Mental health and the courts

Answers some of the common questions about mental health and the courts and explains the options available.

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Who would believe me?

Posted on 07/10/2013

Mental health and the courts

It is government policy that people with mental health problems should receive treatment and care from health and social services. The law allows for this to continue, or begin, if someone becomes involved with the police (see Mental health and the police). This information describes the mechanisms that enable this to happen at any stage in the criminal justice system. It is selective, however, in the areas it covers and is therefore not a substitute for a statement of the law or for legal advice.

You will often be able to get free legal advice at court, under what is called a representation order (this used to be called ‘legal aid’), although this is now means-tested. For those on benefits there will usually be no contribution payable; for those on higher incomes (or with substantial savings), some payment may sometimes be required. You will obtain a representation order if the court decides that it is in the 'interest of justice' that you have a solicitor; any mental health problems must be considered by the court when making this decision. If you obtain a representation order this means that either the case is serious enough for it to be possible that you could go to prison, or that you have difficulty understanding proceedings and need the help of a solicitor. You can instruct a solicitor of your own choosing who has a contract with the Legal Services Commission; otherwise there will be a duty solicitor available in court.

If you want advice from a solicitor who has knowledge of mental health law and issues, contact the Law Society or Community Legal Advice for practitioners in your area.

Legal terms are used as they appear in the Mental Health Act 1983 and other legislation. Some people find these terms inappropriate, even offensive, but they are used here for the sake of legal accuracy. To keep this guide as straightforward as possible, we have kept technical terms to a minimum and summarised the effects of the law and good practice, where appropriate. Where we use section numbers, they are from the Mental Health Act 1983. Definitions of words are given in Explaining legal terms.

If the police have charged me with an offence, will I have to go to court?

If after being charged, the police grant you bail (that is, release you from custody), you will be required to attend the magistrates' court at a later date. This bail may be with conditions, such as to reside at a particular address or report to a police station. If the police refuse you bail, you must be taken before the magistrates' court at the earliest opportunity.

What is the role of the Crown Prosecution Service?

The police will send a file to the Crown Prosecution Service (CPS), which will decide if the prosecution should continue. The CPS will consider any evidence presented to them by the police. In addition, they are required to weigh up what public interest there is in continuing with the prosecution, against any harmful effects this might have on your health. They have the power to 'discontinue' the prosecution. They may do so if the offence is relatively minor when compared to the effect prosecution will have on your health. In order to come to a decision, they may take evidence from health and social services and, in some districts, from special panels of mental health professionals set up to advise the CPS.

The CPS can discontinue a prosecution at any stage, even if you have already appeared in court and are due to return. Your solicitor may be able to make representations to the CPS requesting that the prosecution be discontinued. For example, if you have been admitted to hospital and the most likely outcome of a court appearance is a hospital order, your representative may argue that there is no point in continuing the prosecution and that it should be stopped.

What will happen at the magistrates' court?

Procedures at the magistrates' court are complex and it is important to have the advice of a solicitor. Remember, representation orders are frequently available and often do not require financial contributions (see above).

Generally, the magistrates will consider several issues, including whether the matter need go any further. Again, they will weigh up the alleged offence, against what is known about your mental health. If the court is satisfied you are receiving care and treatment from health and social services, they may halt the prosecution, if it is in the public interest to do so.

In order to form a view, the magistrates may want reports from a psychiatrist. Some courts now have schemes where a doctor is able to see you at court and advise the magistrates about your mental health and what mental health services could offer you.

What if the prosecution is not stopped?

The matter will be tried, and, if you plead guilty to the offence or are found guilty following a trial, you will be sentenced. If the matter is relatively minor (a 'summary offence'), then the trial will be at the magistrates' court. The most serious offences ('indictable-only offences') will be tried in the Crown Court, to which the magistrates will commit you.

There is a category of offences that falls in between ('either way offences'), where you may have a choice as to which court will deal with the matter. You must seek advice from your solicitor on this point, if it arises.

