ILO no. 122) and the European Social Charter are weakly implemented (see, for example, IESCR, 2016; Ruxton and Karim, 2001; Kileen, 2008: Brugemann, 2007). Thus while the UK does provide some economic, social and cultural rights, such as entitlements to social security, social policy ‘prioritises individual responsibility over individual rights (for example, by imposing increasingly stringent eligibility tests for benefits) (Ruxton and Karim, 2001:2). The contractual character of any socio-economic entitlements attached to civil and political rights is evident in the welfare conditionality that has particular relevance for people from disability (including mental disability groups (see below).
The Act’s protected characteristics relates to potential or actual disadvantages that are incurred through no fault of the individual or group, and that are likely to impair their ability to enjoy full participation in society. Following Fraser’s analytical separation of recognition and redistributive justice, we argue that each protected characteristic has a (strong) recognition and a (weaker) redistributive aspect in terms of the Act’s aim of ensuring equitable inclusion. The protected characteristics of the Equalities Act enable forms of identity recognition. For example, ‘older prisoners’ as an identity category within the protected characteristic of age, while the protected characteristic ‘religion’ includes the diverse range of faith-based identities (Muslim, Christian, Buddhist etc.). The status recognition of these identities enable civil and political rights-based claims made against social arrangements (and the policies and practices of public services) that excludes from full and equal membership of the political community (Fraser, 1995).
Thus, despite the removal of the requirement for public bodies to have due regard for socio-economic disadvantages (Equality Act, 2010), overcoming barriers to parity of participation for recognised protected characteristics may involve redistributive justice. This is evident, for example, where the prison systems’ equality guidelines describe the need to equitably support black prisoners in prison-work opportunities, given the employment inequalities that disadvantage black British people in wider society (NOMS, 2009). Similarly, equalities duty in prisons may involve redistributive justice for disabled people, where taking account of peoples’ disabilities is said to sometimes require ‘treating them more favourably than others’ (NOMS, 2009:32). These are examples of the Equality Act’s provision that support for particular groups may involve positive action, but not positive discrimination. This provision accords with Fraser’s deliberative justice, ensure that recognition-redistribution for a particular groups does not deny parity to other members of that group or to other groups (Fraser, 1995:41).
The protected characteristic groups of the Equality Act are ‘bivalent’ groups in Fraser’s terms (1995:78). That is to say that the pursuit of equality for these groups requires work in the civil and political register of recognition, and also in the socio-economic register of redistribution. From the perspective of a positively conceived liberal paradigm, support for the equality claims of the protected characteristic groups is morally legitimate. However, the legitimacy of this support was also defined ? at the time of the Act’s framing ? by the New Labour government’s privileging of moral inclusion over redistributive equality, to welfare conditionality and lesser eligibility, and to an authoritarian approach to criminal justice (Levitas, 2005; Morris, 2013). Subsequently, the Coalition government intensified this approach, removing even the weak guidance for public bodies to take account of socio-economic disadvantage. As this article will elaborate below, the Act’s protected characteristics are limited recognitions in terms of the redistributive aspect of social justice (Fraser, 1995).
The welfare conditionality of the Equality Act is evident in terms of its framing of disability, where the English approach differs markedly from the international consensus. As Simon Flick (2012:398) observes, the Equality Act tends to focus on the medical definition of disability and on criteria for recognition as being disabled, and therefore on the eligibility of access to the Act’s protection. On the other hand, the United Nations Convention on the Rights of Persons with Disabilities emphasises how impairments ‘interact with social barriers in order to impede participation’ (Flick, 2012:398). As the following section of this article discusses, the interaction with the social barriers engendered by neoliberal austerity has particular relevance for prisoners who are recognised as disabled or are otherwise impaired.
The current neoliberal justice system, including the penal system, is framed in terms of punishment, societal security, and efficient (or “cost-effective”) rehabilitation (Bell, 2011; Allen et al. 2014…). Coalition and Conservative government funding cuts for English prisons have been enacted within a ‘benchmarking’ system, where the public sector should duplicate commercial models which are alleged to have “delivered better quality services with a lower cost base” (Grayling, 2012; NAO, 2013). Correspondingly, Ministry of Justice budgets fell by 29 per cent, while public prison staffing levels dropped by 28 per cent between 2010-15 (Garside, 2015). At the same time, prison regimes ‘emphasise austerity and cost reduction rather than decency and rehabilitation’ (Allen et al. 2014). Austere prison practices include understaffing, less constructive activities, and less reintegration support.
