Mentally disordered offenders

1    Introduction

This article aims to provide an overview of the options open to the criminal courts in dealing with persons who are, or may be, suffering from mental disorder. Substantial changes were introduced by the Mental Health (Care and Treatment) (Scotland) Act 2003 which came into effect on 5 October 2005. Many of the changes are by way of amendment to the Criminal Procedure (Scotland) Act 1995; references below are to the 1995 Act unless otherwise specified. Detailed guidance can be found in the code of practice published by the Scottish Executive.

2    What is mental disorder?

Section 328 of the 2003 Act defines “mental disorder” as any mental illness, personality disorder or learning disability however caused or manifested. A person is not mentally disordered by reason only of any of the following:

• sexual orientation;
• sexual deviancy;
• trans-sexualism;
• transvestism;
• dependence on or use of alcohol or drugs; or
• behaviour that causes or is likely to cause harassment, alarm or distress to any other person;  or
• by acting as no prudent person would act (section 328(2)).

“Mental disorder” is thus much wider than the common law concepts of unfitness to plead, insanity and diminished responsibility, none of which is altered by the 2003 Act. Unfitness to plead, which if established amounts to a plea in bar of trial, arises where the offender has “mental alienation of some kind which prevents him giving the instructions which a sane man would give for his defence, or from following the evidence as a sane man would follow it, and instructing his counsel as the case goes along upon any point that arises” (HMA v Wilson 1942 JC 75 at p79).

The special defence of insanity was defined by a full bench in Brennan v HMA 1977 SC 38 at p45: “In short, insanity in our law requires proof of total alienation of reason in relation to the act charged as the result of mental illness, mental disease or defect or unsoundness of mind”.

The modern definition of diminished responsibility is found in Galbraith v HMA 2001 SLT 953 at p966: “In essence, the judge must decide whether there is evidence that, at the relevant time, the accused was suffering from an abnormality of mind which substantially impaired the ability of the accused, as compared with a normal person, to determine or control his acts.”

One could thus have a mental disorder as defined by the 2003 Act, yet still be both sane and fit to plead, and fully responsible in law for one’s actions. 

3    Pre-trial

Section 52(1) imposes a general duty on the prosecutor, where it appears to him in any court before which a person is charged that the person may be suffering from mental disorder, to bring before the court such evidence as may be available of that person’s mental condition. This general duty is unchanged by the 2003 Act. This should be read in conjunction with section 52A, which provides for the remit from the district court to the sheriff court of any person charged with an offence punishable by imprisonment who appears to have a mental disorder (and accordingly, references below to imprisonment are to imprisonment by the High Court or sheriff court only).

The 2003 Act introduces two new orders available to the court at the pre-trial stage: the assessment order and the treatment order.

The assessment order (sections 52B-52J)

An assessment order authorises detention in hospital so that the accused’s mental condition can be fully assessed there. It can be sought by the prosecutor, by the Scottish Ministers if the accused is already in custody, or can be made by the court ex proprio motu.

Prior to seeking an assessment order the prosecutor (or as appropriate, the Scottish Ministers or court) will require an initial examination of the accused by a medical practitioner whose report will then be available to the court when the assessment order is sought. If the initial examination supports it an application for an assessment order can then be made to the court orally or in writing. In many cases an examination will have been carried out while the accused was in police custody, the police or procurator fiscal having been alerted to the potential mental disorder by the accused’s behaviour in custody, the nature of the offence or a known psychiatric history. The code of practice states that when assessing a person for his first court appearance the medical practitioner’s report should, at a minimum, address whether the person is fit to plead, whether an assessment order is recommended and whether the person should be admitted to hospital informally or under civil procedures if charges are dropped.

The court may make an assessment order if satisfied on the evidence of one medical practitioner that there are reasonable grounds for believing:

• the accused has a mental disorder;
• it is necessary to detain him in hospital to assess whether the conditions in section 52D(7) are met (see below); and
• if the order were not made there would be a significant risk to his health, safety or welfare or a significant risk to the safety of any other person (section 52D(3)(a)(i-iii)).

The court must be satisfied that the hospital proposed by the medical practitioner is suitable for the assessment and able to admit the accused within seven days of the order being made (section 52D(3)(b) and (c)), and that it would not be reasonably practicable to carry out the assessment unless an order were made (section 52D(3)(d)). It must also be satisfied that the order is appropriate, having regard to all the circumstances (including the nature of the offence) and any alternative means of dealing with the accused (section 52D(2)(b) and (4)).

