Report of the Committee on Serious Violent and Sexual Offenders

CHAPTER 7: HIGH RISK OFFENDERS WITH A MENTAL DISORDER

7.1 We have described above our proposals for the procedure and disposals to be adopted in respect of high risk offenders who do not suffer from a mental disorder. The proposed OLR is designed to recognise and address the issue of risk to public safety. Our Committee recognises that there may be some high risk offenders who, in addition, have a mental disorder of a nature or degree that warrants detention in hospital for medical treatment. We do not think that the proportion of high risk offenders who suffer from such a mental disorder is likely to be large. However this small number of potential high risk offenders is likely to pose particular difficulties in terms of safeguarding the public. In this chapter we therefore make recommendations concerning the assessment by the court of potential high risk offenders with a mental disorder, and the appropriate court disposal.

7.2 Mental disorder is a term defined in the Mental Health (Scotland) Act 1984 and subsequently amended by Section 3 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999. Mental disorder is now defined as 'mental illness (including personality disorder) or mental handicap however caused or manifested'. This definition and indeed the whole issue of mental health legislation are matters currently under review by the Millan Committee. It would not be appropriate for our Committee to make recommendations on the definition of mental disorder since, although the subject impinges on our area of interest, it also extends much beyond it. We have therefore assumed that the definition of mental disorder is that which appears in current mental health legislation.

7.3 We think that in the case of a high risk offender who has a mental disorder, the disorder is likely to be of a complex nature. It is likely that a personality disorder will form part of that mental disorder but it is not necessarily inevitable that it will do so. In clinical terms high risk offenders with a mental disorder are likely to have combinations of mental illness (of a psychotic or organic type), substance abuse disorder, personality disorder, psychosexual disorder and possibly a learning disability. Indeed it is the complexity of the condition that is likely to contribute to the designation of the offender as a high risk offender with a mental disorder.

7.4 There may however be other circumstances in which an offender with a mental disorder comes into the category of a high risk offender. For example, a person may commit a serious offence of a nature that fulfils the criteria for a high risk offender but suffers from a mental disorder in which there appears to be a tenuous or non-existent relationship between the particular mental disorder and the commission of that offence. In such circumstances treatment of the mental disorder may be readily accomplished. However there would still remain a substantial risk to the public by virtue of other contributory factors to the offending behaviour. These would need to be recognised and addressed by the sentence. In those high risk offenders where the mental disorder is solely one of personality disorder we anticipate that the sentence will normally be an OLR rather than a psychiatric disposal. We consider personality disordered offenders further in Section Three.

Current situation

7.5 The current situation with regard to a high risk offender with a mental disorder is that he or she may be dealt with by the court in various ways. First, the court may impose a sentence of imprisonment, during the course of which transfer to hospital would be possible in terms of Sections 71 and 72 of the Mental Health (Scotland) Act 1984. Where the sentence is a determinate one, and where the prisoner is in hospital at the expiry of that sentence, then his/her status becomes that of an ordinary detained patient and he/she is not subject to the regulation of Scottish Ministers. This may be seen as unsatisfactory and failing to provide sufficient protection for the public. At any time, providing there is still a period of imprisonment remaining in the sentence, the patient can be returned to prison in terms of Section 74(2) and continue his/her sentence. Public protection will continue for as long as he/she remains in prison and following release subject to any existing post-release supervision arrangements.

7.6 Second, the court may impose a hospital order with restrictions on discharge. The effect is that the offender is managed exclusively by health services, receiving mandatory treatment in hospital (normally at the State Hospital initially); decisions concerning absolute discharge, conditional discharge or transfer to another hospital rest with Scottish Ministers. Rarely, the restriction order may be terminated by Scottish Ministers, in which case the patient acquires the status of an ordinary detained patient. In any event there is a disadvantage to this disposal in respect of high risk offenders. Where, during the course of the hospital treatment, it is found that there remains a high risk of re-offending even though the mental disorder has been treated or has remitted, there is no mechanism for continued custody other than within a hospital; the treated but high risk patient cannot be transferred to prison.