Our research into diversity-equality in two (male) Yorkshire prisons found that overcrowding, under-resourcing and the withdrawal of prison staff from extra-custodial work impacted on support for the equitable treatment of protected characteristic groups. Overcrowding restricts prison accommodation flexibility, with the option of co-location for particular groups (whether based on ethnicity, disability, age etc.) lost amongst the need to occupy as many beds as possible. One prison had previously been able to have a separate accommodation wing for older prisoners before pressure to take more prisoners led to the dispersion of the older prisoners throughout the prison.
Under-resourcing has led to the redeployment of equalities resources to custodial work. At one Yorkshire prison the effects of austerity includes reductions in staff resources for non-‘core’ duties (those not directly related to security and regimes), while the focus on industry left fewer staff remaining in residential areas during the core day. This understaffing was concurrent with a large unemployed prisoner population, and negatively affects the larger wings, which house a greater proportion of prisoners who were not working. This limits staff time to notice, assess and address the equality-related needs of protected characteristic prisoners, including mentally ill and learning difficulty prisoners. Excessive lockdowns of prisoners had impacted most severely on individuals who are unable to work because of physical disability and old age. Moreover, the over-stretching of staff has caused neglect of these groups in particular and thereby deficits in terms of dignity, autonomy, and wellbeing.
The withdrawal of staff roles to ‘core’ duties corresponds to poor staff training including training in cultural difference and disadvantage. Despite the dedicated concern (and good practice) of some staff members, this has impacted upon the ability of staff teams to manage and support diverse and marginalised prisoner groups. For example, prison staff observed that they suffered from inadequate understanding of mental health issues, and were unaware that mental health was recognised as a disability under the terms of the Equality Act (see below).
The working of the equalities duty in the Yorkshire prisons was evident at the policy level (for example, the prison instruction outlining a broader discrimination complaints process (NOMS, 2011) and in their implementation in prisons. Our research on diversity-equality in Yorkshire prisons found, for example, that faith practices are supported, including for the substantial Muslim minority, as well as for smaller faith groups to some degree. Structures for supporting diverse cultures and addressing discrimination were developing. These included the new policy outlining a discrimination complaint process that expanded the scope of complaints to include all protected characteristics, replacing the former focus on racial discrimination (NOMS, 2011). We observed that this policy was being implemented in prisons, along with the provision of cultural and identity-based representatives and groups (including, for example, Traveller groups, LGBT and collective equalities groups). Representative groups enabled prisoners to raise issues with prison managers. Our findings correspond to those of Gabhann (2015), who observed that the number of some prisoner equalities groups had grown strongly between 2010-2015 . To some extent, and with variations among prisons, the prison system is providing diversity-equality mechanisms that support the representative aspect of parity of participation.
Yorkshire prisoners’ grievances fell within the purview of the prison’s equality representation structures which enable claims in regards to protected characteristics. Muslim prisoners, for example, were able to have issues such as access to suitable places of prayer at work addressed, while Christian prisoners were able to discuss issues of access to the chapel; LGBT prisoners were able to raise issues of induction support for gay prisoners new to their prison; and physically disabled prisoners were able to raise issues of mobility throughout the prison and access to suitable work. However, the prisons lacked a specific mental health representative and mental health group structure. Moreover, those equality structures that did exist were not always effective, and were particularly hampered in terms of addressing the underlying structural issues of understaffing, insufficient resourcing, and overcrowding.
The protected characteristic of disability – refers to those who have “a physical or mental impairment which has a substantial and long term adverse effect on her or his ability to carry out normal day to day activities” (Equality Act 2010). Long term is defined as 12 months or more, and includes cases where the condition is held to be likely to last for that period or longer. Categories of disability include physical disability, mental illness, mental impairment, and long term health conditions, but not drug addiction (see discussion below) (MoJ, 2012a).
Mental illness has been a particular target for negative stereotyping (EHRC, 2016). Such negative esteem corresponds to inequalities of distribution. For example, despite the Conservative government’s commitment to equality of esteem’ for mental health, while mental ill-health accounts for 28% of the total burden of disease, it only receives 13% of the NHS budget (NHS Providers, 2016). Severe budget cuts have led to deteriorating access to mental health and social care services (Quality Watch, 2015:6-7). The Mental Health Taskforce (2016) reported excessive unmet need for mental health care, three-quarters of people with mental health problems receiving no support at all. The deficits have occurred during a period of growth in mental health illness and increasing proportion of disability benefits for mental illness, as opposed to benefits for physical disability (IFS, 2015).
