Chapter Four
Statutory powers for the assessment and treatment of high risk
mentally disordered offenders
4.1 The majority of individuals who
require compulsory care and treatment under powers in mental health legislation on the basis
of the risk of serious harm they pose to others will be offenders, whose care and treatment is
authorised by the Courts. Under new legislation, the conditions that need to be met for use of
compulsory powers will be the same for mentally disordered offenders as for other people, but
different procedures will apply.
4.2 Where there is a link between
the offending behaviour and the person's mental disorder, compulsory care and treatment
may be necessary to manage behaviours arising from the mental disorder that may lead to
serious harm to other people. In the majority of cases, the care and treatment plan will also
contain elements that are designed to be of direct therapeutic benefit to the individual
concerned, but this will not be a requirement for a compulsory order to be imposed. (See Part
One, paragraphs 3.14-3.18).
Offenders before the Courts
A single power of remand for assessment and treatment
4.3 Chapter Four of the first part of
the White Paper sets out a simplified procedure for the Courts to obtain a medical
assessment and order treatment at any stage of the trial when mental disorder becomes an
issue.
4.4 A court remand for assessment
will be based on a single medical recommendation from an appropriately qualified doctor. A
second medical opinion will be required before compulsory treatment can be given. The
remand could be to detention in hospital or for assessment in the community on bail. The
power will apply in both magistrates' and the Higher Courts.
4.5 The order will be renewable by
the Court at 28-day intervals for up to a maximum period of 12 months, on the
recommendation of the clinical supervisor. But the Court will be expected to make a disposal if
the person is convicted, as soon as there is sufficient information to make an effective
sentencing disposal. The offender will have the right to legal representation at any hearing
where renewal of the remand order or sentencing is considered.
Moving between assessment facilities
4.6 During the assessment of an
offender on remand, it may be necessary to transfer the offender to a different location for
specialist assessment for, for example, learning disability, or DSPD. Such changes will be
ordered and reviewed by the Court on the basis of revised care and treatment plans submitted
by the clinical supervisor. The offender would have the right to legal representation to contest
such changes.
Agreeing leave
4.7 The remanding Court will have a
power to agree to the offender being given leave from hospital on the recommendation of the
clinical supervisor. In some cases, the Court will be able to allow the clinical supervisor to
grant leave, but where public safety is an issue because of the nature of the offence or mental
disorder, the Court itself will reserve the power to grant or refuse applications for leave.
Sentencing
4.8 Chapter Four of Part One of the
White Paper sets out the range of sentencing options that will be available to the Court
following a specialist assessment for mental disorder:
| a criminal justice disposal this will be at the discretion of the Court to decide in the light of the offence, the
medical evidence, any history of offending and the implications of a particular disposal for the
offender's future management, both in terms of his or her treatment needs and any risk to
other people:
Any of these disposals would signal the end of
detention under mental health legislation unless the Court makes a hospital direction (see
below) or the person is transferred to hospital on the direction of the Home Secretary (see
paragraphs 4.11 4.13 below).
a care and treatment order this option will be available only if, on the basis of a full assessment by specialist mental health services, the clinical supervisor recommends continuing care and treatment and
the Court considers the criteria for making a care and treatment order under the new
legislation are met. Unless a restriction order applies (see below) the procedures for discharge
of the order would be the same as for an order made by a Mental Health Tribunal. A care and
treatment order made by the Court would be for a maximum of 6 months. Any extension of
liability to compulsory treatment after that would be through the procedures for a Tribunal
order described in Chapter Three.
a restriction order where the clinical assessment indicates that the offender poses a significant risk of serious harm to
others, or because of the nature of the current offence or previous convictions, the Court will
be able to add a restriction order to a care and treatment order. This will only be applicable
when the care and treatment order is based on detention in hospital.
a hospital and limitation direction the Court will retain the option of combining a criminal justice tariff with an order for
care and treatment under mental health legislation by adding a hospital and limitation direction
to a prison sentence. A hospital and limitation direction has the effect of requiring the
offender's detention for medical treatment in hospital until such time as the clinical supervisor
advises that treatment in hospital is no longer necessary. The offender can then be
transferred to prison, by direction of the Home Secretary, to complete his or her sentence.
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Offenders on a restriction order
4.9 The purpose of a restriction
order is to ensure that decisions to grant leave, transfer or discharge the patient, or otherwise
vary the order in a way that would provide greater liberty for a patient who is assessed as
dangerous, are taken on the basis of a comprehensive risk assessment. Patients who are
subject to restrictions will be managed under the supervision of the Home Secretary, as in the
1983 Act, and will only be able to be discharged from detention in hospital by the Mental
Health Tribunal or the Home Secretary.
Hospital and limitation direction
4.10 Under new legislation this
option will be available for a patient diagnosed with any mental disorder within the meaning of
the legislation. The hospital direction is particularly suited to cases where care and treatment
for mental disorder under compulsory powers in mental health legislation is recommended
following a remand for assessment, but the nature of the offending and assessment of
dangerousness indicate a need to pass a life sentence.