7.7 Following treatment at the State Hospital most patients are considered either for transfer to a local psychiatric hospital or, rarely, conditional discharge to the community. Both these options may not provide sufficient safeguard for public protection. In such circumstances it is now mandatory for such patients to remain in hospital by virtue of the provisions recently introduced in Section 1 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999. The implication of Section 1 is that discharge (whether conditional or absolute) will not be permitted where continued detention in hospital is necessary 'to protect the public from serious harm'. Such detention is irrespective of the need for medical treatment in hospital. From the perspective of clinical practice, this is an unsatisfactory state of affairs. We think that patients who are detained in hospital should only remain in hospital where there is a requirement for medical treatment as defined in the Mental Health (Scotland) Act 1984.

7.8 A third possibility is that the high risk offender with a mental disorder could currently be made the subject of a hospital direction under Section 59A of the Criminal Procedure (Scotland) Act 1995. This has a number of advantages enabling the offender to receive treatment in hospital and at the same time providing protection for the public. The sentencer passes a prison sentence which currently could be a discretionary life sentence, and at the same time imposes a hospital direction, the effect of which is that the 'sentence' begins by admission to hospital. When treatment is completed, or if the mental disorder is no longer present, then the offender patient is transferred by recommendation of Scottish Ministers to prison to continue his/her sentence. The period of time spent in hospital is recognised as part of the time served. Later in the sentence, should treatment again be required in hospital, then it is possible for the prisoner to be transferred to hospital for further treatment. Protection of the public continues for as long as the offender remains under sentence. Thus only in the case of those offenders who receive a discretionary life sentence together with a hospital direction is lifelong protection of the public provided. In all other cases protection of the public cannot be provided after termination of the prison sentence with the exception of those arrangements that can be made for supervision in the community. At present these may be of limited duration.

Proposal for sentencing

7.9 In the light of the problems described, and in order to maintain public protection, we believe that there is a need for new legislation in respect of the sentencing of high risk offenders who have a mental disorder. The legislation should have certain aims and principles.

7.10 First, the sentencing of high risk offenders with a mental disorder should not be undertaken hastily; early decisions, that are subsequently irreversible, should not be made on the basis of inadequate information. Mental disorders may change in their nature, severity and response to treatment. We think that sentencing procedures should reflect this feature.

7.11 Second, we think that procedure, safeguards and outcome for high risk offenders with a mental disorder should match, as far as is possible, the procedures, safeguards and outcome for high risk offenders who do not have a mental disorder. In particular the measures to safeguard the public should be as stringent as those for ordinary high risk offenders yet medical treatment should be available for the mental disorder in the same way that it is available for other offender patients.

7.12 Third, the essential determinant in ensuring protection of the public should be the assessment, management and containment of risk, rather than the presence of any particular category of mental disorder. It is not possible to make definitive statements that any particular category of mental disorder is one that always carries a high risk while another category invariably does not. There is such a wide variation in this matter that decisions taken with public protection in mind must turn on the issue of risk (and its proper assessment and management) and not on the existence of any particular type of mental disorder.

7.13 We think it is essential that the standards of risk assessment and management should be exactly the same as the standards that we have outlined in relation to non-mentally disordered high risk offenders.

7.14 We have described in Chapters 5 and 6 our new sentencing Order for Lifelong Restriction (OLR) in respect of high risk offenders. This is, in essence, an indefinite sentence imposed on the basis of a substantial risk to the community with regular reviews and a requirement to address the elements that constitute that risk. If such an offender suffers, in addition, from a mental disorder, it seems appropriate that he should also be made the subject of a hospital direction.

7.15 The sentence would begin with admission to, and treatment in, the State Hospital where treatment would be in accordance with normal clinical practice. Any decision to transfer the offender patient to prison should be based on the grounds that medical treatment in hospital is no longer appropriate. For this particular category of offender, we do not think it is necessary that public safety, as we construe that term, is an appropriate determining factor for continued detention in hospital. The offender patient will not in any case be returning to the public at this stage but will be transferred to prison. The arrangements that are made for the management of that offender patient when transferred to prison are a matter for the prison authorities. One of the principal tasks of the SPS is the protection of the public. The safe custody of high risk offenders who have received treatment for mental disorder is essentially no different from that provided for other high risk offenders. We think it would be inappropriate, in the case of high risk offenders in hospital, for consideration of public safety rather than appropriateness of treatment to determine whether they continue to be detained in hospital when there is no possibility of the offender patient at this stage being in contact with the public.

