Report on the Review of the Mental Health (Scotland) Act 1984

Executive Summary

OFFENDERS WITH MENTAL DISORDER

The legislative framework

136. The Mental Health (Scotland) Act 1984 and the Criminal Procedure (Scotland) Act 1995 contain a complex framework for dealing with mentally disordered persons who come before the criminal courts. Consideration should be given to consolidating the relevant provisions of the Criminal Procedure (Scotland) Act 1995 within the new Mental Health Act.

Unconvicted persons with mental disorder

137. It is possible for mentally disordered persons awaiting trial on a criminal charge to be committed to hospital. However, the law is not entirely clear as to when they can be treated without consent, or about when remanded prisoners can be transferred for assessment. It should be possible for an accused person to be committed to hospital for assessment on the basis of a single medical recommendation. Thereafter, the provisions should broadly reflect those for detention under civil proceedings.

138. Where a person is acquitted of a criminal charge, and the court has received recommendations that would have entitled it to make a hospital order on conviction, and it appears to the court that an emergency detention of the person may be required, the court should be able to order the detention of the person in a place of safety for a period of up to six hours to allow examination by a medical practitioner.

Convicted offenders with mental disorder

139. The current range of disposals available to the court for convicted offenders is generally adequate, though there is evidence that the necessary services to support the range of disposals are not always in place.

140. Improvements are needed in the system of assessment prior to disposal. The court should receive a report from a mental health officer in a criminal case before making any mental health disposal that currently requires the evidence of two medical practitioners. The court should also be entitled to require further evidence from a chartered clinical psychologist in appropriate cases.

141. It is important that a full assessment of the patient's mental condition and associated risk is made in serious cases. Where a hospital direction or restriction order is in prospect, the responsible medical officer should either recommend an interim hospital order, to allow time for a full assessment to be made, or indicate why such a recommendation is not appropriate.

142. Hospital directions allow a convicted offender to receive a prison sentence, but to be sent to hospital for treatment for mental disorder, and returned to prison once treatment in hospital is no longer required. They may be particularly appropriate when the connection is not clear between an offender's mental disorder and the crime they committed, or where alleviating the mental disorder will not reduce the risk that the offender will commit further crimes. The current statutory criteria for hospital directions and associated guidance should be clarified, to encourage their use in appropriate situations.

143. Prisoners should have the right to appeal against a transfer to hospital for treatment for a mental disorder, or the refusal to authorise such a transfer.

144. It should be possible for convicted offenders to receive community orders. Before making such an order the court should receive advice from a mental health tribunal.

High risk patients

145. The MacLean Committee made proposals for the sentencing disposals for, and future management and treatment of 'serious violent and sexual offenders who may present a continuing danger to the public'. This included proposals concerning mentally disordered offenders. The relevant recommendations of the MacLean Report could readily be incorporated into the proposed framework for a new Mental Health Act.

146. Scottish Ministers should no longer have a role in relation to the management and discharge of restricted patients. Instead, the Parole Board, sitting as a Restricted Patients Review Board, should take over the responsibility of Ministers for decisions concerning discharge.

147. The Risk Management Authority, if established as proposed by the MacLean Report, should be given responsibility for those aspects of Ministers' responsibility for restricted patients which are currently delegated to officials. The Authority should ensure that adequate arrangements are in place for restricted patients subject to conditional discharge, and issue guidance on best practice in managing such patients.

148. The mental health tribunal should take the place of the sheriff court in hearing any appeal against compulsion brought by a restricted patient. For such cases the tribunal should be chaired by a sheriff.

149. The criteria for admission to the State Hospital should be updated. Patients should have a right of appeal to a tribunal, seeking to be transferred from the State Hospital, or a medium secure facility, to conditions of lower security.

The Mental Health (Public Safety and Appeals) (Scotland) Act 1999

150. The Mental Health (Public Safety and Appeals) (Scotland) Act 1999 was passed following a successful appeal for absolute discharge by a restricted patient. It introduced, as an interim measure, a new 'public safety' test to decisions concerning the release of restricted patients.

151. This provision should be repealed as unnecessary in the light of the recommendations for reform in this report and those of the MacLean Committee, including improved assessment of risk, more appropriate use of hospital directions and interim hospital orders, and new sentences for high risk offenders. Transitional arrangements may be necessary for a small group of high risk patients already detained under current legislation.

Insanity and diminished responsibility

152. The Scottish Law Commission should be invited to review the special defences of insanity, insanity in bar of trial and diminished responsibility.

153. The range of disposals available to a court in relation to a person charged with murder and acquitted by reason of insanity should be extended to be the same as for persons charged with other offences who are acquitted on that basis.

Appropriate adults

154. 'Appropriate adult' schemes assist in ensuring that the needs of mentally disordered persons who come into contact with the police are recognised.

155. The Scottish Executive should commission research investigating the effectiveness of the current schemes. In future, the Executive should consider the possibility of formalising the appropriate adult scheme on a statutory basis.

156. A comprehensive training strategy should be put in place for police officers on dealing with members of the public who have a mental disorder, and the use of the police powers under mental health law.

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