Mental Health and Criminal Law

Mental Health is a complicated subject. Conditions are not simple to diagnose, doctors can often disagree on which disorder a person is suffering from, or may even disagree as to whether they have a mental health condition at all.

Those with suffering from diagnosed mental disorders may have an array of specific requirements in court on top of those of the typical defendant. That is if they are even considered mentally well enough to stand trial at all, or if the Crown Prosecution Service (CPS) deems it is in the public interest to charge them.

Diversion

Our initial approach when representing a defendant with mental health issues is to seek diversion away from the court process wherever possible, a proactive approach with the police and CPS can often avoid prosecution and more swift access any necessary medical help that an accused person requires.

How do Courts approach Defendants with Mental Health Problems?

Sentencing defendants who appear to be suffering from mental health problems is a very difficult exercise. The Sentencing Council recently published a draft guideline for a general approach to sentencing defendants who are suffering from mental health problems.

This guideline is currently open for consultation. The thought is that it will make sentencing easier and more consistent amongst defendants who suffer from mental illness.

It will only be applicable to some mental health conditions, including schizophrenia, PTSD, bipolar disorder, autistic spectrum disorders, learning difficulties and dementia.

Although the guideline is still at the consultation stage there is much that we can already utilise to assist those we defend.

What Sentences are Available?

In circumstances where a person is not well enough to stand trial, “unfit to plead”, a hearing goes ahead to establish whether they committed the act; but this is not a conventional trial with a “guilty” or “not guilty” outcome.

If they have committed the act, or are found guilty in the usual way, there are a number of mental health-specific sentencing options available to the Judge under the Mental Health Act 1983.

Hospital Order

A Judge must be satisfied, based on the evidence of two doctors, that this is the appropriate order, and that appropriate treatment is available.

The order is for an initial period of six months but can be extended for a further six and then annually. An individual can be discharged from the hospital by their doctor, hospital manager, or First-Tier Tribunal (Mental Health).

Restriction Order 

This is a type of order that attaches to a Hospital Order, requires at least one doctor to give live evidence, and can only be made if it is required to protect the public.

Restriction orders restrict how a person can be discharged for a specified period, and they can be made indefinitely.

In most cases, only the Secretary of State can discharge an individual under a Restriction Order. There is still a limited right of review in the First-Tier Tribunal (Mental Health).

Hospital and Limitation Directions

Otherwise referred to as “Hybrid Orders” these are a conventional prison sentence, with a direction that the sentence is served in hospital rather than prison. These can only be made in cases where a person is over 21.

If a person’s health improves and they are discharged before the end of the prison term, they are transferred back to prison to serve the rest of their sentence.

If they complete the “sentence”, they remain in hospital until they are discharged, as with the terms of a regular Hospital Order.

Numerous other factors weigh into whether any of these orders can or should be made.

Can Someone Still be Sent to Prison?

Yes. A Judge is not compelled to make any of these orders where a defendant suffers from mental health problems and is able to pass an ordinary prison or another sentence.

In the case of insanity or unfitness to plead, the Judge is required to use a mental health sentence or give an absolute discharge.

How we can assist

If you need specialist advice, then get in touch with our Criminal or mental Health Team on 01612492700 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. At all stages, we can access specialist medical advice to ensure the appropriate outcome.