In the meantime, the magistrates will decide whether you should be given bail. They may set conditions on bail; for example, concerning where you live or requiring that you see a doctor for a report to be made.

The magistrates must give you bail unless there are reasons to refuse (schedule 1 of the Bail Act 1976). However, this will be more difficult if you are already on bail for another offence. If they want a medical report to be made, but have reason to think you will not see a doctor for such a purpose, or if you are likely to be a risk to yourself or others, they may remand you into custody (rule 41 of the Criminal Procedure Rules 2005), although Home Office guidance has been that such remands should normally be to hospital (para 7 Provision for Mentally Disordered Offenders circular 66/90).

Alternatively, the magistrates can remand you to hospital so a report on your mental condition can be prepared (section 35). The court must have some evidence from one doctor that you have a mental health problem, and that it would be impractical for a report to be made if you were given bail. This power is not available where the alleged offence is such that it can only be tried in the Crown Court. Remand to hospital by this section can be extended up to a total of 12 weeks.

The Crown Court may also use the above power. It can also remand you to hospital under section 36. That is, if the court has the evidence of two registered medical practitioners who think you have a mental health problem of a nature or degree that makes it appropriate for you to be remanded to hospital for medical treatment. The section can be renewed up to a total of 12 weeks.

In addition, the Crown Court can remand you following conviction for an imprisonable offence (except for murder) under section 38. This section, which is renewable to a maximum period of one year, allows for assessment and compulsory treatment, following which the Court will pass its final sentence. In practice, the Court will then decide whether this sentence will be a hospital order under section 37.

What happens if I am remanded to prison and I am unwell?

Mental health service provision in prisons has generally improved, and care there has been transferred from the prison service to the National Health Service. The courts have ruled that healthcare provision for prisoners should generally be of the same standard as that given to those living in the community.

However, if you are in distress, you may want to be transferred to hospital. There are certain powers enabling the Ministry of Justice to permit this. The Ministry of Justice has also written to prison doctors saying that, if a transfer to hospital is necessary, they should actively follow this up. If your doctor in prison believes you should be transferred and there is still a delay, it is likely to be because the local health authority has been slow to assess you, or that they maintain there is a shortage of appropriate resources. If the delay is prolonged you should seek legal advice, as action in the High Court may be possible to enforce your health authority to make resources available.

For a remand prisoner, two registered medical practitioners must agree that he or she is suffering from a mental health problem of a nature or degree which makes it appropriate for there to be an urgent admission to hospital for medical treatment (section 48).

If you are transferred to hospital you have the right to apply to the Mental Health Tribunal. However, if you are discharged, or your doctor decides that you are no longer detainable under the Mental Health Act, you will then be returned to prison. (For further details, see Discharge from hospital.)

Different provisions apply to sentenced prisoners (see below ).

If I have mental health problems, will the court treat me differently?

There are specific rules that mean you may be treated differently, particularly in sentencing, if you are found guilty of an offence. During a trial, though, the court will treat you as if you did not have mental health problems, unless you provide evidence to the court to show how this is relevant. Such evidence would often be a psychiatric report.

In order to be tried, you must be able to understand court procedures after they have been explained to you. If not, you may be found ‘unfit to plead’.

What does 'unfit to plead' mean?

If you cannot understand the meaning of the charge against you, or what the pleas of 'guilty' and 'not guilty' mean, or cannot instruct a lawyer to represent you, the court may take medical evidence to find out whether you are unfit to plead.

Magistrates have the power to deal with the matter without convicting you. If they are satisfied that you did the act with which you are charged, then they can make a hospital order (section 37). To do this, the magistrates must receive evidence from two registered medical practitioners that you have a mental health problem and be satisfied that a hospital order is the most appropriate way of dealing with your case (see below).