Disability (including mental disability) groups have also been subject to increasingly stringent welfare conditionality, including work capability assessments. More than one million recipients of the out-of-work disability benefit had their eligibility reassessed using the Work Capability Assessment between 2010-13 (Barr et al. 2016). Reassessment was associated with more mental health problems and higher suicide rates (Barr et al. 2016). These adverse outcomes widened health inequalities as they were most intense in the most deprived areas (Barr et al. 2016). More stringent eligibility tests for out-of-work disability benefits (over the period 2010-13) were found to have been significantly associated with an increase in people with mental health illness moving from labour-market inactivity into unemployment, while there was no evidence of increased employment rates for people with mental illness (Barr et al. 2015).
A mental healthcare ‘focus on responding to measurable symptoms of illness has neglected the well-evidenced importance of environmental factors, including abuse, deprivation, violence, discrimination, powerlessness and unemployment’ (Proctor, 2015:22). This points to the multiple disadvantages suffered by people with mental health disabilities, several of which are poverty-related deficits relevant to recognition-redistribution aspects of justice-. Such multiple disadvantages are particularly important for people subject to the criminal justice system, including prisoners. They correspond to high rates of mental illness amongst groups with high levels of engagement with the criminal justice system and imprisonment including youth, black and mixed-race and unemployed male demographics (EHRC, 2015; Young, 2014).
Mental disability throughout the prison estate involves a large minority of prisoners; almost half of the prisoner population was estimated to be suffering from anxiety or depression, compared to 15 per cent of the population (NHS, 2007; see also Singleton et al. 1998). Prisons mental health services operate under the conditions of budget cuts outlined above. Bench-marked prisons heighten the un-therapeutic effects of imprisonment, and thereby exacerbate and increase mental illness. Managing mainstream prisoner wings with substantial numbers of mentally ill prisoners presents particular difficulties, including bullying amongst prisoners, neglect by over-stretched staff (of both ill and well prisoners), and increased rates of self-harm (MoJ 2014). In 2015-16 there were 100 prison suicides, the highest level for 25 years (MoJ, 2016). Correspondingly, suicide rates for men recently released from prison were found to have been eight times more likely than the general population (Pratt et al. 2006). Deficits at Yorkshire prisons include insufficient support for, and management of, prisoners with mental health and substance abuse issues. Understaffing on the wings means that the general prisoner population suffer from neglect and disorder; insufficient staff supporting mentally impaired prisoners to have sufficient support in education and work.
Mental health services in prisons continue the community NHS prioritising of measurable health symptoms over environmental factors. While all of the community environmental factors are relevant inside prison, prisons have particular environmental factors that exacerbate mental illness. Those commonly include ‘overcrowding, poor environmental conditions, poor quality food, inadequate healthcare, aggression …, lack of purposeful activity …, enforced solitude, distance from family and lack of privacy (OICS, 2015a:66). Under current conditions in English prisons, these particularly include the stresses of the chaotic, drug-affected, intimidating and sometimes violent environments that belong to the current understaffed and overcrowded conditions (see Sample 2016).
During our Yorkshire prisons research, we observed instances of good practice and commitment to supporting mental health, with prisoners receiving mental health care valuing the support receive from (inreach) mental health staff highly, particularly where, at one prison, that support had recently become regular and consistent. However, support provided by mental health staff was perceived as being provided to too few prisoners. One staff member observed that mental health screening was ‘cursory” and only identified the ‘extreme cases’. Prisoner suggested that mental health staff did not address many of their (everyday) mental health needs, including stress and anxiety. Prisoners were concerned that services were inadequate, infrequent, and inconsistent, citing lengthy waits, delays, and cancellations, as well as frequently changing mental health staff. There was also a staff view that prison was warehousing people with serious mental health conditions, and that once admitted into prison they were unlikely to be redirected to a hospital psychiatric ward.
Prison staff and prisoners had concerns about the inadequate management of mental health on the wings caused by understaffing, overcrowding, and a lack of sufficient staff knowledge. One staff member observed that (prior to ‘benchmarking’), “staff on the wing used to have time to at least talk occasionally to those with mental issues but they certainly don’t now”. The Officer observed that there were three staff for 220 prisoners on the wing, and that mentally ill prisoners “get an even shorter straw because all the officers put them to the bottom of their list of things that they’ve got to do …, because, for the most part, their issues are intractable at least at a prison officer’s level”. Another officer spoke of his frustration in being unable to adequately respond to an unwell prisoner who pressed his buzzer five times an hour right through the night because the voices in his head were tormenting him. He said: “I have another two hundred and nineteen on this wing, I can’t be devoting huge amounts of time to him though obviously he’s in serious need of intensive care”.