7.16 With regard to decision making on the matter of transfer from hospital to prison, we believe that this is a matter which the Millan Committee may wish to consider. Currently the decision is one for Scottish Ministers and we do not think there are grounds for changing that arrangement solely in relation to these particular offender patients. We think it is important that the plans for the offender's management should be re-evaluated before transfer to prison in order to determine an appropriate location within prison.

7.17 Having described the mandatory disposal for a high risk offender suffering from a mental disorder, we now consider the nature of the assessment required by the court for making that disposal. It is of course a very restrictive disposal. Indeed the combination of indeterminacy of prison sentence and mandatory committal to hospital is probably the most restrictive type of sentence available to Scottish courts. It is therefore proper that is should be reserved solely for those for whom it is intended, and that it should not be imposed unless there has been the fullest type of pre-sentence assessment.

7.18 We recommend that the procedures previously described, whereby the Crown normally initiates the procedure towards the imposition of an OLR by applying to the court for a risk assessment, should also apply in the case of potential high risk offenders with a mental disorder. Where there is reason to suppose that the potential high risk offender may be suffering from a mental disorder then pre-sentence psychiatric reports should be obtained in the normal way. Where these reports indicate that the offender is suffering from a mental disorder and that it may be appropriate for a hospital order to be made, then we suggest that the appropriate disposal, at this stage, would be by way of an interim hospital order for detention in the State Hospital.

7.19 Currently the maximum duration of an interim hospital order is 12 months. We think this provides sufficient time for a full assessment to be made in accordance with the new standards. We do not think this maximum limit requires modification. Currently, however, renewal of the order is necessary every 28 days and we think this is unnecessarily bureaucratic and burdensome. It should be increased to 90 days.

7.20 It has been suggested to us that there may be offenders convicted of a serious violent or sexual offence for whom the high risk offender pre-sentence procedure has not been adopted, and for whom psychiatrists reporting to the court intend to recommend the standard hospital order with restrictions. Where the court follows these recommendations and imposes a hospital and restriction order, the offender, as indicated above, becomes the permanent responsibility of health services, together with social work services in the event of conditional discharge. We have noted (in paragraph 7.7) that in the cases of Reid and Ruddle (both of whom were detained under hospital and restriction orders), the original clinical diagnosis that applied at the time of admission changed during the course of treatment. This had major implications for the appropriateness of continued detention in hospital. We therefore think there needs to be a safeguard whereby reporting psychiatrists who recommend hospital and restriction orders on those convicted of a serious violent or sexual offence should be required first to consider the appropriateness of an interim hospital order (which would enable assessment in a hospital for up to 12 months) before finally making the recommendation of a hospital order with restrictions.

High risk offenders found insane in bar of trial or acquitted on the grounds of insanity

7.21 We recognise that within the small number of mentally disordered offenders who are found insane in bar of trial, or who are acquitted on the ground of insanity, there may be some who may be regarded as high risk offenders. Completely new provisions for the court disposal of people found insane - we use the word in the sense that it appears in legislation but recognise that it has no place in modern psychiatry - were introduced in 1995 and are set out in Sections 54-57 and 62-63 of the Criminal Procedure (Scotland ) Act 1995. In essence the court has flexibility in disposal (except where the charge is one of murder) but is precluded from imposing any sentence of punishment including imprisonment. These disposals were widely welcomed in the criminal justice and mental health fields and we do not consider there are any good reasons for making changes.

7.22 The disposal of a person charged with murder but found insane is automatically by way of hospital and restriction orders - whether or not he/she may be regarded as high risk. It is not within our remit to suggest any change in this matter and it is under consideration by the Millan Committee.

