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

Chapter 25

UNCONVICTED PERSONS WITH MENTAL DISORDER

Introduction

1. There are various stages at which a person who is charged with a criminal offence may be made subject to a mental health disposal. In later chapters, we deal with those who are convicted of an offence or found 'insane'. This chapter deals with the committal to hospital of accused persons who are yet to be tried, or who have been acquitted on grounds other than insanity.

Diversion from prosecution

2. Where it is clear that an accused person is mentally disordered, a trial might not proceed. The Crown may decide that it would be better for the person to be diverted to mental health services, either on an informal or formal basis. If the person were to be detained in hospital at that stage, it would be on the basis of a detention under civil procedures.

3. The issues surrounding diversion out of the criminal justice system prior to conviction would seem to relate primarily to the provision and co-ordination of services, and the sharing of information between agencies, rather than the statutory framework of the Mental Health Act. We understand that these issues have been considered in the review of services for mentally disordered offenders, which has been commissioned by the Scottish Executive and which we assume will be made public. We have, therefore, not addressed these issues in detail.

Untried prisoners

4. Under s52 of the Criminal Procedure (Scotland) Act 1995 ('CPSA'), untried prisoners who are thought to be suffering from mental disorder may be committed to hospital on the written or oral evidence of a single registered medical practitioner. If thereafter the responsible medical officer (RMO) is satisfied that the patient's mental disorder would warrant admission to hospital under Part V of the 1984 Act, the patient may be detained in hospital for the period for which he is remanded.

5. It has been argued that Part X of the 1984 Act, which regulates compulsory treatment, does not apply to such patients, meaning that they cannot be treated for mental disorder without their consent. The Mental Welfare Commission discussed this matter in their Annual Reports for 1996/7¹ and 1997-8². In the earlier Report, it was suggested that prisoners transferred to hospital under s52 were not brought within the scope of Part X of the 1984 Act. Therefore, if treatment without consent were to be given, it might be necessary to detain the person under the civil provisions of the 1984 Act, effectively resulting in a 'double detention'. However, in the subsequent Report, the Commission stated that it had explored further the legal advice it had received, and that the effect of s125(5) of the 1984 Act was that those admitted to hospital under the CPSA fell within the scope of Part X of the 1984 Act. For patients admitted under s52, compulsory treatment for a mental disorder could be given, but probably only after the responsible medical officer was satisfied that the patient met the criteria for detention under Part V of the 1984 Act. Despite this revised advice from the Commission, our consultations suggest that there is still confusion about the position of remanded prisoners with respect to compulsory treatment and we believe the law should be clarified.

6. In our second Consultation, we set out our provisional view that it is wrong that an untried prisoner suffering from mental disorder should be held in hospital without treatment for a lengthy period. While it is possible to detain the person under s18, to have a person subject to two forms of detention at once (s18 detention and remand) seems likely to create practical difficulties. On the other hand, to allow a remand prisoner to be subject to compulsory detention and treatment for up to 110 days, on the basis of a single medical recommendation, would seem to give such prisoners fewer safeguards than other patients, including convicted prisoners given a hospital order (which requires two medical opinions). We therefore proposed that, for remanded prisoners, treatment without consent should require the approval of a second doctor with appropriate expertise.

7. Most of those who responded agreed that it should be possible, with appropriate safeguards, for remanded prisoners to be compulsorily treated for mental disorder. The Faculty of Advocates commented that a prisoner might be entitled to refuse treatment until tried, on the grounds that he or she had a right not to have his or her ability to conduct or instruct a defence compromised, for example by medication. Against this, though, there may well be situations where medication may improve the ability of a mentally ill patient to instruct his or her legal representatives.

8. The British Association of Social Workers (BASW) argued that there should be no discrimination in the way a person receives compulsory treatment, whether detained under the CPSA or mental health legislation. The Scottish Association for Mental Health (SAMH) felt that treatment should not be possible without consent, unless all the safeguards applicable to detained patients applied.

