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

Section 6 OFFENDERS WITH MENTAL DISORDER

Chapter 24

THE LEGISLATIVE FRAMEWORK

Introduction

1. The 1984 Act, read alongside the Criminal Procedure (Scotland) Act 1995, contains a complex framework for dealing with mentally disordered persons who come before the criminal courts. This builds on the provisions for the detention of patients under the civil law, discussed earlier in this report. We deal with it in the following way.

2. Firstly, in this Chapter, we discuss the broad relationship between the legislation concerning mental health and that concerning criminal procedure. We then consider in sequence the various stages at which mental health legislation affects those before the criminal courts.

3. Chapter 25 deals with those who have not been convicted and considers diversion from the criminal justice system, remand to mental health services, and those who are acquitted of criminal charges.

4. In Chapter 26 we consider convicted offenders with mental disorders, dealing in turn with the assessment of the appropriate disposal; the arrangements for investigation into the suitability of a mental health disposal; hospital based disposals, and community based disposals. We also consider issues affecting prisoners, namely the arrangements for transfer to hospital, and the possibility of compulsory treatment in prison.

5. Chapter 27 is concerned with patients who present a high risk to public safety. On this issue, our work overlaps with that of the MacLean Committee on Serious Violent and Sexual Offenders, and we discuss briefly their report. We then go on to consider the legislation concerning 'restricted patients', including the role of Ministers in decisions affecting this group, and the arrangements for conditional discharge. The chapter also discusses the criteria for admission to the State Hospital.

6. In Chapter 28 we go on to consider and make recommendations on the Mental Health (Public Safety and Appeals) (Scotland) Act 1999.

7. The subsequent chapters deal with some specific areas of concern, outwith the general framework for mental health disposals in criminal cases. Chapter 29 discusses the pleas of insanity and diminished responsibility, and in particular how such defences are defined in law. Chapter 30 considers the operation of 'appropriate adult' schemes.

The interaction of the Criminal Procedure (Scotland) Act and the 1984 Act

Part VI of the Criminal Procedure (Scotland) Act 1995

8. Part VI of the 1984 Act contains provisions relating to the detention of patients concerned in criminal proceedings, and the transfer of prisoners to hospital. It sets out the effect of various disposals, including hospital orders, restriction orders and hospital directions, and the appeal rights of patients. However, the circumstances in which a person may receive any of these disposals are set out separately, in Part VI of the Criminal Procedure (Scotland) Act 1995 ('the CPSA'). In order to receive a hospital order, or other mental health disposal, it is normally a requirement that the person be detainable under the 1984 Act, so the CPSA frequently cross-refers to the 1984 Act.

9. For example, s58 of the CPSA states that for a hospital order to be made, the court must be satisfied, on the evidence of two medical practitioners, that the grounds set out in s17(1) of the 1984 Act apply in relation to the offender. Conversely, s62 of the 1984 Act sets out the effect of a restriction order, but it is necessary to read s59 of the CPSA to find out the grounds on which the court may impose such an order.

10. It has been pointed out to us that to divide the statutory provision for mentally disordered offenders in this way is confusing. We considered whether there was any way in which the legislation could be set out in a way which would be easier to follow. The options appear to be

• To consolidate provision for mentally disordered offenders in mental health legislation
• To consolidate such provision in criminal procedure legislation
• To duplicate the provision in both pieces of legislation.

11. We consulted on these options in our second Consultation. Our provisional preference was to consolidate the legislation within the Mental Health Act (as was in fact the case when the Mental Health (Scotland) Act 1960 was passed). Arguably, this would make the law easier to follow for doctors, social workers, and other non-legal specialists who have to work with mental health law. It may be less advantageous for lawyers operating in the criminal courts, but they might be expected to be able to read between different statutes as necessary.

12. Furthermore, the general aim of the legislation is that mentally disordered offenders receive a mental health disposal on the basis of similar criteria to those who are subject to compulsion under civil mental health law, and remain subject to compulsion while the civil criteria continue to apply (except for those subject to additional restrictions on the basis of the risk they present).

13. Our consultation elicited relatively few responses on this issue. Of those who did respond, most were in favour of consolidating provision for mentally disordered offenders into the Mental Health Act. However, there were significant dissenting voices. The Mental Welfare Commission argued that there were advantages in dealing with mentally disordered offenders under the CPSA, as this promotes a more integrated response within the criminal justice system. The Faculty of Advocates considered that the CPSA provided a comprehensive procedural code and there would be disadvantages in removing provisions from it. The Law Society of Scotland regarded the current distinction as logical and workable, avoiding both inappropriate criminalisation and decriminalisation.

14. We accept that there is a basis for the way in which the law is presently separated: that the CPSA regulates the nature of disposals made by a criminal court, and that one of these disposals is to place a person under the provisions of the 1984 Act. However, we remain of the view that the division is confusing. We would be content to see the legislation on mentally disordered offenders consolidated in the Mental Health Act. The current provisions in Part VI of the CPSA do not seem to be inextricably entwined with the more general aspects of criminal procedure, and contain more cross references to the 1984 Act than to other parts of the CPSA.

15. So far as the third option, of duplicating the provisions in both statutes is concerned, this would be inconsistent with normal legislative practice, and we have concluded that repeating the legislation in different places could create more confusion than it would prevent.

16. However, the primary problem is perhaps not the Act in which the legislation is placed, but how best to ensure that people with an interest have access to all the relevant legislation, and can see how it interrelates. This might best be achieved by the production of a single document for the use of practitioners, patients, and other interested parties, setting out the provisions and how they interact. This could perhaps build on the existing booklet produced by the Mental Welfare Commission, entitled 'In Your Interests'.

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