One officer observed that staff “don’t see someone with mental health issues as being in need of the kind of care and consideration that say a Muslim or a legless man might.” Staff in both prisons also wished for greater training in mental health; as one staff members stated, “we don’t have the skills to diagnose or even to know how to manage some of the people”. Without that training, staff were liable to mismanage prisoners suffering poor mental health (as many prisoners do), sometimes by admonishing or disciplining them inappropriately (with the consequence of exacerbating the condition and perceived misbehaviour) That lack of staff knowledge had the consequence that prison staff were sometimes unable to draw upon the expertise of mental health inreach teams at the appropriate moment for intervention.
The equalities representation framework was developing in the Yorkshire prisons. However, the resources necessary for the equalities structures to be able to focus on mental health have not developed, mental health disabled prisoners are therefore hampered in raising their equalities issues. Prisons equalities representative structures have yet to include mental health representatives and groups. Finally, Yorkshire’s overcrowded facilities are unable to make room for dedicated mental health accommodation where appropriate services and custodial care might be targeted. Instead, understaffed and overcrowded prisons exacerbate the external disadvantages and internal negative environmental factors that contribute to their disabilities.
Mental health disabled prisoners, like people in the community, can avail themselves of the protections offered by the Equalities Act 2010. However, the civil and political rights and medical frameworks do not recognise the socio-economic and other factors are intrinsic to their mental health responsibilities. This social justice deficit is apparent in the community and in prisons and particularly in the routes between the two, in the punitive conditionality of welfare-support for those negatively affected by the external multiple disadvantages, and in the incarceration of mentally ill people who may have sought diversion to mental health facilities for treatment instead of imprisonment. Punitive conditionality and inappropriate imprisonment demonstrate the limits of the Equality Act protections for people suffering from mental health disability.
Like mental illness, mental impairment (including learning impairment) is recognised as a disability under the Equality Act. Learning impairment ? also known as learning difficulty ? is a majority rather than minority disability among young offenders. Allen et al. (2014:43) state, for example, that 59% of young offenders have learning difficulties or borderline learning difficulties (IQs of 80 or less). The Criminal Justice Joint Inspection reported that the proportion remains high (if not constituting a majority) amongst adult offenders at up to 30% (CJJI, 2015:6). People with learning impairment are ‘normally assessed as unsuitable to attend community and prison-based accredited programs’ (CJJI, 2015:6). Again like mental illness, learning impairment intersects with multiple disadvantages to affect people in contact with the criminal justice system, including prisoners. The low level of prisoner literacy, with most have reading and numeracy levels below that expected for 11 year olds (Hardwick, 2014) corresponds to both high levels of learning disability and poor outcomes in terms of training qualifications and employment (see below).
The EHRC (2016) reported that ‘prison and probation staff were failing to identify people with learning disabilities, (including Gypsies, Roma and Travellers), and opportunities to help such offenders were missed’ (see also CJJI 2015). The CJJI (2015:9) observed that the prisons’ screening tool often failed to report prisoner’s learning disabilities, or incorrectly assessed its effect on prisoners’ offending behaviour or ability to engage in work. The CJJJ also reported that planning tools for supporting prisoners with communication and learning disability needs were being developed, but these were not operative at the time of our research at Yorkshire prisons. Prisons and probation trusts generally failed to make sufficient reasonable adjustments, with most treatment programs lacking adaptation for learning difficulty needs (CJJI, 2015:8). In addition, while prisoner supervisors made referrals to other support agencies for learning difficulty prisoners’ return to the community, social care services rarely continued while learning difficulty prisoners were imprisoned, thus hindering their continuity of care both in prison and after release (CJJI, 2015:9).
Our research found that one Yorkshire prison screened for learning difficulties in the education induction interview. However, industries and education staff at this prison identified learning difficulty prisoners (including Travellers, many of whom suffer from learning impairment), as not being sufficiently enabled in work and training (in part because of understaffing and under-resourcing). One prison understood that understaffing restricted the ability of workshop supervisors and tutors to support prisoners of different educational needs, including those with learning difficulties. The prison had therefore sought to gain further (but not yet gained) Additional Learner Support grants. At the same work-focussed prison understaffing impacted on education in general because of a shortage of officers to escort prisoners to learning activities, and because there were too few education and training places for the number of prisoners held.
