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The courts and mental health

Explains what may happen if you are charged with committing a crime, what happens when you to go court, and how your mental health is taken into account.

  • This information applies to England and Wales.
  • This information applies to adults. It doesn't apply to children unless specifically stated.

Do I need to get legal advice?

Being charged with a crime is very serious and sometimes may lead to you being sent to prison. That's why it's very important that you get legal advice from a solicitor so that you understand what is happening and get the best possible outcome for yourself.

A solicitor can help you by:

  • explaining what you are charged with and what the possible outcomes are
  • preparing your defence and gathering evidence for you
  • representing you at court or getting a barrister to represent you if necessary.

How do I get legal advice?

If you are arrested, or interviewed under caution, you have the right to free advice and representation from a solicitor. (See more about your rights at the police station in our pages on police and mental health.)

To see a solicitor, you can either:

  • ask to see the duty solicitor at the police station, or
  • contact a different solicitor yourself. To do this you can contact the Law Society who can help you find solicitors in your area.

Different solicitors specialise in different areas of law:

  • If you've been arrested or charged with a crime, you need a criminal solicitor.
  • If you've been sent to hospital under the Mental Health Act and want to be discharged, you need a mental health solicitor.

If you are charged with a crime, you might get legal aid to help you pay for legal advice and representation.

Can I get legal aid?

Legal aid can help meet the costs of legal advice and representation in a court or tribunal. It is given to people who cannot otherwise afford it.

You can get legal aid once you have been charged if you pass two tests, the interests of justice test and the means test.

The interests of justice test

This test looks at:

  • the seriousness of the offence
  • the complexity of your case
  • any disability you may have
  • whether your mental health makes it more difficult to represent yourself.

Usually you'll only pass this test if the offence you are charged with could lead to a prison sentence.

The means test

This test looks at whether you receive any benefits, or if you have a low income. You will automatically pass this test if you receive certain benefits, such as:

  • Job-Seekers Allowance
  • Universal Credit
  • income-related Employment Support Allowance.

Otherwise the court will look at your income.

Example

Anton has bipolar affective disorder. He is arrested and charged with manslaughter. At the police station, Anton asks to speak to the duty solicitor, who attends the interview with him.

Afterwards, Anton contacts a different firm of solicitors that have been recommended to him. The solicitors advise Anton that he will get legal aid throughout the trial because of the seriousness of the charge against him, the fact that his mental health makes it more difficult for him to represent himself, and because he is on Universal Credit.

If you do get legal aid, you may have to pay a contribution based on your finances. If you are eventually found not guilty, the court can order that some or all of these contributions must be repaid to you.

What happens if I can't get legal aid?

If you don't get legal aid, you will need to represent yourself at court or pay for a solicitor yourself. You can also get a barrister to represent you without a solicitor by a process called 'direct access'. This will often work out much cheaper than paying for both a solicitor and barrister. You can visit the Bar Council Direct Access Portal for more information.

You should be aware that, even if you are found not guilty, you will not get back all the money you have paid for representation.

What can I do to look after myself?

Going through any legal process involving the courts can bring up difficult emotions, and be stressful for everyone involved. Our pages on managing stress, wellbeing, self-esteem, managing anger, and our general page on self-care could help you think about ways to look after yourself and find support. Our pages on different diagnoses also include guidance on treatment and support to help you manage your mental health problem.

< Going to court Pleading 'guilty' or 'not guilty' >

This information was published in July 2018.

This page is currently under review. All content was accurate when published. 

References are available on request. If you would like to reproduce any of this information, see our page on permissions and licensing.

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