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

Chapter 26

CONVICTED OFFENDERS WITH MENTAL DISORDER

Assessment of disposals

1. This chapter discusses the range of disposals available to the Courts in respect of a convicted offender who has a mental disorder. We are of the view that there is, in general, an adequate range of disposals available in respect of mentally disordered offenders, although we did receive evidence that the necessary services to support the range of disposals were not always in place. In particular, there would appear to be a lack of suitable facilities for young people with mental disorders who commit offences, and female offenders who manifest self-harming behaviour. (We make recommendations regarding secure services for children and young people in Chapter 18).

2. There are also problems in ensuring that the appropriate disposal is selected in a particular case. Evidence to the Committee highlighted the tension between the need of the criminal justice system for clear disposals, selected at or shortly after conviction; and the nature of psychiatric diagnoses, which are of necessity often provisional, and subject to change in the light of new evidence.

3. It was also said to us in evidence that courts did not necessarily always have access to all the appropriate information, to assist them in deciding whether or not a particular mental health disposal was appropriate. At present, when a hospital order is under consideration in a criminal case, two medical recommendations are required, and the person must fulfil the normal criteria for detention. A mental health officer (MHO) is not, however, required to give a report³. The same applies for other mental health disposals, including hospital directions.

4. We believe that it is as important to have input from specialist social workers in the case of those mentally disordered persons for whom a hospital order is being considered, as it is for a detention under civil procedures. We therefore recommend that there should always be a report from an MHO where a mental health disposal is being considered in a criminal case.

5. The State Hospitals Board suggested that courts should be more inclined to call for reports from other disciplines such as psychology to inform disposal decisions, particularly in relation to risk. The British Psychological Society also supported greater use of psychologists in relation to mental health disposals.

6. We do not believe it would be necessary to have a report from a psychologist in every case. However, there are cases where it may be particularly useful, for example, where the offender has a learning disability or mental disorder related to a head injury. As the Act stands, such a report can be considered, but is not required, and cannot substitute for the two medical opinions which must be given. This may tend to devalue a valuable source of expert advice. On the other hand, we would wish to retain the requirement for two medical recommendations, which is consistent with the requirements for long term compulsion under civil proceedings.

7. It was suggested by the Royal College of Psychiatrists and Greater Glasgow Primary Care NHS Trust that greater use of deferred sentencing would provide more opportunity for multi-disciplinary assessment and discussion. We agree that this would, in many cases, be a sensible course of action, which would not appear to require legislative change.

8. Voluntary sector respondents, such as the Scottish Association for Mental Health (SAMH) and ENABLE, felt there was a need for awareness training on mental health and learning disability amongst those working in criminal justice.

9. We discuss the report of the MacLean Committee in the following chapter. However, we note in this context that the MacLean Committee recommended that all agencies operating in the criminal justice system should ensure that professionals who evaluate risk, or make decisions based on risk (including the judiciary) are appropriately trained⁴. We endorse this recommendation, in respect of those who deal with offenders with mental disorders.

Remand for inquiry into mental condition

10. Under s200 of the Criminal Procedure (Scotland) Act 1995 (the CPSA), there is a power to remand a convicted person in custody, or on bail to hospital for enquiry into his or her mental condition before passing sentence. The maximum period of remand is three weeks, but this is renewable by the court. Our main concern about this is the time limit for an appeal against the order, which is currently 24 hours. It was suggested to us, and we agree, that this may be totally unrealistic where a person is possibly suffering from a mental disorder, notwithstanding the relatively short duration of the authorised period of remand. Where a person has been remanded to hospital, we believe that an appeal should be competent at any time during the period of remand.

11. We have discussed in Chapter 25 the issue of compulsory treatment for prisoners remanded under s52 of the Criminal Procedure (Scotland) Act. The same issues arise in relation to s200, and we believe the same provisions should be made to allow treatment on a compulsory basis, subject to the normal Mental Health Act protection for detained patients, and a requirement for consent by either the patient or a second medical practiioner with appropriate expertise.