An assessment order authorises detention in hospital for 28 days. Within this period the responsible medical officer (RMO) allocated to the accused by the hospital must report back to the court on whether the section 52D(7) conditions are met. These are that:

• the offender has a mental disorder;
• medical treatment which would be likely to prevent the mental disorder worsening, or alleviate its symptoms or effects, is available for the accused; and
• if he were not provided with such treatment there would be a significant risk to his health, safety or welfare, or to the safety of any other person.

When it makes an assessment order the court will fix a hearing 28 days hence for its review. Provided the initial examination shows the accused is sane and fit to plead he can, in summary proceedings, be called on to plead to the complaint at his first appearance, and intermediate and trial diets will then be fixed. If he is not sane and fit to plead the case can be continued without plea for 28 days, on cause shown, to call along with the review of the assessment order when the matter can be revisited. In solemn proceedings an accused person is not called on to plead at his first appearance, so will simply be committed for trial in the usual way.

The order can be extended on one occasion only, for up to seven days, if the court is satisfied that further time for assessment is necessary (section 52G(4)).

Treatment order (sections 52K-52S)

A treatment order authorises hospital detention for treatment (including medication, psychological or social intervention) for mental disorder. Treatment includes compulsory treatment in accordance with Part 16 of the 2003 Act. Unlike an assessment order, which lasts only last 28 days, a treatment order may last for the whole period up to the time when the accused is sentenced. It can be sought by the prosecutor, by the Scottish Ministers if the accused is already in custody, or can be made by the court ex proprio motu.

The recommendation of two medical practitioners is required (section 52M(2)(a)). At least one of them must be employed by the hospital to be specified in the order (section 61(1A)).

The court may make a treatment order if satisfied that the conditions in section 52D(7) are met (section 52M(2)(a), (3)(a)). It must also be satisfied that the hospital proposed is suitable and able to admit the offender within seven days of the order being made (section 52M(3)(b) and (c)), and that the order is appropriate (section 52M(2)(b)).

An assessment order is not a necessary precursor to the making of a treatment order, though in most cases an assessment order would be sought first, particularly as it can be made on the recommendation of only one doctor. If following assessment the RMO considers recommending a treatment order, he should arrange for a second doctor to examine and report on the offender. Where however a person is clearly mentally disordered and requires treatment in hospital, and where two recommendations are available, it may be appropriate to apply for a treatment order directly.

Provision exists for revoking or varying the order if the RMO is satisfied that the section 52D(7) conditions are no longer met, or that there has been a change of circumstances which makes continued detention in hospital by virtue of the order no longer appropriate (section 52Q). A treatment order made prior to conviction ceases to have effect on the making of a "relevant disposal" – liberation of the accused in due course of law, desertion of summary proceedings pro loco et tempore or simpliciter or of solemn proceedings simpliciter, or the acquittal or conviction of the accused (sections 52B, 52R(2)).

The period during which an accused is detained in hospital under an assessment or treatment order counts towards the computation of the 80, 110 and 140 day periods specified in section 65 for solemn proceedings, and the 40 day period in section 147 for summary proceedings (section 52T).

4    Post-conviction, pre-sentence

Assessment orders and treatment orders remain available to allow further assessment before the court makes its ultimate disposal. However, they cannot be sought by the prosecutor, who has no locus after conviction. A treatment order made post-conviction ceases to have effect on the deferral of sentence under section 200(1), on the making of one of the orders specified in section 52R(3) – essentially, any other mental health disposal – or on the imposition of a sentence.

The following options are also available:

Interim compulsion order (sections 53-53D)

This replaces the interim hospital order and may be made where the offender has been convicted of an offence punishable by imprisonment, other than one for which the sentence is fixed by law (i.e. murder) (section 53(1)). Unlike a compulsion order proper it allows assessment and treatment in hospital only, not in the community. It enables a longer period of in-patient assessment before a final disposal is made, and is intended for mentally disordered offenders convicted of serious offences and/or appearing to pose a considerable risk to themselves or others. Compulsory medical treatment may be given.

The recommendation of two medical practitioners is required, at least one of whom must be employed by the hospital to be specified in the order (sections 53(2)(a), 61(1A)).

To make this order the court must be satisfied that the offender has a mental disorder (section 53(2)(a)(i)). It must have reasonable grounds for believing this mental disorder is such that it would be appropriate to make, as a final disposal, either a compulsion order with a restriction order, or a hospital direction (section 53(3)(a)(ii) and (6)). However, at the end of the order the court may still make any disposal it sees fit (mental health or penal). If an interim compulsion order is not made, the offender can subsequently be made the subject of a compulsion order with a restriction order only if the court is satisfied that it was not appropriate first to make an interim compulsion order (section 59(2A)).