The Crown Court has special powers. First of all, a judge will decide if you are unfit to plead. If that is the case, there will be a 'trial of facts' to decide whether you did the act you are accused of. The Court can then decide how to deal with you appropriately, in much the same way as if you pleaded or had been found guilty in an ordinary trial. As well as a hospital order (see above), the Court can make a 'supervision order' or order your 'absolute discharge'. The idea of a supervision order is to allow you to receive support and treatment, usually with the help of a social worker. Absolute discharge might be ordered where, for example, your alleged offence is trivial and no further action is necessary. (Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, and the Domestic Violence and Victims Act 2004 which both amend previous legislation.)

Can I use mental health problems as a defence?

The role of mental health in the discontinuation of criminal proceedings is described on above. Beyond this, there are limited circumstances that allow mental health problems to be used as a defence.

If it can be proved that you were 'insane' at the time you committed the offence, the Crown Court may accept this as a defence (Criminal Procedure [Insanity and Unfitness to Plead] Act 1991). The Court still has the power, though to deal with you as it thinks fit, and this means it may impose an appropriate 'disposal'. The options are broadly the same as set out under the next question. This decision should be made after discussion with your solicitor.

In addition, it might be possible that your mental health may prevent the 'intent' required for the conviction of certain offences.

The only other special case is if you are accused of murder. If medical evidence shows you were experiencing an 'abnormality of mind', which meant your responsibility for the crime was diminished, then a finding of manslaughter will be substituted (section 2 of the Homicide Act 1957).

If I am found guilty of an offence, will I be sentenced to imprisonment?

The Courts have a range of options to choose from in giving a sentence. For minor offences, you may be 'bound over' (you agree to the court not to carry out particular actions) or even conditionally discharged. A community rehabilitation order (formerly known as a probation order) may be given if you agree to be bound by it. This will be supervised by a probation officer and may include a condition that you accept treatment from a psychiatrist.

A psychiatric report must be obtained before sentencing if the defendant 'is, or appears to' have a mental health problem, unless a report is considered unnecessary. If the Court is considering imposing a prison sentence, it must consider the effect such a sentence would have on your mental condition and on any available treatment (section 82 of the Powers of Criminal Courts [Sentencing] Act 2000). This may lead the Court to consider whether another option is more appropriate.

The Court may order you to hospital (section 37). That is, if two registered medical practitioners agree you have a mental health problem of a nature or degree, which makes it appropriate for you to be detained in hospital for medical treatment and if, in all the circumstances, that is the most appropriate way of dealing with your case.

The Court also has the power to impose a term of imprisonment, but with a direction that the person be transferred to hospital for immediate treatment (section 45A).

What are the effects of a hospital order?

Most section 37 hospital orders are initially for six months. At the end of that period, you have the right to apply to the Mental Health Tribunal. Your responsible clinician (RC) has the right to discharge you at any time, as do the hospital managers, but the 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 your section is renewed, you can apply to the Mental Health Tribunal for discharge. (For advice on treatment while you are in hospital, see Consent to medical treatment.)

In very serious cases, the Crown Court may add a 'restriction order' (section 41) 'without limit of time'. This means your RC needs the permission of the Ministry of Justice to discharge you from hospital, and the hospital managers have no power to discharge. The Ministry of Justice and the Mental Health Tribunal have the right to discharge you if you are restricted. (See Discharge from hospital, for details.)

If I am sentenced to prison and I am unwell, what will happen?

The Ministry of Justice has the power to make a transfer direction to hospital. That is, if two registered medical practitioners agree that you have a mental health problem, of a nature or degree that makes it appropriate for you to be admitted to hospital for medical treatment (section 47) and that such treatment will alleviate, or prevent, a worsening of that problem. The Ministry of Justice, using a 'restriction direction' (section 49), will usually prevent the hospital from discharging you. This means that your RC cannot discharge you from hospital without the permission of the Ministry of Justice.

It is important to be aware that a sentenced prisoner transferred to hospital for treatment may be detained in hospital even after his or her sentence has expired, if the doctor considers that he or she still requires treatment.

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