Hospital orders

12. Section 58 of the CPSA provides that where a person is convicted of an offence which is punishable by imprisonment, the court may make a hospital order. (This does not apply where a person is convicted of murder, where the only available sentence is life imprisonment, although it is possible for the prisoner thereafter to be transferred to hospital if appropriate.)

13. The hospital order effectively means that the convicted person is transferred to hospital, and is detained on a similar basis to a patient detained under Part V of the Mental Health (Scotland) Act 1984⁵. Before making such an order, the judge must be satisfied that the grounds set out in s17(1) of the 1984 Act (i.e. the criteria for civil detention) apply to the patient, on the basis of the written or oral evidence of two medical practitioners, one of whom must be approved as having special experience in the diagnosis or treatment of mental disorder. The patient can subsequently be discharged by the responsible medical officer (RMO) or the Mental Welfare Commission, or by the sheriff on appeal. Unlike detention under civil procedures, the nearest relative cannot initiate a discharge. The order requires to be renewed on the same basis as detention under Part V of the 1984 Act, namely after six months, 12 months and annually thereafter.

14. Where a hospital order is made, this may be combined with a restriction order⁶. The effect of this is that the normal provisions regarding renewal of detention orders do not apply, and neither the RMO nor the Mental Welfare Commission can discharge the patient. The control of restricted patients is essentially in the hands of Scottish Ministers, who must authorise any leave of absence or transfer of the patient, and have the power to discharge the patient, either absolutely or subject to conditions. Patients can appeal to the sheriff seeking discharge. We discuss restriction orders in Chapter 27.

15. We propose that, as now, hospital orders without restrictions should operate on the same basis as detention under the civil procedures of the Mental Health Act. The recommendations we make in Chapters 5-11 of this report regarding compulsory treatment would apply, including the criteria for making an order, the protection of the patient during the order, and the role of the tribunal in considering appeals against the continuation of the order.

16. We have given particular consideration to the question of whether a hospital order should continue to be available for offenders with a primary diagnosis of personality disorder.

17. In England the Inquiry into Ashworth Hospital⁷ recommended that hospital orders should not be available for individuals suffering from personality disorder. A number of respondents to our consultations argued that hospital orders were unsuitable for this group. Because the likelihood of a benefit from treatment is doubtful, mental health services might be required to discharge offenders when the level of risk had not reduced, or keep such offenders in hospital, without a clear treatment plan.

18. We take the view that a hospital order should not normally be considered suitable for a person with a primary diagnosis of personality disorder. Where hospital treatment is felt to be appropriate, a hospital direction or transfer direction should be used.

19. We do not, however, recommend that a hospital order be explicitly ruled out for this group. As now, the disposal would depend on medical recommendations, and we note that virtually no offenders with a primary diagnosis of personality disorder have received hospital orders in recent years. We have concluded that the matter should be left to the discretion of the medical and social work professionals, and the courts, to allow for the rare cases where such a disposal may be appropriate.

20. We recommend above that MHOs should have a formal role in the consideration of mental health disposals, including hospital orders. Otherwise, we have received little evidence suggesting that substantial revision is required to the legislation concerning hospital orders which do not involve restriction orders.

Interim hospital orders

21. An interim hospital order can be imposed on persons convicted of an imprisonable offence (other than murder). This can be done where the court is satisfied (after considering evidence from two medical practitioners) that the offender is suffering from mental disorder; that it may be appropriate for a hospital order to be made, and that the specified hospital may be the State Hospital. It allows the person to be held in hospital for up to 12 months, although the order must be renewed after 12 weeks and, thereafter, every 28 days⁸.

22. Where a person's mental disorder is thought to be complex, the interim hospital order allows for an extensive period of assessment prior to final disposal. The maximum duration of an interim hospital order was extended from six to 12 months in 1997. The orders appear to have been used more frequently in recent years. Figures from the Mental Welfare Commission Annual Reports show an increase in such orders from 16 in 1994/5 to 49 in 1998/9.

23. In our second Consultation, we set out our provisional view that, for serious offences, interim hospital orders should be recommended in preference to hospital orders, except in cases where the diagnosis is clearly one of an uncomplicated and treatable mental illness. This proposal received general support.