Staff and prisoners also told us that learning impaired prisoners were being enrolled in training course that they were unable to successfully pursue because they were book-based. Work and training was sometimes noted to lack sufficient dignity and respect for learning impaired prisoners, with some occurrence of shaming in the workplace. There was also poor communication between custodial and industrial areas, with the consequence that workshops were sent prisoners (including learning difficulty prisoners) without coordinating with the workshop managers. Some prison staff also told us that they tried to sensitively support prisoners with learning difficulties during their everyday custodial duties (for example, by helping to fill out forms in non-shaming ways). Nonetheless, as the CJJI (2015) noted in its national study, prison officers lack training in supporting prisoners with learning disabilities, and the officers in the Yorkshire prisons were not specifically trained in nor required by the prison to provide such support despite policy requirement to do so (NOMS, 2011).
Prisons sought to compensate for the effects of understaffing by making use of prisoners working as peer tutors, and on illiteracy in particular. While this service was well regarded by prisoners, there were views that the numbers of peer mentors were severely inadequate for the demand and that this form of peer education was also therefore understaffed. As one prisoner involved in peer support said: “I never realised how many people are illiterate … people are wasting away here and not getting the advantage.” The findings from the Yorkshire prisons generally concur with those of the Criminal Justice Joint Inspection (CJJI, 2015). Beyond our findings, the inspectorates noted some additional equality-deficits in terms of the experience of imprisonment for learning difficulty prisoners. Notably, learning difficulty prisoners suffered from high levels of self-harm risk, high levels of sanctioning and discipline for poor behaviour, difficulties with the written format of much prison bureaucracy, and feelings that staff did not understand their disability and needs (CJJI, 2015: 10). Difficulties with prisons’ written forms processes meant they were unlikely to be able to engage with the written discrimination or other complaints process, thus rendering them somewhat voiceless as a group, despite the policy instructions guiding officers to assist with forms (CJJI, 2015:10; NOMS, 2011). Moreover, the CJJI (2015:10) found little evidence that work done with learning difficulty prisoners had contributed to greater employability or reduced reoffending. These finding corresponded to our observations in Yorkshire prisons where learning difficulty prisoners’ peers expressed concern for their literacy needs, and resonated with our finding that staff lacked sufficient knowledge of prisoners’ characteristics and needs. This was noted as particularly problematic given the relative invisibility of learning difficulties and mental disability (as compared, for example, to physical disabilities).
Learning impairment falls within the core prison service aims of reducing reoffending, and the supporting roles of prison work, training and education to help prisoners overcome disadvantages that hamper successful reintegration after serving sentences. This together with the status recognition of mental impairment (under the Equalities Act) should engender positive support for people with learning impairment under the provisions of the Act, in order to facilitate parity of participation.
The Yorkshire prison research and the CJJI (2015) findings suggest that – just as with the protected characteristic of mental illness – civil and political rights protections may not be, in practice, sufficient to the task of ensuring equality for learning impaired prisoners as a protected characteristic group. The lack of adequate screening for learning disability, and the lack of sufficient staff training on recognising and supporting learning disability prisoners, as well as the inadequate degree of reasonable adjustments made on behalf of learning difficulty prisoners suggests that this group lacks sufficient recognition and redistribution.
Neoliberal austerity is liable to continue hampering support for learning impaired prisoners, regardless of the Equality Act protections. This would mean that many learning impaired prisoners would continue to return to equal or greater marginalisation, especially if subject to multiple disadvantages (as argued below), once back in society (EHRC, 2016). Arguably, this cumulative building of disadvantage is likely to contribute to the churn of learning impaired people in and out of incarceration.
Like mental health disability, mental impairment and learning impairment, substance abuse amongst those subject to the criminal justice system involves multiple disadvantages. Such substance-dependent people “are more likely to need support with housing, education or employment to change their lives and prevent future victims, yet …these offenders will find it more difficult to access mainstream help than the general population” (NOMS et al. 2015:1).
