Forensic Mental Health Act Sections and the Criminal Justice System
This area is one of the most complex and misunderstood areas of the Mental Health Act due to the number of sections and rules that apply to each of them.
When charged with an offence by the Police…
When an individual is charged with an offence by the police, they are usually bailed until their court hearing. There would be a requirement to attend Court at a certain date (often attached with several conditions). If bail is not granted by the police: the court hearing takes place at the earliest possible time.
If an individual is suspected to have a mental disorder, or have difficulty in their understanding of questions or their answers, PACE guidelines should be used. This means that if an individual is detained: an ‘appropriate adult’ should be informed and asked to attend the police station.
The police send their information to the Crown Prosecution Service (CPS) who then decide if the prosecution should continue. The CPS continue prosecution if the public interest outweigh any other concerns.
If the police are concerned regarding the mental health of a person they have found in a public place, they may detain him/her under a Section 136 (for 72 hours. The individual would then be assessed under the Mental Health Act and if necessary, admitted to hospital either formally (under sections 2, 3 or 4 usually) or informally (voluntarily).
After the first hearing, the individual can be bailed into the community (with certain conditions) or remanded into custody depending on the severity of the offence, amongst other factors.
If the matter is relatively minor (a 'summary offence'), then the trial will take place at the magistrates' court.
The most serious offences ('indictable-only offences') will be tried in the Crown Court.
The Magistrates court will consider the case and under normal circumstances bail is granted. If there are any concerns (such as the need for a medical report) and there are concerns over risk, the individual may be remanded into custody.
Before the Trial…
Magistrates or Crown Court can choose to remand an individual to hospital for assessment of their mental health for a period of 28 days, up to a maximum of 12 weeks under a Section 35. The purpose of this would be to provide the court with a report on the individual’s mental disorder.
Crown Court can remand to hospital for treatment under Section 36 lasting 28 days and renewable up to 12 weeks in total. This is in practice rarely used and up to March 2007, there were only sixteen recorded cases of its use.
A magistrates court has no power to make a restriction order. If the court is satisfied that the conditions exist in which it could make a hospital order under Section 37, but also feels that a restriction order should be added, it can commit an offender to the Crown Court under Section 43. The magistrates court may direst that the offender be detained in a hospital under Section 44 pending the hearing of the case by the Crown Court.
If an individual is placed on remand (i.e. unsentenced) to prison (into custody), a Section 48 could be considered to transfer to receive urgent treatment in hospital. The Ministry of Justice (MOJ) has to agree and issue the transfer direction, with a bed required within 14 days of the secretary of state approving its use.
A restriction order under Section 49 can be added, by the Ministry of Justice to the Section 48, creating a section 48/49, is mandatory for cases where criminal proceedings are involved. This is usually added because of if there are significant concerns over public safety, and will imply restrictions for leave, transfer and discharge, which the MOJ would oversee.
Fitness to Plead
If Crown Court finds unfitness to plead, there will be a 'trial of facts' to decide whether the individual committed the accused act. If they find that the individual did commit the act, a hospital order (section 37 with or without restrictions), a 'supervision order' or 'absolute discharge' may be sought. A supervision order allows an individual to receive support and treatment, usually with the aide of a social worker. Absolute discharge may be considered if the offence is relatively trivial and there is no further action required.
At Sentencing..
After the court completes its case, and sentences the individual, if they have a mental disorder a Section 37 ‘hospital or guardianship order’ may be considered.
Little use has been made of guardianship orders (probably due to the availability of supervision orders) but their purpose is primarily to ensure the offender receives care and protection rather than medical treatment in the community, although the guardian has the power to require the offender to live at a specific place, to attend specific places at specified times for medical treatment, occupation, education or training, and to require access to the offender to be given at the place where the offender is living to any doctor, approved social worker or other person specified by the guardian. the order would last initially for six months but the Responsible Clinician (RC) can also renew the section at the end of the first six months, again at the end of a second period of six months, and at yearly intervals thereafter.