The court must also have reasonable grounds for believing the conditions in section 53(5) are likely to be met, namely:

• medical treatment which would be likely to prevent the mental disorder worsening, or alleviate any of its symptoms or effects, is available for the offender;
• if the offender were not provided with such medical treatment there would be a significant risk to his health, safety or welfare, or to the safety of any other person; and
• the making of the order is necessary.

It must be satisfied that the hospital proposed is suitable and able to admit the offender within seven days (section 53(3)(b) and (c)), that it would not be reasonably practicable to assess whether the section 53(5) conditions are met unless an order were made (section 53(3)(d)); and that the order is appropriate (section 53(2)(b)).

The order is for an initial period of 12 weeks, but can be extended on a report by the RMO for periods not exceeding 12 weeks, up to a maximum period of 12 months.

Unlike the former interim hospital order, an interim compulsion order can be made even where it is not thought the offender may require detention in a state hospital. A principle of the 2003 Act is that persons discharging functions thereunder (such as medical practitioners making recommendations to the court) must do so in the way that involves the minimum restriction on the patient’s freedom necessary in the circumstances (code of practice, page 15). An interim compulsion order may therefore authorise detention in the state hospital only if the court is satisfied the offender requires detention in hospital under conditions of special security and that such conditions can be provided only in a state hospital (section 53(7)).

Remand for inquiry into mental condition

The court retains the option under section 200(2) of remanding the offender for the purpose of inquiry into his mental condition, either in custody or on bail. Alternatively, where it is satisfied on the evidence of one medical practitioner that the offender appears to be suffering from a mental disorder and could be admitted to a hospital that is suitable for his detention, it may make an order committing him to that hospital. This may be for such period(s) as the court thinks fit to enable a medical examination and report to be made, no single period exceeding three weeks.

As assessment orders and treatment orders are available post-conviction, it would now be expected that section 200 would only be used to remand a person on bail for reports on an outpatient basis (code of practice, page 25).

5    Final disposal

In addition to the usual sentencing options, various mental health disposals are available. The code of practice (page 124) gives this guidance to medical practitioners:

• the disposal recommended by them should be the least restrictive option necessary in the circumstances
• a hospital disposal should only be recommended where a community disposal is not appropriate due to the significant risk the person poses to his own health, safety or welfare or to others.
• a hospital disposal should be to a hospital or unit of no higher security than is necessary, considering the risk the person poses to him or others.

Compulsion order with/without restriction order (sections 57A and 59)

The compulsion order is available following conviction for an offence punishable by imprisonment, other than one for which the sentence is fixed by law (section 57A(1)(a)). Unlike its predecessor the hospital order, it may authorise compulsory treatment either in hospital or the community. The measures which can be specified in the order therefore include requirements on the offender to attend at specified or directed times and places to receive treatment or community care; to reside at a specified place (which might include a care home, if that home is willing to take him); and to allow home visits by persons responsible for providing him with treatment or care (see section 57A(8) and (9)).

The evidence of two medical practitioners is required, one of whom must be employed by the hospital to be specified in the order (sections 57A(2)(a), 61(1A)). The court must be satisfied that:

• the offender has a mental disorder;
• medical treatment which would be likely to prevent the mental disorder worsening or alleviate any of its symptoms or effects is available;
• if the offender were not provided with such treatment there would be a significant risk to his health, safety or welfare, or to the safety of any other person; and
• the making of a compulsion order is necessary (section 57A(3)).

It must also be satisfied that it is appropriate to make the order (section 57A(2)(b)).

If the medical practitioners consider that detention in hospital is required, they should provide the court with reasons why compulsory powers in the community are not appropriate instead (code of practice, page 129). A compulsion order can authorise detention in hospital only if the court is satisfied that the necessary treatment can only be provided if the offender is detained in hospital, and that the proposed hospital can admit him within seven days and is suitable for the treatment (section 57A(5)). A fortiori, it can authorise detention in a state hospital only if the offender requires to be detained in hospital under conditions of special security and such conditions can be provided only in a state hospital (section 57A(6)).

The order is for an initial period of six months (section 57A(2)) and expires at the end of this period if not renewed. Part 9 of the 2003 Act makes detailed provision for the renewal, variation and revocation of compulsion orders. Very briefly, the first review (2003 Act, section 39) must take place within the two months before the order is due to expire, when the RMO must carry out or make arrangements for a medical examination to establish whether the criteria for a compulsion order continue to apply and whether it is necessary for the order to be renewed. If he considers that the order continues to be necessary it can be renewed for a further six months by the Mental Health Tribunal for Scotland on the RMO’s application. Thereafter it can be renewed annually by the RMO making a determination to that effect under section 152 of the 2003 Act: he need not re-apply to the tribunal, which does however have a duty to review extensions in certain circumstances (section 165)).