24. The MacLean Committee felt that an interim hospital order was particularly useful for the group of potentially high risk offenders with which it was concerned, and noted that some of the high profile cases concerning serious offenders with personality disorders involved a change to the diagnosis after the imposition of a hospital order. An interim hospital order might avoid this, and would allow for a detailed risk assessment. The Committee therefore recommended that, 'where a psychiatric report in respect of a person convicted of a serious violent or sexual offence recommends the imposition of a hospital order with restrictions, the psychiatrist shall be required to address in the report the question of why an interim hospital order is not appropriate'⁹.

25. An interim hospital order can currently only be imposed when there is reason to suppose that the final disposal might be to the State Hospital- although the interim order need not be to the State Hospital. Presumably this was intended to restrict interim hospital orders to potentially high-risk cases.

26. We accept that there is reason to restrict interim hospital orders to the more difficult and serious cases. The present criteria for an interim hospital order are, in other respects, less stringent than for civil detention, since all that is required are

• the presence of mental disorder and
• the possibility that this meets the criteria for a hospital order.

It would be wrong, therefore, to allow interim hospital orders to be available in all cases, since this could lead to a person who did not meet the criteria for civil detention, and whose offence was not serious, being detained in hospital for up to 12 months, prior to a further criminal disposal.

27. Particularly with the proposed development of medium secure services, it could well be the case that people who commit serious offences, and whose cases require thorough assessment, may not be sent to the State Hospital. We therefore propose that the criteria for an interim hospital order be amended to be linked, not to the likelihood of the State Hospital being the final disposal, but to the likelihood that a restriction order be imposed.

28. We also consider that the criteria for the interim order should be amended to reflect the possibility that a hospital direction, rather than a hospital order, be appropriate. It is likely that interim hospital orders will be particularly relevant for the cases where a hospital direction is under consideration. (We deal with hospital directions in paragraphs 30-40 below.)

29. On a practical point, the MacLean Committee felt that the requirement to renew an interim hospital order every 28 days was unnecessarily bureaucratic and burdensome, and recommended that, for high risk offenders, the period should be extended to 90 days¹⁰. The same suggestion was made to us by the Mental Welfare Commission in respect of interim hospital orders generally, and we agree with it.

Hospital directions

30. Mental health disposals such as hospital orders are intended to remove a mentally disordered offender from the criminal justice arena, and into the care of mental health services. Other than in cases where 'insanity' is established (see Chapter 29), a mentally disordered offender has been found to be legally responsible for his or her criminal behaviour. Nevertheless, once in the mental health arena, questions of punishment and deterrence are not relevant. This has long been accepted as a humane and justifiable approach. Difficulty arises where the connection between the mental disorder and the crime is not totally clear, or where alleviating the mental disorder may not alleviate the risk that the offender may commit further crimes. Hospital directions are intended to provide a possible solution, by allowing the court both to give an offender a prison sentence and at the same time to ensure that hospital treatment is available.

31. This disposal was introduced in 1997, and is available in relation to offenders convicted on indictment (i.e. more serious cases, heard by the High Court or a sheriff and jury). Section 59A of the 1995 Act provides that, in addition to any sentence of imprisonment a court may impose (including a life sentence for murder), the court may authorise the convicted person's admission to and detention in hospital. Before making a hospital direction, the court must be satisfied that the person meets the criteria for detention under Part V of the 1984 Act, on the same basis as if the court were considering a hospital order.

32. The effect of a hospital direction is that the offender will be transferred to and detained in hospital for so long as the criteria for mental health detention continue to apply¹¹. During the period in hospital, the patient's status is similar to that of a patient subject to a hospital order with restrictions. (We discuss this further in Chapter 27). Should the offender cease to meet detention criteria, for example because he or she has substantially recovered from the mental disorder, he or she is not released, but is transferred to prison to serve out any unexpired portion of the prison sentence (with time spent in hospital counted as time served).