Support for prisoner substance misusers to overcome addictions is provided by the Substance Abuse Team (SAT) in partnership agreement with National Offender Management Service, NHS and Public Health England (NHS, 2012). Our research in one industry-focused Yorkshire prison found significant deficits in terms of status recognition for substance-dependent prisoners. Prisoners sometimes identified a lack of respectful treatment for prisoners with addictions by staff, and prison support for drug abusers (and drug debtors) was seen as less legitimate than support for other groups (including physically disabled and older prisoners). Some officers had limited knowledge of the issues surrounding addiction and of the specific needs of prisoners on drug treatment programmes.
There were views that, without training, custodial managers and staff will view drug users in pejorative terms, fail to understand their disadvantaged backgrounds and substance treatment needs, and continue to fail to support substance misuse treatment as a core duty. Some staff at this prison lamented the loss of previous facilities dedicated to substance misuse: “You could have abstinence wings, drug free compact, alcohol free compact…if you get 200 people on a wing,… you’re taking a big percentage of your main population away there, from potential disruption” . Another prison had maintained its recovery wing despite understaffing and overcrowding pressures. However its ability to maintain the wing as a therapeutic environment as severely hampered by crowding pressures, which caused it to use hold some mainstream prisoners on the wing, and to hold some prisoners needing substance-dependence treatment in mainstream prisoner accommodation. We were told that staff had become less tolerant of diversity under the pressures of understaffing and overcrowding. Despite this austerity-led deficit, one prison working as a ‘recovery champion’ (a peer mentor encouraging other prisoners to engage with recovery programmes), observed that the prison with the recovery wing still provided greater access to support than the other (as he had been transferred from one to the other).
Thus the deficits of status recognition corresponded to problems of maldistribution requiring greater resourcing: as SAT members suggested that these deficits could be addressed through dedicated substance misuse training for prison staff, and consistent staffing on wings (in order to allow staff to get to know prisoners and their substance-related issues better).
Insufficient support for addictions also impacted on all staff and prisoners within the prison as large numbers of addicted prisoners are on each wing. This increases wing volatility as staff time is taken up with managing violence, debt and safety issues related to drug addiction: as one prisoner observed “staff are busy dealing with spice heads or fights over drug-related debt”. Our research at Yorkshire prisons corresponds to the chief Inspector’s observation that synthetic cannabis has ‘fuelled more severe problems in the system than officers have faced from any other drug, with prisoners racking up greater debts, and suffering worse bullying and violence’ (Sample, 2016). Redressing the recognition-redistribution shortfall for substance dependent prisoners would that have a more widespread positive effect for the rights of prisons to experience decency, respect, and adequate recognition of and support for (redistribution) their needs.
The situation of substance-dependent people in prisons gives rise to possible recognition-redistribution and deliberative justice claims. However, these could not be progressed in an affirmative relationship to the Equality Act, as it excludes substance misusers from the protected characteristic of disability. As Flack (2012:397-8, 402) explains, the British exception to the ‘social model of disability’ derives from a focus on the characteristics of impairments and the criteria for eligible disability status, rather than on the social context of acts of discrimination and barriers to full participation that form the subject of the Convention and other national disability legislation.
In its British framing, addiction is regarded as a matter of choice, and therefore as the moral failing of weak willpower in which the addict is regarded as undeserving of support (Valverde, 1998; Campbell, 2005). Political and public discourse also frames criminality as a matter of individual moral failing within the prevailing punitive neoliberal culture (Bell, 2011; De Georgio 2006; Lacey, 2008). Drug and alcohol addicts lack the status given in the Equality Act’s recognition, and the support that protected characteristic status provides. The NHS and prison’s support for addicted prisoners works within this context of symbolic and material lesser eligibility. Consequently, rights-based recognition for addicts (and substance dependence offenders in particular) is unlikely to gain public legitimacy.
However, addiction is regarded as a form of mental disorder by the World Health Organisation and the American Psychiatric Association, is included (or not excluded) in the disability legislation of other countries, and also not excluded under the Convention on the Rights of Persons with Disabilities (Flack, 2012:397-8). Arguably, addiction could be included within the protective remit of the Equality Act as a mental health disability, in line with its international recognition as a form of mental disorder. Granting substance-dependence the status of a disability would enable health and prison staff and prisoners to make equality-based claims for better support, including dedicated accommodation for treatment, and for substance misuse training prison staff. Like the support for mental disability and mental impairment, this could involve justice representation through substance-dependent representatives and group meeting structures.