Special provision is made for those offenders who may pose a particular risk of serious harm to others. Where the court makes a compulsion order authorising detention in hospital and it appears to the court, having regard to

• the nature of the offence;
• the antecedents of the offender; and
• the risk that as a result of his mental disorder he would commit offences if set at large,

that it is necessary for the protection of the public from serious harm so to do, it may in addition make a restriction order under section 59. This allows the offender to be detained in hospital without limit of time (section 57A(7)).

To make a restriction order the court must hear oral evidence from one of the medical practitioners recommending the accompanying compulsion order (section 59(2)).

The provisions of Part 9 of the 2003 Act relating to the duration and renewal of compulsion orders do not apply if a restriction order is made: instead, the offender is detained in hospital until he is conditionally or absolutely discharged upon the direction of the tribunal under section 193 of the 2003 Act. Only the tribunal has power to revoke the order and allow the offender’s discharge, a power previously exercised by the Scottish Ministers. Part 10 of the 2003 Act makes detailed provision for the review of offenders subject to restriction orders and for the making of referrals to the tribunal.

Hospital direction (section 59A)

In addition to a sentence of imprisonment the court may also make a hospital direction. This allows the offender to be given treatment (including compulsory treatment) for mental disorder in hospital, then be transferred to prison to complete his sentence. The period during which he is subject to the hospital direction counts towards his sentence.

A hospital direction may be made where a person is convicted on indictment of an offence punishable by imprisonment (section 59A(1)). There is no requirement that the offence be one for which the sentence is not fixed by law, so it is available following conviction for murder.

The evidence of two medical practitioners is required, at least one of whom must be employed by the hospital to be specified in the order (sections 59A(2), 61(1A)). The code of practice (page 146) states that prior to making a hospital direction, assessment of the offender should be undertaken during an interim compulsion order, except where this is clearly not appropriate.

The court may make a hospital direction where satisfied that:

• the offender has a mental disorder;
• medical treatment is available which would be likely to prevent the disorder worsening or alleviate any of its symptoms or effects;
• if the offender were not provided with such treatment there would be a significant risk to his health, safety or welfare, or to the safety of any other person; and
• the making of the hospital direction is necessary (section 59A(2), (3)).

It must also be satisfied that the hospital proposed is suitable and able to admit the offender within seven days (section 59A(4)), and that the order is appropriate (section 59A(2)(b)).

Again, detention in a state hospital can be authorised only where it appears the offender requires to be detained there under conditions of special security and such conditions can be provided only in a state hospital (section 59A(6)).

Clearly an offender may meet the criteria for both a compulsion order with a restriction order and a hospital direction. The code (page 149) states that where a hospital direction is under consideration, the key issue is the extent of the link between the specified mental disorder and the index offence and/or the risk of further offending. If the offender appears to pose a substantial risk but his mental disorder is not a major factor determining this risk, or where treating the mental disorder is unlikely to reduce this risk significantly, it would be expected that a hospital direction would be the appropriate recommendation to make to the court. For a compulsion order with a restriction order to be recommended, on the other hand, it would be expected that there would be a significant link between the specified mental disorder and the offence and/or the future risk posed (page 136).

Other mental health disposals

The court may make a probation order with an additional requirement that the offender submits to treatment by or under the direction of a medical practitioner or chartered psychologist with a view to the improvement of his mental condition (section 230(1)). Prior to the 2003 Act such a probation order could last for a maximum of 12 months; this restriction has been removed, so the treatment requirement can now last for up to three years, the maximum term of a probation order. The court must be satisfied, on the evidence of one approved medical practitioner, that the offender’s mental condition is such that it requires and may be susceptible to treatment, but is not such as to warrant his detention under a compulsion order or (civil) compulsory treatment order. It must also be satisfied on the evidence of the practitioner who will be providing treatment that the treatment is appropriate and that arrangements have been made for that treatment (section 230(3)(a) and (b)).

Guardianship orders are now dealt with by the Adults with Incapacity (Scotland) Act 2000. The order is available where the offender is convicted of an offence punishable by imprisonment (other than one for which the sentence is fixed by law); however, in the case of a person charged summarily in the sheriff court with such an offence, if satisfied that the offender did the act or made the omission charged the court may make the order without convicting him (section 58(3)). It is also available where the accused has been found to be insane (see below).