9. There is a strong argument for treating all patients in a consistent way. Taken to its full extent, this would mean admitting remand prisoners to hospital on a similar basis to patients detained under civil mental health law. Under our proposals for civil admission, this would imply that a remand prisoner should not be admitted to hospital and treated compulsorily without the approval of a medical practitioner and a mental health officer. Furthermore, if the detention were to last for more than 28 days, it would require the approval of a second doctor, in addition to authorisation by a tribunal. Treatment without consent would be possible, but after two months, medication would require a second opinion.

10. SAMH argued in their response to our second Consultation that prisoners held on remand who are mentally disordered should be in hospital rather than prison. We are not convinced that this would be appropriate in every case. There could be people with a diagnosis of mental disorder, which is well managed, where there would be no basis for a hospital admission. However, we agree with the general point that there should not be unnecessary obstacles to ensuring that prisoners who require treatment in hospital can receive it. Furthermore, there is a distinction from the position of a mentally disordered person living in the community, in that there is no specific mechanism for a remanded prisoner to be admitted to hospital on a voluntary basis. We are, therefore, satisfied that the approval of one medical practitioner should be all that is required to divert a remand prisoner to hospital, in situations where a hospital place is available for the prisoner.

11. Under s52 (3), the RMO is then required to consider whether the patient meets the criteria for detention under the 1984 Act, and must report his or her findings to the court. If the RMO is satisfied that the patient meets the criteria for detention, the court need take no further action, and the patient will remain in hospital until the expiry of the period of remand. The court needs only to take a decision if the RMO decides that detention is inappropriate.

12. Our first concern with this procedure is that the decision on continued detention is therefore taken by the RMO alone. We feel it would be preferable for the RMO to report to the Court, say within a 28 day period, to advise whether the criteria for admission to hospital are met; and that the formal decision as to whether the detention in hospital should be continued would then be taken by the Court. This would have the benefit of giving remanded prisoners similar protection to patients detained under the civil law.

13. In addition, if it is to be made explicit that treatment can be given to patients on remand without consent, we believe that the protections afforded to patients detained under civil procedure in relation to medical treatment may not be entirely appropriate. In relation to any medication given without consent, the additional opinion of an independent doctor would not be required for two months. The remanded prisoner would not have the benefit of other protections afforded to civil patients, such as the involvement of the mental health officer (MHO) or a second doctor, or the oversight of a care plan by the forum where the detention lasted more than 28 days. While admission to hospital may not be a serious infringement of the rights of a remanded prisoner, (given that the prisoner would otherwise be in prison), compulsory treatment might.

14. We therefore feel that our original proposal (para 6 above) for the involvement of a second doctor with appropriate expertise, was appropriate. We propose that, in addition to the normal protections afforded to detained patients in relation to treatment, there should be a requirement that an independent medical opinion be obtained before medication is administered without consent. This opinion would be from a medical practitioner approved as having special expertise in the treatment of mental disorder (a so called 'section 20 approved' doctor). There would be an exception for emergency treatment, which could be administered on the same basis, and with the same protections, as treatment administered without consent to a patient subject to emergency detention.

15. Otherwise, the protections available to prisoners detained in hospital on this basis would be the same as for patients detained under civil procedures, as set out in Chapter 10. Thus, for example, should the patient be detained for more than two months, and be in receipt of medication without consent, the approval of an independent doctor authorised by the Mental Welfare Commission would be required.

16. Currently, there is no appeal against a decision of a court to admit an accused person on remand to hospital. We considered whether such an appeal should be introduced and decided that it was not necessary. As we have said, any such person would otherwise be in prison, and so there is not the same issue of deprivation of liberty which applies in other cases of compulsory admission to hospital. Our proposal that the court should authorise continuing detention beyond 28 days would, in our view, provide the appropriate level of independent scrutiny.

Untried prisoners-transfer for assessment

17. Under s52(2) of the CPSA, it is possible for a court to send a prisoner to hospital to assess whether his or her mental state justifies detention in hospital. This, however, only applies at the stage that the prisoner comes before the court. If a prisoner is already remanded in custody, s70 of the 1984 Act allows Scottish Ministers to ask the sheriff to order that the prisoner be transferred to hospital, if satisfied that the grounds for admission to hospital under Part V of the 1984 Act are met. The sheriff must receive reports from two medical practitioners. We believe that this power should be retained.