33. Scottish Ministers decide on transfer from hospital back to prison, and on issues such as leave of absence. There is an appeal to the sheriff in relation to decisions by Ministers concerning absolute or conditional discharge¹². Should the sheriff determine that the offender should be absolutely discharged, Ministers must transfer the patient back to prison to serve out the sentence. If the sheriff recommends conditional discharge, Ministers can decide whether hospital or prison is more appropriate.

34. A patient subject to a hospital direction, who continues to be detainable in terms of the Mental Health Act beyond the expiry of his or her prison sentence, may continue to be detained in hospital, effectively on the same basis as a patient detained under civil law. The procedure is for the RMO and another medical practitioner to submit reports to the hospital managers prior to discharge¹³. We make recommendations regarding this process at paragraphs 55-58.

35. To date, hospital directions have only been ordered in a handful of cases. They were initially controversial, and many psychiatrists and patients groups argued that it was a retrograde step to sentence to prison people who required hospital treatment. However, our consultation, and recent research, suggests that views have changed. There would appear to be a greater acceptance that hospital directions may be of value in certain cases.

36. In responses to our first Consultation, local authorities and health care trusts endorsed the use of hospital directions, and said that they were not used enough. Against that, the Scottish Association for Mental Health said that they opposed the directions in principle, as confusing issues of culpability and treatment. The Law Society felt that their use should be restricted to offenders with personality disorder.

37. We believe that there is a place for hospital directions, particularly in situations where

• there is not considered to be a strong association between the offender's mental disorder and the offence, and so punishment for the offence is appropriate, despite the current need for treatment, or
• the alleviation of those aspects of the person's mental state which are likely to respond to treatment may not substantially reduce the extent to which the offender presents a risk to the public.

38. This may not amount to a large number of cases. For offenders who require hospital admission because of a mental illness which is strongly linked to their offending behaviour, and which is likely to respond to treatment, hospital orders would continue to be appropriate. In contrast, for example, those who are found to have an anti-social personality disorder without any other mental disorder, would be likely to continue to receive penal disposals, rather than be placed into the mental health system.

39. One reason which has been cited for the lack of use of hospital directions is the fact that the criteria for recommending a hospital direction are identical to those of a hospital order. Furthermore, the guidance from the Scottish Office states that 'a psychiatrist may not recommend a hospital direction as it is attached to a custodial sentence'¹⁴. The intention is that the psychiatrist should only advise that the offender meets the grounds for detention in hospital. It is for the court to decide whether such admission should be additional to, or instead of, a penal disposal. Yet, without any statutory or other guidance as to what circumstances might justify a hospital direction, or the benefit of expert advice, it is difficult to see how the court can identify when it is the best disposal.

40. We proposed in our second Consultation that the criteria should be clarified, and distinguished from those for hospital orders, and that the current guidance should be revised. These proposals were generally supported, although the Royal College of Psychiatrists and the State Hospitals Board felt it should not be the role of the psychiatrist to recommend something which should lead to a custodial sentence. We accept this point, and believe that, if the criteria are appropriately clarified, it should be possible for psychiatrists to give evidence which assists the court, without encroaching on the sentencing role.

Guardianship

41. Under s58 of the CPSA, it is possible for a convicted person to be placed under guardianship, in terms of ss36-52 of the 1984 Act, if the judge is satisfied that the criteria for guardianship in s36 are met. As with hospital orders, two medical reports are required. In addition, an MHO must give evidence, and the court must be satisfied that the local authority or other named guardian is willing to receive the person into guardianship.

42. This power is relatively rarely used. Mental Welfare Commission statistics show that there were five such guardianship orders in the year 1998-1999 and four in 1999-2000. This may be because the powers of the guardian are limited, and enforcement can be difficult if the person subject to guardianship is not prepared to comply with the order. When the relevant parts of the Adults with Incapacity (Scotland) Act 2000 are implemented in April 2002, guardianship under the Mental Health Act will be abolished. Instead, the court will have the options of making an order for welfare guardianship under the Adults with Incapacity Act, with the guardian being the local authority or such other specified person as may be approved by the local authority, or of making an intervention order under that Act¹⁵.

43. We imagine the guardianship order will still only be used to a limited extent in criminal cases. However, it is a useful addition to the range of disposals, which we believe should be retained.