As has been the case with mental health disability and learning impairment disability, were the Act to grant status recognition to substance-dependence, he neoliberal austerity regime in healthcare and penal services might limit the support provided to that which meets the requirements of punitive conditionality, thus hampering the redistributive justice of the characteristic’s recognition within the Equality Act. Moreover, were substance dependence to fall within the remit of the Equality Act, it might do so on a basis that rendered its contributing factors, particularly those that are socio-economic, as irrelevant within the neoliberal idiom that focusses on individual moral responsibility and medically-defined eligibility.
Transformative justice for people with socio-economic and multiple disadvantages in prisons and the community
Mental health illness (including substance-dependence) and learning difficulties are sometimes-overlapping disabilities that impair the ability of people to participate as full members of society. For people subject to the criminal justice system they tend to overlap with other debilitating disadvantages, including the poverty-related factors of poor education, precarious employment or unemployment, and homelessness (Bramley and Fitzpatrick et al. 2015). The multiplicity of disadvantages suffered by prisoners recognised as disabled and those otherwise impaired (including substance-dependent individuals) points to the interaction of impairment and social barriers in bivalent and intersectional (Potter, 2015) and broader terms than those defined within the terms of the Equality Act.
In terms of equality recognition and redistributive rights for mentally disabled groups, this bivalent and intersectional understanding point towards the need to take into account the intersection, and their cumulative interaction of class disadvantages and mental disability as barriers to equitable participation. Mental health disabilities (including substance dependence) contributing to incarceration (and repeat incarcerations in particular) tend to correspond to histories of childhood trauma and familial disadvantages (Bramley and Fitzpatrick et al.2015). Many prisoners had been disadvantaged by poor educational outcomes prior to imprisonment. 47% of prisoners say they have no qualifications, compared to 15% of the working-age general population (MoJ 2012b). Poor education corresponded to under and unemployment. Two thirds of UK adult prisoners had been out of employment prior to incarceration, and those that had been in employment were likely to have been earning at approximately half of the average national wage (Hardwick 2014; Grimshaw et al. 2014:26). In 2012-13 just 26% of prisoners entered employment on release from prison (MoJ 2013a). Only one in six of prisoners in England and Wales have both somewhere to live and a job or training arranged when they are released (CJJI 2014). These mental health disabilities (including substance dependence) combined with education and employment disadvantages to contribute to high levels of debt and homelessness prior to and following incarceration (Bramley and Fitzpatrick et al. 2015).
These ‘criminogenic’ multiple disadvantages intersect with problems of recognition ‘esteem’, preventing parity of participation. This is particularly evident in the case of substance-dependent people subject to the criminal justice system and incarceration. As noted above, substance-dependent people (excluding the high functioning drug users) are hampered in their ability to gain employment by the reluctance of employers who view them in stereotypical terms as morally inadequate and undeserving, as well as by the physical limitations of their addicted states, and the inability to build or maintain relevant skill-sets (Bauld et al. 2010). Chronic under and unemployment leads to reliance on welfare benefits and cash income from the informal economy, with pressure for greater dependence on the latter in cases as disability benefits have been restricted (IFS, 2015). The increasingly punitive welfare conditionality that applies to substance-dependent people is more broadly relevant for the broader recognized category of mental-disability, which constitutes an increasing proportion of benefit claims.
The inability of mentally disabled and learning difficulty people to support basic needs (and addictions, for the substance-dependent) often leads to indebtedness, homelessness, criminal sanction and incarceration (Bauld et al. 2010). Thus the socio-economic disadvantages that frame the disabilities of the poor are impairing and criminogenic. This suggests that the rejection of socio-economic disadvantage, and its subsumption within recognition for civil and political characteristics in the Equality Act misrecognises the multiple social disablements of many offenders and prisoners, requiring redistributive justice. Although not congruent with the dominant neoliberal equalities discourse, grounds for this kind of intersectional approach exist within national and international prison research and work; as Bramley and Fitzpatrick et al (2015) note, the study of serious multiple disadvantage is being developed in the UK; and in Australia, holistic approaches to reintegration bring together specialist staff to support education, employment, mental health (including substance-dependence) and physical wellbeing needs for prisoner reintegration (see, for example, OICS, 2015b).
This article has examined several bivalent characteristics protected under the Equality Act (2010) in terms of Frasers framings of recognition and redistribution, and noted that the Act has room for a greater scope of protection for some groups, within its existing civil and political and neoliberal terms. This includes, for example, an extent of greater support for mentally disabled prisoners. For Fraser (1995:82), this kind of extension of rights is ‘affirmative’, involving ‘correcting inequitable outcomes of social arrangements without disturbing the underlying framework that generates them’. For prisoners with mental disabilities, affirmative corrections might include the training of prison officers to recognize behaviours corresponding to mental health illness, This kind of equality remedy is one of recognition (officers can recognize symptoms), and redistribution (additional resources for training officers).
