I’ve written before about how the prosecution of suspects who have mental health problems can be in the public interest – usually for more serious offences but also where indicators of serious future risk are obvious. To say such a thing is not to argue for the unnecessary criminalisation of vulnerable people, but to observe that the legal system which exists around offenders with mental health problems is one that is effectively owned and controlled by the criminal justice system. You may have a view that this is not correct – I’m merely writing in the context of this being the law as it stands.
The law was not particularly written with informal ‘diversion’ in mind – whatever that means – although obviously nothing prevents an argument that many situations involving vulnerable people offending are so straight-forwardly obvious as to render prosecution unnecessary or plainly ridiculous. Where prosecution has occurred, it does not necessarily mean that those instigating it are arguing for conviction or imprisonment: merely for the relevant arguments and issues to be considered by independent people – judges / juries. Within the justice system there are a range of mechanisms by which to properly assess how society should then manage the complex challenge of ‘offender-patients’ which are thrown towards mental health professionals and the criminal justice system.
- Informal approaches to ‘diversion’ before charge
- ‘Unfitness’ considerations about whether defendants who are charged are fit to plead or fit to stand trial – where such arguments are successful concerning ‘fitness’ a court can consider whether the defendant ‘did the Act’ without the associated ‘mental element’ (or mens rea)
- The insanity defence, where’s defendants argue that they can not be held responsible for their offences because of a ‘disease of the mind’.
In each of the latter two cases, it is available to a court to impose a hospital order under s37 MHA upon any defendant who is found ‘unfit’ or ‘insane’. Even if a court has found a defendant ‘fully’ guilty, criminal courts can still choose a hospital order as a sentence after guilt, if the criteria are satisfied. It is necessary for the imposition of a hospital order that two doctors give evidence that the defendant is suffering from a mental disorder of a nature or degree that it appropriate for them to be detained in hospital.
The Hospital Order can therefore be a sentence upon conviction OR a diversion, depending upon ‘fitness’, a successful defence of insanity; OR a finding or plea of guilt. Prior to making a full hospital order under s37, a court may choose to impose an ‘interim hospital order’ under s38. This allows detention of a person, intially for twelve weeks, but renewable for four week periods up to a maximum of twelve months, to determine whether a ‘full’ hospital order is apporpriate. All clear so far?! – good!
THE RESTRICTED HOSPITAL ORDER
If, whilst imposing a hospital order, a court are satisfied that “it is protection of the public from serious harm” to ‘restrict’ the hospital order, they can impose restrictions under s41 MHA. Specifically, only the Crown Court may impose
NB: the restrictions imposed are NOT upon the patient: they are upon the Clinician in charge of the patient’s care. They are prevented from doing certain things without the authority of the Secretary of State for Justice who discharges these responsibilities through the Ministry of Justice’s Mental Health Unit:
- Authorising the patient to have leave from hospital
- Authorising the patient to be transferred to another psychiatric hospital or step-down facility
- Authorising the patient’s discharge from hospital to community based care or from the MHA.
In order for these things to occur, the psychiatrist in charge of the patient’s care must secure MoJ permission – very often it is given after proper risk assessment at suitable point in the patient’s recovery; but sometimes it is denied.
Therefore, a restricted hospital order is a serious legal tool used sparingly: it detains ‘without limit of time’ someone who has committed a serious act or who poses a serious risk and whose ongoing detention is required for their treatment and for public protection. Such orders are often in place for several years but this point is crucial: re-offending rates after release from hospital are superb compared to re-offending rates from the criminal justice system generally. Roughly 6% of patients re-offend after discharge from s37/41 care compared to around half of prison releases. They are extremely effective in longer-term recovery or ‘rehabilitation’ terms.
Legal note: a Crown Court may make a restriction order; but a Magistrates Court may not. Magistrates have a power under s43 to ‘commit’ a case to the Crown Court if it appears that a restriction order is appropriate.
PUBLIC PROTECTION AND OFFENDER MANAGEMENT
When a patient subject to a restricted hospital order is released from care, it is never just a case of releasing them to try to rebuild their lives after what may have been years of detention. Firstly, patients are often first transferred through different kinds of facility, including ‘step-down’ facilities such as semi-supervised hostels, or similar; before being considered suitable for discharge. Even then, s37/41 patients are always subject to ‘conditional restricted release’ under s42 MHA. This means that the patient moves formally into a community care system and a (forensic) community mental health team will support them after release. However, until authorisation is given for full discharge from the MHA the patient can be recalled at anytime to hospital where grounds for concern exist. The MoJ may issue a warrant for recall under s42 which authorises the police to remove a patient back to a specified hospital where the individual regains their original status as a s37/41 Restricted Hospital Order patient.
Furthermore: anyone who is sentenced or diverted to a restricted hospital order for a certain set of offences – all serious sexual and violent offences are included in the list – will become subject to Multi-Agency Public Protection Arrangements – or MAPPA. These multi-agency procedures ensure that in addition to psychiatric services caring for the person as a patient in the community, there is relevant information sharing to the police and probation services and other relevant agencies to assist in monitoring risk. A joint strategy is then developed to ensure appropriate supervision from the range of relevant agencies – the police call this: “offender management”.
A similar legal framework to the restricted hospital order exists for prisoners from the prison system. Where a prisoner develops mental health problems or is found to have mental health problems of a nature or degree that makes it appropriate for them to be detained in hospital for medical treatment, the Ministry of Justice can authorise the person to be transferred into the mental health system. For convicted prisoners this occurs under s47 MHA, whilst unconvicted prisoners who have been remanded in custody by the court pending trial or other prisoners (like immigration detainees) can be transferred under s48. If the MoJ is satisfied that it is necessary to impose ‘s41 restrictions’ upon the prisoner, they may do so under s49.
From the time a prisoner transferred under s47 or s48 arrives in the mental health system, they are treated ‘as if’ they had been sentenced to a hospital order under s37 – with the restrictions, if appropriate. Should they have recovered sufficiently before the end of their original prison sentence they can be remitted back to prison under s50 MHA. If they remain in hospital at the point where their prison release dates arrives, the person moves from the legal status of a transferred prisoner to become purely a patient and remains detained in hospital until the clinician in charge of their care authorises release or discharge.
I hope that gives all too quick an overview of some complex legislation, including how / whether / why mental health orders from the criminal justice system impact upon public safety? It also shows why prosecution of just some offenders is sometimes necessary in the public interest. Of course the trick, as always, is for this to be understood and considered by those taking decisions on the ‘frontline’ of all agencies – because can appear to be something close to rocket science or brain surgery for most of us!