Probation with a condition of treatment

44. For mentally disordered offenders whose situation does not merit imprisonment or detention, it is possible under s230 of the CPSA to impose a probation order with a requirement of treatment. The court must be satisfied, on the evidence of a medical practitioner approved as having special experience in the diagnosis or treatment of mental disorder, that the offender's mental disorder requires and is susceptible to treatment, but is not such as to warrant a hospital order. Such a probation order includes a requirement that the offender shall submit to treatment by or under the direction of a medical practitioner or chartered psychologist with a view to the improvement of the offender's medical condition. Treatment may be on an in-patient or out-patient basis. Although probation orders generally can last up to three years, the requirement to accept treatment can last no longer than 12 months.

45. If the offender does not comply with the treatment requirement, he or she can be returned to court, and be fined or re-sentenced, or the order can be varied. Refusal to comply with treatment (including refusal to accept medication) will not constitute a failure to comply with the order if the court is of the opinion that the refusal was reasonable, having regard to all the circumstances.

46. Such evidence as we received on probation with a requirement of treatment suggested that it sometimes worked well. It was suggested that it should be possible for the order to extend beyond 12 months, perhaps to three years to tie in with the maximum period of a probation order. This would be consistent with supervision and treatment orders, which can be imposed where the disposal is based on a finding of insanity. We believe that this would be reasonable, and would allow a longer period of sustained intervention, perhaps as a preferable alternative to hospital admission.

47. One forensic service which we visited commented that they were sometimes asked to assist offenders who had been made subject to a probation condition that they attend that service, but who in fact would not be suitable. This is not only unhelpful to the service, but may be unfair to the offender, who may breach the order if unable to meet the conditions of the service.

Community orders

48. We set out in Chapter 6 our proposals for a new form of community order, which would allow a mentally disordered person to receive treatment on a compulsory basis in the community, rather than being required to be detained in hospital. We believe that such an order may be appropriate for some mentally disordered offenders, and should be an available option. Such a disposal would be based on approval by a tribunal of a plan of care, setting out how the necessary care and treatment will be delivered.

49. We considered whether the criminal court should receive evidence of the proposed plan of care and consider whether a community order is appropriate. However, should our recommendation for a new tribunal be accepted, this would be an area of the law with which the courts would not be directly familiar. We therefore believe that a better solution, should the criminal court consider a community order might be appropriate, would be for the court to remit the case to a mental health tribunal for consideration.

50. The tribunal would consider whether the criteria for such an order were met and whether, in the circumstances, it would be appropriate to make the order. It would then report back to the court, which would decide whether or not to confirm the order, should a community order have been recommended, or to make some other disposal, should the tribunal decide not to recommend a community order, or the court not be satisfied that the recommended order would be appropriate.

Transfer from prison to hospital

51. It is possible for a person who is already serving a prison sentence to be transferred to hospital, by means of a transfer direction¹⁶. The power to make such a direction is vested in Scottish Ministers, who must be satisfied that the patient meets the detention criteria set out in s17 of the 1984 Act, having received evidence from two medical practitioners, one of whom must be approved as having special experience in the diagnosis and treatment of mental disorder.

52. Ministers can also impose a restriction direction on patients transferred to hospital under a transfer direction. This has a similar effect for a transferred prisoner as a restriction order has on a person given a hospital order. We deal with this further in Chapter 27 (paragraphs 92-94).

53. Prisoners transferred to hospital have a right of appeal to the sheriff against the decision of Scottish Ministers to transfer them¹⁷, but not a decision to refuse a transfer. Under our proposals, the new mental health tribunal would be the appropriate body to consider such an appeal. So far as we can ascertain, Ministers will almost always accede to a transfer request if medical evidence supports it. Nevertheless, they are not obliged to do so. We believe that, where there is medical evidence that a transfer is appropriate, it is wrong that a mentally disordered person should have no right of appeal against a determination by Ministers that he or she must stay in prison rather than be treated in hospital.