Managing Dangerous People
with Severe Personality Disorder Assessment and Sentencing of Offenders Before the
Courts
Where an individual who may be DSPD is before the courts for an offence, it is important
that judges have all the information they need to inform their sentencing decisions. Following a
screening assessment, it will therefore be for the judge to order transfer of a defendant to a
specialist NHS DSPD assessment centre for the full assessment process. The report of that
process would then be available to the judge to assist in determining which of the various
options (see paragraph 4.8 above) is appropriate. This option may come to the judge's
attention in a number of ways.
Where an individual on remand for an offence is thought to have a severe personality
disorder, a 'DSPD' screening assessment will be carried out by a specialist clinical team (see
paragraphs 6.39 6.41) at the request of the prison, and the information fed back to the
Court. Alternatively it may be clear to the trial judge at the beginning of the trial that a
screening assessment is required. As an additional safeguard, where no screening
assessment has been carried out in spite of the evidence of the high risk posed by the
defendant, it will be for the responsible probation officer to consider whether to recommend a
DSPD screening assessment as part of the pre-sentence report.
There will be a statutory duty on the relevant NHS trust to carry out an
initial assessment under the new legislation where this has been requested by the probation
service, the police, the Prison Service or the Court. If the screening assessment indicates that
a specialist DSPD assessment is appropriate, the Court can direct the offender to a specialist
DSPD assessment facility in the NHS for 28 days at a time whilst they remain on remand. The
Court will be asked by the clinical team to renew the assessment order every 28 days until the
specialist DSPD assessment is completed. The specialist DSPD assessment is currently
designed to last for 3 months.
On conviction, the report from the clinical team carrying out the specialist
DSPD assessment will be presented to the sentencing judge to decide on the most
appropriate disposal for the offender. Where care and treatment in the NHS is indicated, a
compulsory care and treatment order in hospital or hospital direction, with a limitation
direction, would be recommended in the report. Where care and treatment in the NHS is not
indicated, but the offender nevertheless is assessed as posing a risk of serious harm to
others, the judge may consider that a discretionary life sentence, where the nature of the
offence makes this an option, would be appropriate to protect the public.
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Prisoners
Referral for assessment and treatment under compulsory
powers
4.11 Under the 1983 Act, the Home
Secretary has the power to transfer a prisoner to hospital for treatment, but does not have a
power that would allow for a period of specialist assessment without treatment. The new
legislation will provide for the Home Secretary to direct a prisoner to undergo a specialist
assessment for mental disorder, in addition to powers to direct transfer to hospital for
treatment. Such a specialist assessment will take place in an appropriate environment, which
could be in a hospital, or a dedicated section of a prison. In particular, this will allow for
specialist assessment of prisoners who are high risk before decisions on possible transfer to a
specialist mental health unit are considered.
4.12 A transfer direction will
generally specify that a prisoner is detained in hospital for treatment, and carry a restriction
direction, which has the effect of a restriction order as described in paragraph 4.8 above.
4.13 When a transferred prisoner
reaches the date on which he or she would have been released from prison, authorisation for
continuing care and treatment will be subject to the clinical supervisor submitting an
application for approval by the Mental Health Tribunal in civil proceedings as described in
Chapter Three.
4.14 Where the patient remains
subject to compulsory powers on expiry of their restriction direction because of the risk of
harm they pose to others, the Tribunal ordering continuing care and treatment will be able to
require that decisions on discharge, leave and transfer should be referred to it for prior
approval. This provision will allow the Tribunal to continue independently to scrutinise the
evidence of risk to others from both the clinical team and other agencies, before the patient is
discharged from detention in hospital, or significant changes are made to the care plan (see
paragraph 3.21).
Managing Dangerous People
with Severe Personality Disorder: Case Study 'B'
B is currently serving a 3 year prison sentence. He has a history of offending against
female strangers and has a low threshold to violence exacerbated by substance abuse. He is
emotionally unstable and demonstrates disregard for the feelings of others. He was assessed
under the Mental Health Act 1983 as having a psychopathic disorder, but is 'untreatable'. The
most recent sentence is for possession of an offensive weapon and agencies are working in
partnership to manage his eventual release, since he regularly breaches his licence
conditions.
The new arrangements would affect B whilst still in prison. He would
undergo a specialist DSPD assessment in a prison assessment facility which would provide a
more comprehensive picture of the risk he poses to others and his needs than current
assessments carried out under the Mental Health Act 1983. If transfer to hospital was
appropriate, the transfer direction would carry a restriction order which would allow him to be
conditionally discharged with help and support in the community, required to reside in a
specialist rehabilitation hostel if appropriate, and quickly recalled to hospital if necessary. If
hospital care was not appropriate, he would be transferred to a suitable Prison Service facility
that provides Prison Service regimes and other interventions relating to his identified needs.
The statutory duty on health and social services agencies to share information with others
where justified will ensure effective risk management when B is eventually
discharged/released into the community.