Affirmative rights are limited by their congruence with prevailing social arrangements and their underlying framework. Such limits are apparent in non-recognition of substance-dependence as a protected characteristic within the terms of the Equality Act. As described above, the inequitable effects of the intersection of the condition of substance-dependence and socio-economic disadvantage constitute a form of impairment that cannot be recognized by the neoliberal order of contractual and competitive citizenship and welfare conditionality, because it is, to a strong extent, produced by and intrinsic to this order. For substance-dependence to be recognized with the status of a protected characteristic within the terms of the Equality Act would require a transformation of the prevailing morality and political economy of the neoliberal order framing this intersectional inequality (Fraser 1995:82).
Transformation, in the recognition aspect of Fraser’s terms, would involve the underlying cultural-valuation structure so that the substance-dependent group would be recognised in terms that granted greater status (as, in this instance, a protected characteristic). At the same time, transformation requires that everyone’s sense of belonging, affiliation and self is open for change in this process of recognition (Fraser, 1995: 83). This would means dissolving the moral dichotomy that works between ‘deserving’ mentally ill people, and ‘undeserving’ addicts (and drug debtors, in prisons). That dichotomy, as discussed above, is based on neoliberal notions of individual choice and responsibility (or criminal culpability, in the case of people convicted for drug-related offences).
Transforming the Equality Act to recognise the factors contributing to substance dependence would require a shift from the focus on the medical definition of disability and criteria for eligibility, to the social context of acts of discrimination and barriers to full participation that form the subject of the Disability Convention. These barriers correspond to forms of welfare conditionality and lesser eligibility that legitimate the punitive treatment of substance dependents as well as the neglect of the milieu of multiple disadvantages in which dependence develops. Thus recognising substance-dependence as a protected characteristic would be transformative because it requires the de-recognition of key aspects of neoliberal penality.
Transforming the Equality Act to recognise multiple disadvantages as key to the disabling of substance-dependent people has intersectional implications for prisoners and other groups and individuals whose ability to participate as full members of society is impaired by comparable multiple disadvantages. For prisoners suffering from the equality deficits discussed above, a starting point might be implementation of the expert view that that there are too many “mentally disordered” prisoners in prison, and recommended that the justice system should ‘remove mentally disordered offenders, offenders with learning difficulties and those suffering from drug or alcohol from prison, through investment in and transfer to more appropriate facilities, treatment and rehabilitation’ (Allen et al. 2014:20).
There is quite a lot of detail – can you draw out the broader argument more and limit the detail to what supports it? As this is a theoretical journal, it needs more theoretical punch, and certainly it would be useful if Fraser’s framework is outlined at the start. I wasn’t convinced about the structure – if you are using Fraser’s framework could you structure and recognition and limitations on redistribution rather than the different prisoner cohorts – substance-dependence etc.? This would certainly draw out more of the theoretical work.
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 Including the Sex Discrimination Act (1975); Race Relations Act (1976); Disability Discrimination Act (2005), Equal Pay Act (1970).
 In this article, all groups are treated as bivalent as there is always some form of recognition-redistribution dialectic in terms of equality.
 Liberal theory is sometimes approached as a theory of individual liberty, without reference to its coercive, despotic or exclusionary elements (see Cole 2001).
 At the time of writing we had completed research in two of the three fieldwork sites (male Yorkshire prisons).
 Physical disabilities include longstanding difficulties in sight, hearing, or learning; epilepsy; cancer; HIV/AIDS; neurological disorders and poor health.
 The World Health Organization uses the term ‘learning disability’, referring to ‘significant impairment of intellectual functioning’ and ‘significant impairment of adaptive/social functioning’.
 EHRC (2016) states that Gypsy, Roma and Traveller people suffer from high rates of illiteracy based on ongoing poor educational outcomes.
 Addiction to alcohol, nicotine or any other substance (except where the addiction originally resulted from the administration of medically prescribed drugs) must not be considered as impairment for the purposes of the Equalities Act.
 The Conservative government has suggested that welfare-support support for substance-dependent individuals should be provided on the condition of participation in treatment programs (Wintour, 2016).