54. The time limit for an appeal against the making of a transfer direction is one month. We received evidence from the State Hospital suggesting that people transferred to the State Hospital should have 10 weeks to appeal. Clearly, prisoners being transferred to hospital because they have developed a significant mental disorder are in a vulnerable position, and may well find it difficult to exercise their rights of appeal in the early period of the transfer. We therefore believe that the proposal of the State Hospital should be implemented, and should extend to all transferred prisoners. (We discuss the issues of appeals against placement in the State Hospital further in Chapter 27( paragraphs 79-91)).

55. Where an offender who still has part of the sentence to serve, has been transferred to hospital, but no longer meets the criteria for detention under the Mental Health Act, s71A of the 1984 Act provides that Scottish Ministers may return the offender to prison to complete the sentence. We believe that these arrangements are appropriate.

56. Under s74 (9) and (10) of the 1984 Act, the RMO can continue detention of a transferred prisoner who is subject to a restriction direction, beyond the date at which the prisoner would be due to be released from prison. The procedure is for the RMO to submit two medical reports to the hospital managers and the Mental Welfare Commission. The effect is that the patient is detained beyond the release date as if he or she had been made subject to long term detention under the civil procedures in the 1984 Act, but without there having been any prior approval by the sheriff. The same procedure operates in relation to hospital directions.

57. The Act is not wholly clear as to whether a prisoner subject to a transfer direction without a restriction direction remains subject to detention beyond the expiry of the sentence, on the same basis as a patient detained under civil procedure. On one interpretation, detention continues without any further formalities being observed.

58. We believe it is inappropriate that a person who is no longer subject to a prison sentence should be detained on a long-term basis without the approval of a tribunal.

Treatment in prison

59. There are significant numbers of offenders in prison who have mental disorders. We took oral evidence on the operation of the arrangements for transfer between prison and hospital from both the Scottish Prison Service and the State Hospital. Both felt the arrangements worked reasonably well for the most part, although the State Hospital commented on a lack of agreement in some cases between the Scottish Executive, prisons and the State Hospital, about whether an offender was ready to be returned to prison.

60. Where a prisoner develops an acute mental illness, we believe that he or she should be transferred to hospital. A question arises, nevertheless, about prisoners whose mental disorder may be kept under reasonable control by medication, but who may not require the degree of specialist care provided in hospital. Should it be possible to require that they accept medication while in prison? At the moment, the prison has no power to compel a prisoner to take medication. If the prisoner refuses to do so, nothing can be done until the prisoner's mental state has deteriorated to the extent that he or she meets the criteria for transfer to hospital.

61. There are also prisoners who, prior to imprisonment, were subject to detention under the Mental Health Act. Section 32 of the Act provides that such prisoners are treated for the first six months as if on unauthorised leave of absence during the time in prison. This means that, within 28 days of release from prison, the offender can be returned to hospital. Where a person is in prison for over six months, the mental health detention falls. During the period of imprisonment, the provisions in Part X of the 1984 Act do not apply, and so the prisoner cannot be required to accept treatment without consent.

62. The Prison Service expressed reservations about the suggestion that prisoners might be compelled to accept medication in prison. They felt that prisons could not provide, and should not try to provide, specialist mental health care, and it was not clear how compulsory treatment would fit with Prison Rules, since it would be inappropriate to punish the prisoner for non-compliance. However, they accepted that, for patients who were subject to a requirement to accept treatment (e.g. under a possible community order), and who were prepared to accept treatment, the situation might be manageable.

63. We accept that any kind of enforced medication in prison would be wrong. As we say in relation to community orders (Chapter 6) forcible treatment should only be carried out in an appropriate clinical setting. We considered whether it should be possible for community orders with conditions of treatment to continue in force during a period of imprisonment. However, on balance, we see little benefit in this. The framework of care within which the community order would be delivered could not be replicated in prison. Furthermore, in the custodial environment, we doubt whether the distinction between compulsory treatment (which is acceptable) and forcible treatment (which is not) could realistically be maintained. We therefore make no recommendations on this point.

64. As with detention at present, we propose that a community order should remain in force on release from prison, where the time spent in custody is less than six months.

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