Medical disposals

In criminal proceedings psychiatric reports are most commonly sought in order to assist courts in sentencing or disposal. Often the request for a report will be issued after the defendant has been convicted, and the case is adjourned for pre-sentence reports. It will usually be necessary to consider whether a specific medical disposal should be recommended.

The first specific disposal to consider is the hospital order (Section 37 of the Mental Health Act 1983). This is available for defendants who have committed imprisonable offences, and the criteria are broadly similar to those applying to detention under a civil treatment order (Section 3 of the Mental Health Act 1983). In order to make a hospital order, a court must have two medical recommendations that the individual suffers from mental illness, psychopathic disorder, or mental impairment or severe mental impairment of a nature or degree warranting a detention in hospital for treatment. For people with psychopathic disorder or mental impairment there is the additional criterion that treatment is likely to alleviate or prevent a deterioration in their condition.

In serious cases sentenced in the Crown Court, an additional restriction order can be made with a hospital order. The restriction order (Section 41 of the Mental Health Act 1983) imposes restrictions on discharge whereby the authority of the Home Office is needed before the patient can be transferred or discharged from hospital. (Mental health review tribunals also have independent power to discharge restricted patients.) Restriction orders are usually made without limit of time, and when patients are eventually discharged from hospital to the community this is usually a conditional discharge with conditions of supervision.

When there is uncertainty about whether a hospital order will be appropriate and effective, a useful measure is the interim hospital order (Section 38 of the Mental

Health Act 1983) which enables a limited period of admission to hospital (now 12 months maximum) on a trial basis. This may enable a conclusion to be reached about whether to recommend a hospital order. There is also a flexible option of recommending a remand to hospital for an assessment report under Section 35 of the Mental Health Act 1983 before trial or before sentence.

A further medical disposal, currently only available for defendants in the Mental Health Act category of psychopathic disorder, is the hospital direction and limitation direction (colloquially known as the 'hybrid order'). This was introduced as an additional power in the Mental Health Act 1983 (Section 48A) through the enactment of the Crimes (Sentences) Act 1997. In making a hybrid order the court imposes a sentence of imprisonment, and then makes an immediate direction that the offender be detained in hospital. Like the hospital order, the hybrid order requires two medical recommendations and the availability of a hospital bed. The result of the hybrid order is that the patient cannot be discharged by a mental health review tribunal during the period of the prison sentence. However, if the period of imprisonment is determinate (i.e for a fixed term) the long-term option of conditional discharge, with statutory supervision continuing for an indeterminate period, is not available.

The final specific form of medical disposal to mention is the Probation Order with a condition of psychiatric treatment. These orders may last for up to 3 years. Generally it is appropriate to recommend these orders only if there is confidence that the person is likely to co-operate with treatment. In addition it is important to ensure that the probation service is independently recommending that such an order is suitable and appropriate. The psychiatric treatment condition is usually for outpatient treatment. There should be evidence that the individual needs psychiatric treatment but their condition is not such that detention in hospital under the Mental Health Act is required.

Apart from these specific medical disposals, psychiatric reports prepared before sentencing may be requested or used for two other broad purposes. First they may be used by the defence to support arguments for mitigation in sentencing. Alternatively, reports may be used to assist courts in relation to the question of an offender's risk to the public.

If psychiatric opinions about risk are given in reports it is important that they are well substantiated (usually with reference to detailed and corroborated past history) and carefully formulated. Psychiatrists preparing reports for sentencing should also be aware that in the more serious cases, courts may have the power to impose a discretionary life sentence, or a 'longer than normal' fixed sentence (under Section 2 (2)(b) of the Criminal Justice Act 1991). When courts have before them psychiatric reports on defendants who are described as mentally disordered (often personality disordered) but untreatable, the inference may be drawn that the offender is unstable and dangerous and therefore one of the above sentences may be appropriate to protect the public. (2,25 In such cases psychiatric reports may be used for purposes that were not foreseen by the assessing psychiatrist, and such possibilities need to be recognized.

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