Under section 58(1A)(a) the court may make the order where satisfied on the evidence of two medical practitioners that the grounds set out in section 58(1)(a) of the 2000 Act apply – that is, that the offender is incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his property, financial affairs or personal welfare, and is likely to continue to be so incapable. It must also be satisfied that no other means provided by the 1995 Act would be sufficient to enable the offender’s interests in his personal welfare to be safeguarded or promoted (section 58(1A)(b)). If the order is made the offender’s personal welfare is placed under the guardianship of the local authority or other approved person as specified. A guardianship order continues in force for three years or such other period (including indefinitely) as the court, on cause shown, may determine (section 58A(5)).

Instead of making a compulsion order or guardianship order the court may make an intervention order, where it considers that it would be appropriate to do so (section 60B). An intervention order is intended to authorise specific one-off measures, in contrast to guardianship which is conceived of as a longer-term measure. Detailed provisions relating to intervention orders, as for guardianship orders, can be found in the 2000 Act.

None of the above three orders authorise the giving of compulsory medical treatment.

Insanity

Section 54(1) applies where insanity is raised as a plea in bar of trial. Where the court is satisfied that the offender is insane so that his trial cannot proceed, or if it has commenced, cannot continue, it must make a finding to that effect and state the reasons for that finding. It must also discharge the trial diet or, as applicable, the first diet or preliminary hearing, if the finding is made at that earlier stage. The evidence of two medical practitioners is required.

Section 54(1) thus recognises that the condition of a mentally disordered person may fluctuate and that an offender who was fit for trial when the trial commenced may become unfit if his condition deteriorates. The corollary of this is that even if a plea in bar of trial is initially unsuccessful, the offender may renew his plea if the case is re-indicted: a finding made with reference to a particular trial would not necessarily be appropriate for a trial held at some later stage (Stewart v HMA (No 2) 1997 SCCR 430).

The court must then hold an examination of facts, at which it examines the available evidence (which might include evidence already heard at an abortive trial) to determine whether it is satisfied beyond reasonable doubt that the offender did the act or made the omission constituting the offence (section 55(1)(a)). It must also determine whether on the balance of probabilities there are no grounds for acquitting him (section 55(1)(b)). Grounds for acquittal include insanity at the time the offence was committed; if acquittal is on this ground the court is directed to state that (section 55(4)).

An examination of facts is to follow, as nearly as possible, the rules of evidence and procedure applicable to a trial (section 55(6)) – although of course there is no jury.

Pending the examination of facts the offender may be remanded in custody or bailed, or made the subject of another new order, the temporary compulsion order (section 54(1)(c)). This replaces the temporary hospital order and may be made where, on the evidence of two medical practitioners, the court is satisfied that:

• the offender has a mental disorder;
• medical treatment which would be likely to prevent the mental disorder worsening, or alleviate any of its symptoms or effects is available; and
• if the offender were not provided with such treatment there would be a significant risk to his health, safety or welfare, or to the safety of any other person (section 54(2A)).

A hospital must also be available for his admission and suitable for his detention (section 54(1)(c)(ii)).

The offender can be given compulsory treatment while subject to the order.

Provision exists for the order to be reviewed and if need be revoked, if circumstances change (section 54(4)).

Section 54(6) deals with insanity as a special defence. It provides that where evidence is brought before the court that the offender was insane at the time of the offence and he is acquitted, the court shall, in proceedings on indictment, direct the jury to find whether the offender was insane at the time and, if so, declare whether he is acquitted on account of insanity (rather than on some other ground, such as self defence). In summary proceedings the trial sheriff makes an equivalent finding.

Whether an offender has been acquitted due to insanity (after trial or following an examination of facts), or the court is satisfied following an examination of facts that the offender committed the offence and there are no grounds for acquittal, the disposals available to the court are listed in section 57. These are: a compulsion order with/without a restriction order, an interim compulsion order, a guardianship order, a supervision and treatment order, or no order.

The supervision and treatment order is unique to insanity procedure. The offender is placed under the supervision of a social worker for a specified period of up to three years, during which time he must comply with the social worker’s instructions and submit to treatment with a view to the improvement of his mental condition (schedule 4, paragraph 1(1)). This may include hospital treatment on a non-resident basis. The order may be made where, on the evidence of two medical practitioners, the court is satisfied that the mental condition is such as requires and may be susceptible to treatment, but not such as to warrant making a compulsion order or a guardianship order. The court must also be satisfied that making such an order is the most suitable means of dealing with the offender (schedule 4, paragraph 2(1)). The order may include requirements as to the offender’s residence, but cannot be used to require him to reside as a resident patient in hospital (schedule 4, paragraph 5(1), (2)).