In very serious cases where a hospital order has been given, the Crown Court may add a 'restriction order' (section 41). This can be added to a hospital order and has no time limit.
If a restriction is not added the order would last initially for six months but the Responsible Clinician (RC) can also renew the section at the end of the first six months, again at the end of a second period of six months, and at yearly intervals thereafter.
If a restriction is added the RC would require the permission of the Ministry of Justice to allow leave or discharge from hospital, and the hospital managers have no power to discharge. Discharge could occur either absolutely or conditionally.
If the individual is discharged conditionally, he/she is then subjected to compulsory aftercare: which involves both social and medical supervision.
If Crown Court convicts the individual, but delays sentencing for an assessment to be carried out as to whether a full hospital order under Section 37 is appropriate, an interim hospital order could be applied (Section 38). This lasts for 12 weeks initially and is renewable for further periods of up to 28 days for a total of not more than 12 months. If necessary this can be converted to a hospital order at review.
A Crown Court can also impose a hospital direction under Section 45A. This section empowers the court, when imposing a prison sentence on a mentally disordered offender convicted of an offence other than one of which the sentence is fixed by law, to give a direction for immediate admission to, and detention in, a specified hospital together with a direction that they be subject to the special restrictions set out in Section 41 (a limitation direction). The RC will have the option of seeking the patient’s transfer to prison at any time before their release date if no further treatment is necessary or is likely to be beneficial.
After Sentencing..
If a sentenced prisoner requires transfer from prison to hospital, a section 47 (transfer section) can be used. In practice, The Ministry of Justice, usually adds a 'restriction direction' (section 49), which prevents the hospital from discharging the individual.
A sentenced prisoner can be detained in hospital for longer than the individual’s sentence tariff. If the prisoner was given a fixed term sentence, the Section 49 restriction is removed after the expiry of the sentence: and the Section is converted ‘notionally’ to a Section 37.
This area is one of the most complex and misunderstood areas of the Mental Health Act due to the number of sections and rules that apply to each of them.
When charged with an offence by the Police…
When an individual is charged with an offence by the police, they are usually bailed until their court hearing. There would be a requirement to attend Court at a certain date (often attached with several conditions). If bail is not granted by the police: the court hearing takes place at the earliest possible time.
If an individual is suspected to have a mental disorder, or have difficulty in their understanding of questions or their answers, PACE guidelines should be used. This means that if an individual is detained: an ‘appropriate adult’ should be informed and asked to attend the police station.
The police send their information to the Crown Prosecution Service (CPS) who then decide if the prosecution should continue. The CPS continue prosecution if the public interest outweigh any other concerns.
If the police are concerned regarding the mental health of a person they have found in a public place, they may detain him/her under a Section 136 (for 72 hours. The individual would then be assessed under the Mental Health Act and if necessary, admitted to hospital either formally (under sections 2, 3 or 4 usually) or informally (voluntarily).
After the first hearing, the individual can be bailed into the community (with certain conditions) or remanded into custody depending on the severity of the offence, amongst other factors.
If the matter is relatively minor (a 'summary offence'), then the trial will take place at the magistrates' court.
The most serious offences ('indictable-only offences') will be tried in the Crown Court.
The Magistrates court will consider the case and under normal circumstances bail is granted. If there are any concerns (such as the need for a medical report) and there are concerns over risk, the individual may be remanded into custody.
Before the Trial…
Magistrates or Crown Court can choose to remand an individual to hospital for assessment of their mental health for a period of 28 days, up to a maximum of 12 weeks under a Section 35. The purpose of this would be to provide the court with a report on the individual’s mental disorder.
Crown Court can remand to hospital for treatment under Section 36 lasting 28 days and renewable up to 12 weeks in total. This is in practice rarely used and up to March 2007, there were only sixteen recorded cases of its use.