18. It appears, however, that there is a gap in the legislation, in that there is no power to transfer to hospital a prisoner who has already been remanded in custody to assess whether the prisoner's mental state warrants detention. In legislative terms, the provisions of s52(2) of the CPSA are not mirrored in s70 of the 1984 Act. We understand that this is not simply a theoretical problem, but has in fact led to difficulties. In a small number of cases, petitions were made to the Court of Session under the nobile officium, to allow mentally disordered prisoners to be transferred to hospital for assessment.

19. It is clearly undesirable that this power, which is available to the Court of Session to remedy gaps in the law, should be the basis for such transfers. We proposed in our second Consultation that there should be a statutory mechanism to allow remanded prisoners to be transferred to hospital for assessment of their mental state. This received general support, with the Law Society commenting that the loophole in current legislation should be closed as a matter of urgency. We therefore recommend that procedures which are similar to those for prisoners at the commencement of remand should apply to those whose mental disorder manifests itself later.

Acquitted persons with recommendations for mental health disposals.

20. Section 58 of the CPSA allows a court to impose a hospital order on a patient who has been convicted of an imprisonable offence, if the court is satisfied on the written or oral evidence of two medical practitioners (one of whom is s20 approved) that the grounds set out in s17 of the 1984 Act apply in relation to the offender. If the individual is acquitted (unless it is by reason of insanity), it is of course not possible to make a hospital order.

21. It was pointed out to us that, in recommending a hospital order, two medical practitioners have taken the view that the accused person requires detention. If the patient is acquitted, but still requires to be admitted to hospital, there is no basis for such detention to proceed. Should a doctor be present in court at the time of acquittal, the accused person could be detained on an emergency basis under s24 of the 1984 Act, but it will not always be the case that a doctor is present. Thereafter, the person could be lost to services.

22. In our second Consultation, we put forward the proposal that, in such a situation, the court could reconvene immediately as a civil court to consider an application for long term detention. The recommendations for a hospital order could form the basis for this application. Alternatively, the court could be given a transitional power, based on the recommendations for a hospital order, to detain the person until a hearing for civil admission could proceed.

23. Respondents who considered this issue generally supported the introduction of a mechanism to deal with the problem. However, a number of objections were made to the suggestion that the criminal court reconvene to consider the matter as an application for long term detention. Several respondents, including the Mental Welfare Commission and the Faculty of Advocates, felt that the court would not be well placed to consider the merits of the civil application.

24. On further reflection, we agree with this view. We recommend in Chapter 9 that hearings for long-term compulsion be considered by a tribunal, not by a sheriff sitting alone. It would not then be possible for the sheriff or judge hearing a criminal case simply to 'change hats' to consider the issue of detention under the Mental Health Act.

25. We are attracted to an alternative suggestion, supported by the Royal College of Psychiatrists, amongst others, that the court should have the power to initiate detention, to allow for further psychiatric examination and application for further detention as appropriate. This would be consistent with the powers of doctors and the police to detain for a short period in emergency situations. It would only be possible to exercise this power where the court had received psychiatric evidence to the effect that the person met the criteria for long-term compulsion under the Mental Health Act. It would be desirable if, in making reports recommending hospital orders and related mental health disposals, psychiatrists were to state whether, in the event of the accused person not being convicted, it would be appropriate for the court to exercise this power. We go on to recommend in Chapter 26 that an MHO should also be required to provide a report prior to a mental health disposal, and we would anticipate that this should also address the issue of whether such interim detention would be advisable in the event of acquittal.

26. The Royal College of Psychiatrists' proposal was for detention for up to 72 hours. We are not persuaded such a period of detention is necessary. The purpose of the order is simply to ensure that the patient can be held for long enough for at least one medical practitioner (and, also ideally, an MHO) to be summoned to begin the process of civil detention. Given that the court is sitting in 'office hours', we believe that six hours should be adequate for this purpose.

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