7.23 We believe, however, that the issue of risk should be an important factor in disposing of all other people who are found insane under solemn procedure. Currently, by virtue of section 57(2) of the 1995 Act there are five possible disposals for people found insane in bar of trial or acquitted on the grounds of insanity: hospital order, hospital order with restrictions, guardianship, supervision and treatment order and no order of any kind. There is no opportunity for the court to make an interim hospital order in terms of Section 53 of the 1995 Act. As described earlier, such an interim order provides opportunities to assess both the appropriateness of making a hospital order itself and the degree of risk presented by the mentally disordered offender. We consider that this option should be available to a mentally disordered offender to whom Section 57(2) otherwise applies, so that an assessment of risk can be conducted as we propose for other mentally disordered offenders. Where the insane offender is reasonably considered to come within the category of high risk, then we think that the proper disposal should be by way of a hospital order with restrictions, and the other options in Section 57(2) should not be available to the court. If, after assessment under an interim hospital order, the patient is not regarded as high risk then the current options should continue to be available.

Procedure after an interim hospital order is made

7.24 We now consider procedures following the admission of a high risk offender to the State Hospital under the terms of an interim hospital order. We anticipate that in the period of up to one year in hospital thereafter, assessment of risk will be in accordance with the standards described previously (see Chapters 2 and 3). We recognise that treatment of the mental disorder may be appropriate and that it may be given in accordance with the general approach to consent to treatment and the special provisions of Part X of the Mental Health (Scotland) Act 1984. In any event, at the end of the period of detention under the interim hospital order two decisions should have been reached: first, whether or not the offender fulfils the criteria for a high risk offender, and second, whether or not the offender suffers from a mental disorder such that a hospital order with restrictions is appropriate.

7.25 If neither of the above decisions is positive, then the offender will simply be sentenced by the court in the normal way for that particular offence within the range of sentencing options currently available.

7.26 If the offender is found to be a high risk offender but does not suffer from a mental disorder appropriate for treatment in hospital, then he/she should simply be made the subject of an OLR.

7.27 If the offender is found not to be a high risk offender but he/she has a mental disorder such that he/she should be detained in hospital, then the court may impose a hospital order with restrictions on discharge or a hospital order simpliciter. Where appropriate, the court may impose a hospital direction, or indeed, disregard the medical recommendations and impose a prison or other sentence. These are not matters within our remit. The general requirements for hospital and restriction orders are matters for the consideration of the Millan Committee.

7.28 If the court is satisfied that there are present the criteria for both a high risk offender and mental disorder appropriate for treatment in hospital, then as indicated above the mandatory disposal should be an OLR together with a hospital direction.

7.29 Where a high risk offender is detained in hospital under an OLR with a hospital direction it is likely that a stage will be reached when he/she no longer requires treatment in hospital. Normally we would expect such an offender patient to be transferred, on the authority of Scottish Ministers, to prison. We would expect the Risk Management Authority to have an advisory role in reviewing risk management plans at this stage. If however the offender has served the designated part of his/her sentence, he/she should be entitled to apply to a Designated Life Tribunal for release from custody, as with someone who has received an OLR without a hospital direction.

7.30 When offenders are transferred between prison and hospital the sharing of information is an important component of risk assessment both in prison and in hospital. Our Committee was concerned to hear from a prison governor in England that prisoners with severe mental health problems and/or personality disorders may be transferred to special hospitals, and returned to prison some months later, with no information recorded on their file other than the dates of admission and discharge to and from hospital. We understand that working relationships between the relevant agencies in Scotland are of a better quality. Nevertheless, we consider that there would be benefit in more formalised arrangements between agencies with regard to information sharing.

Discharge and release considerations

7.31 There may be some high risk offenders with a mental disorder for whom it becomes apparent that their future management and care should remain within health and/or social services. This, for example, might require a series of decisions concerning the transfer of the offender patient from one level of secure hospital to another and, eventually, conditional discharge from hospital to the community.

7.32 We anticipate that there may be high risk offenders with mental disorders who achieve conditional discharge from hospital or who are released from prison in accordance with the procedures described above. As with all high risk offenders the standards of supervision and aftercare in the community should be the same as those described in Chapter 9.