A magistrates court has no power to make a restriction order. If the court is satisfied that the conditions exist in which it could make a hospital order under Section 37, but also feels that a restriction order should be added, it can commit an offender to the Crown Court under Section 43. The magistrates court may direst that the offender be detained in a hospital under Section 44 pending the hearing of the case by the Crown Court.
If an individual is placed on remand (i.e. unsentenced) to prison (into custody), a Section 48 could be considered to transfer to receive urgent treatment in hospital. The Ministry of Justice (MOJ) has to agree and issue the transfer direction, with a bed required within 14 days of the secretary of state approving its use.
A restriction order under Section 49 can be added, by the Ministry of Justice to the Section 48, creating a section 48/49, is mandatory for cases where criminal proceedings are involved. This is usually added because of if there are significant concerns over public safety, and will imply restrictions for leave, transfer and discharge, which the MOJ would oversee.
Fitness to Plead
If Crown Court finds unfitness to plead, there will be a 'trial of facts' to decide whether the individual committed the accused act. If they find that the individual did commit the act, a hospital order (section 37 with or without restrictions), a 'supervision order' or 'absolute discharge' may be sought. A supervision order allows an individual to receive support and treatment, usually with the aide of a social worker. Absolute discharge may be considered if the offence is relatively trivial and there is no further action required.
At Sentencing..
After the court completes its case, and sentences the individual, if they have a mental disorder a Section 37 ‘hospital or guardianship order’ may be considered.
Little use has been made of guardianship orders (probably due to the availability of supervision orders) but their purpose is primarily to ensure the offender receives care and protection rather than medical treatment in the community, although the guardian has the power to require the offender to live at a specific place, to attend specific places at specified times for medical treatment, occupation, education or training, and to require access to the offender to be given at the place where the offender is living to any doctor, approved social worker or other person specified by the guardian. the order would last initially for six months but the Responsible Clinician (RC) can also renew the section at the end of the first six months, again at the end of a second period of six months, and at yearly intervals thereafter.
In very serious cases where a hospital order has been given, the Crown Court may add a 'restriction order' (section 41). This can be added to a hospital order and has no time limit.
If a restriction is not added the order would last initially for six months but the Responsible Clinician (RC) can also renew the section at the end of the first six months, again at the end of a second period of six months, and at yearly intervals thereafter.
If a restriction is added the RC would require the permission of the Ministry of Justice to allow leave or discharge from hospital, and the hospital managers have no power to discharge. Discharge could occur either absolutely or conditionally.
If the individual is discharged conditionally, he/she is then subjected to compulsory aftercare: which involves both social and medical supervision.
If Crown Court convicts the individual, but delays sentencing for an assessment to be carried out as to whether a full hospital order under Section 37 is appropriate, an interim hospital order could be applied (Section 38). This lasts for 12 weeks initially and is renewable for further periods of up to 28 days for a total of not more than 12 months. If necessary this can be converted to a hospital order at review.
A Crown Court can also impose a hospital direction under Section 45A. This section empowers the court, when imposing a prison sentence on a mentally disordered offender convicted of an offence other than one of which the sentence is fixed by law, to give a direction for immediate admission to, and detention in, a specified hospital together with a direction that they be subject to the special restrictions set out in Section 41 (a limitation direction). The RC will have the option of seeking the patient’s transfer to prison at any time before their release date if no further treatment is necessary or is likely to be beneficial.
After Sentencing..
If a sentenced prisoner requires transfer from prison to hospital, a section 47 (transfer section) can be used. In practice, The Ministry of Justice, usually adds a 'restriction direction' (section 49), which prevents the hospital from discharging the individual.
A sentenced prisoner can be detained in hospital for longer than the individual’s sentence tariff. If the prisoner was given a fixed term sentence, the Section 49 restriction is removed after the expiry of the sentence: and the Section is converted ‘notionally’ to a Section 37.