The provisions of section 35 and section 36 of the Mental Health Act are not used very much, probably as a result of the preferred policy of diversion (whatever that means) from the criminal justice system. Each section allows criminal courts to remand someone to a suitable hospital for assessment and care, as well as for a court report to be written to assist the court in reaching the correct conclusion before or during trial.
The most recent high profile example of these mechanisms being used, was the remand to hospital which followed the intial appearance at court of Phillip SIMELANE. He was prosecuted for the murder of 16 year old Birmingham schoolgirl, Christina EDKINS in March 2013 and will stand trial later in the year.
One of the first difficulties with these remand provisions, is that neither of them allow defendants to be remanded to hospital after their initial appearance at the Magistrate’s Court. You’ll note, for example, that Phillip SIMELANE, having been charged, appeared directly before Birmingham Crown Court.
- Section 35 is for defendants pending trial before the Crown Court or having been convicted or found responsible before the Magistrates Court – The provision allows a remand to hospital so that a report may be written on the defendant’s mental condition. The Crown Court may exercise this power for defendants awaiting trial; the Magistrates may do so only where the patient is convicted OR the Magistrates are satisfied that they did the act or made the omission with which they are charged.
- Section 36 is a power for a Crown Court to remand a person to hospital for treatment pending their appearance for trial – This requires the written or oral evidence of two doctors and is available for any offence punishable by imprisonment, except for offences where the punishment if convicted is fixed by law. So section 36 cannot be used in murder proceedings, for example.
I have been involved in a few investigations where the potential of these remand provisions were being considered in police custody before charge, with a view to better assessing and managing certain offenders. There are a few problems associated with it, not least of which is that no-one in practice really seems to know what this all means.
Firstly, mental health services sometimes use Part III provisions, of which these remands form part, as a key criteria for accessing secure, forensic services. I have written before, that clinical need is clinical need regardless of the legal framework that sits around it, so I have always been nervous about hearing that clinical judgements are sometimes made upon legal contingencies that cannot be relied upon. To give a specific example, I remember a being asked to advise a senior investigating officer (SIO) in a murder investigation where a patient who was arrested for the offence was in need of being admitted to a medium secure facility, according to the MHA assessment team and the forensic psychiatrist who also turned out to the cells. However, there was simply not enough evidence to charge him with the offence at the time and the SIO wanted the man admitted and bailed for further criminal inquiries. There was something of a stand-off because initially, there was a reluctance to admit him to the unit under s3 MHA without him being charged – also because they were struggling for an available bed. I’m not sure how status within the criminal justice system as a suspect or a defendant, alters the clinical need.
Secondly, there can be no control by police or clinicians over the courts. A recent example in a guest blog highlighted how an MHA assessment lead to a conclusion that a man needed to be remanded under s35 to a forensic unit for assessment, having been charged with assault. However, upon arrival in court he pleaded guilty and as the offence was comparatively minor, he was given a conditional discharge as his sentence and released. Presumably, there was panic in the mental health services to then have him detained under s2 or s3 from the court cells. Something which could have been done the previous evening from police cells under more controlled conditions. The courts have a duty to act proportionately also and remanding someone to a psychiatric hospital for up to twelve weeks for a comparatively minor offence could be argued disproportionate and in my view, discriminatory. Do you know the background you must have to be remanded to prison for twelve weeks for a minor offence?
Only this week, I’m aware of a mentally ill man being in custody for a serious offence who in the opinion of mental health professionals needed hospital admission for assessment and treatment. Rather than ‘section’ him, they encouraged that he be charged with the serious offences and remanded under s35 – this was probably a reasonable suggestion on their part, in fairness to them … but the court took a different view and he is now in prison whilst psychotic. Not great.
Thirdly, we have to bear in mind the old problem of how we make decisions in police custody about how to manage any mentally disordered offender. How is information shared before charge, to ensure that investigating officers properly inform prosecutors who can then make informed decisions in courts. We see again and again, reluctance to share information with criminal justice agencies despite that having a direct bearing on how our system manages the most complex of “offender-patients”. This is deeply ironic, given the creation of a non-existent axiom between secure mental health care and criminal justice.
Finally, I have an underlying concern about how these decisions may affect “fitness” assessments in police custody. In two cases I have known where MHA assessments have led to suggestion that people should be prosecuted for a “Part III remand”, it has been obvious from the description given and from written notes left in custody, that clinicians did think that someone was “suffering a mental disorder of a nature or degree” that warrants admission. We know that being remanded under ss35/36 does not bring the defendant under the full auspices of the Mental Health Act. For example, someone remanded may not be treated without consent under Part IV of the Act. There has been caselaw where a s35 remand defendant has ALSO been ‘sectioned’ under s3 so that Part IV provisions may be used. Confused?! You should be – with regard to how these decisions that are little researched are played out in police custody before charge. What would it say about decision-making if we knew that in custody someone was not ‘sectionable’ because they should be prosecuted and remanded for a court report, only to find that once remanded they were ‘sectioned’ under Part II anyway?!
NB: Important legal point >> If patients who are remanded to hospital under sections 35 or 36 escape from hospital or whilst being conveyed to hospital: only the police may redetain them and they must be taken as soon as possible back to the court which remanded them. This is unlike AWOL patients or Absconders / Escapers from places of safety.
The Mental Health Cop blog won
- the Mind 2012 Digital Media Award, in memory and in honour of Mark Hanson.
The Awards celebrate the “best portrayals of and reporting on mental health in the media.”
- a World of Mentalists 2012 #TWIMAward for the best in mental health blogs.
It was described as “a unique mix of professional resource, help for people using services and polemic.”