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Role of the Tribunal for patients subject to
restrictions
4.15 Where the Court has imposed
a restriction order, it will be on the basis of a risk assessment which concludes that because
of behaviours associated with mental disorder, or for other reasons, the offender poses a
significant risk of serious harm to others. The Court will expressly have given the Home
Secretary the responsibility to monitor the management of such offenders and to scrutinise the
pace of their rehabilitation from the viewpoint of the protection of the public. The Home
Secretary will retain the responsibility in this regard that he has had under the 1983 Act. He
will remain the primary authority for the discharge of these offenders. Accordingly, for patients
subject to restrictions, the role of the new Mental Health Tribunal will be similar to that of the
Mental Health Review Tribunal under the 1983 Act. The Tribunal will be required to review the
offender's liability to detention in hospital for treatment, and ensure that it remains justified,
rather than considering an application for making or renewing a care and treatment order as
described in Chapter Three for civil patients.
4.16 Review of detention would be
on the basis of whether there was continuing evidence that:
- the patient is suffering from a mental disorder;
- the mental disorder must be of a nature or degree as to warrant specialist care and
treatment;
- a plan of care and treatment must be available to address the mental disorder. In cases
where the use compulsory powers arises primarily in the patient's own best interests, that plan
must be anticipated to be of direct therapeutic benefit to the individual concerned. In cases
where compulsory powers are sought primarily because of the risk that the patient poses to
others, the plan must be considered necessary either directly to treat the underlying mental
disorder or to manage behaviours arising from the disorder.
Role of Parole Board for prisoners serving a life
sentence
4.17 The Parole Board will continue
to have responsibility for release of a life sentence prisoner who is subject to a hospital
direction or is transferred to hospital from prison. Whilst detained under powers in the new
legislation, a patient who is subject to a life sentence will be able to apply to the Tribunal for a
review of his or her liability to compulsory care and treatment. If a Tribunal decides that the
criteria for compulsory care and treatment are no longer met, the patient will be returned to
prison. If he or she has served the tariff imposed by the Court, they will be eligible on return to
prison to apply to the Parole Board for release.
Discharge of restricted patients from hospital and provisions
for recall
4.18 The Tribunal hearing an
application from a restricted patient will be able to make a discharge subject to conditions, as
in the 1983 Act. If the Tribunal concludes that it is no longer appropriate for the patient to be
liable to compulsory care and treatment, it will be required to order absolute discharge.
4.19 The Tribunal might conclude,
on the basis of a proposed care plan, that the criteria for continuing liability to care and
treatment under compulsory powers are met, but that detention for treatment in hospital is not
appropriate. In these circumstances the Tribunal could order discharge from hospital
conditional on compliance with the care plan. The issues to be considered by the Tribunal
would be similar to those for making a care and treatment order in the community (see
paragraphs 3.22, 3.23). Conditions of discharge will include supervision by social and
psychiatric supervisors, who will be required to report regularly to the Home Secretary.
4.20 The Home Secretary will retain
the power of recall to hospital as in the 1983 Act. The grounds for recall will be that:
- the patient continues to suffer from a mental disorder within the meaning of the new
legislation; and,
- the patient is failing to co-operate with the care plan stipulated as a condition of
discharge; and/or,
- the patient's continued presence in the community poses a risk of serious harm to others;
and/or,
- the patient requires care and treatment that cannot be provided safely or effectively in the
community.
4.21 A patient who is subject to
conditional discharge will have the right to apply to the Tribunal for review of liability to
continuing compulsory care and treatment or liability to compulsory recall under the new
legislation. As now, on the basis of evidence from the clinical team and/or independent
experts, the Home Secretary or the Tribunal will be able to discharge the patient absolutely
from compulsory powers.
4.22 A lawyer with experience of
sentencing in the Higher Courts will chair a Mental Health Tribunal hearing an application or
reference of a restricted patient. This is essential to preserving the confidence of the
sentencing Court in the efficacy of powers for compulsory care and treatment as an alternative
to a prison sentence.
Provision of information to victims of mentally disordered
offenders
4.23 There was strong support in the
responses to the Green Paper, Reform of the Mental Health Act 19838,
for the proposal that more information should be provided to the victims of offenders given a
Mental Health Act disposal by the courts rather than a prison sentence.
4.24 The Government is committed
to improving the level of service provided to victims generally and in particular to giving proper
recognition to the needs of victims of mentally disordered offenders. The new legislation will
contain provisions to allow victims of mentally disordered offenders to be given appropriate
information about the offender's detention and discharge. Where the Tribunal is considering
discharge, we aim to enable victims to make representations to the Tribunal about discharge
conditions that relate to contact with them or their family. These provisions will be aimed at
providing broader parity of treatment between the victims of mentally disordered offenders and
other offenders.
4.25 The provisions will relate to the
victims of offenders who have committed serious violent or sexual offences and who are
detained in hospital for care and treatment. They will also relate to the victim of an offender
who received a prison sentence from the court but has subsequently been transferred to
hospital under the new legislation and remains detained in hospital as a civil patient on expiry
of his prison sentence.
8 Reform of the
Mental Health Act 1983. Proposals for Consultation CM.4480. TSO.Back
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