An evaluation of the proposals for implementation and change in current legal policy when related to the integrated care of mentally disordered offenders
According to the intentions of the White Paper 'Mental Health National Service Framework' presented to Parliament by the Secretary for Health in December 2000, mentally disordered offenders should be the responsibility of the NHS and social services rather than automatically liable for prosecution within the criminal justice system. This New Mental Health Act is the result of an investigation by Professor Richardson whose report highlighted changes that needed to be made to current legislation to instigate new national standards and provide additional funding so that adequate secure beds and sufficient outreach teams would be available, providing a full out-of-hours service throughout the year. The intention was to provide a safe environment for patients, carers and the public.
Still an issue, however, is the distinction between those who should be liable for prosecution and those who should fall within the remit of the NHS. When an accused stands trial and it has been proved that insanity can, in fact, be substantiated, the defendant is acquitted according to the M'Naghton rules. When fitness to plead and a defence of insanity is contested the courts are inevitably confronted with particular difficulties, especially when crimes involving murder have been committed. This correlation between the effects of insanity and its effect on crime, together with fitness to stand trial have a significant effect on the Criminal Justice System and the aim of this study is to evaluate the current legal policy surrounding mentally disordered offenders, focusing on the manner and impact within criminal law and justice. The manner and impact of its implementation is investigated, together with any proposals for change being considered.
The defence of fitness to plead is not especially uncommon, in the event of which it needs to be decided whether legal capacity is such that the accused is fit to stand trial. When Huntley used this defence prior to standing trial for the Soham murders he was remanded for special reports at Rampton Special Hospital under Section 35 of the Mental Health Act 1983. The question that has to be resolved prior to trial is whether the accused has sufficient understanding to know what they are pleading and, in the event of a trial proceeding, to have sufficient capacity to understand the evidence being presented and make a proper defence according to precedent.
Progress of the Draft Mental Health Bill 2002
Concern for public safety in respect of mentally disordered patients has led to various investigations being set up, the resultant reports being presented to Parliament as working documents or white papers. The MacLean Consultation Paper reported that:
Since the Butler Report (if not before), there has been concern about people who are dangerous because of a personality disorder, particularly those who are sometimes labelled as psychopaths.
This includes a significant review of the Mental Health Act 1983 which was, itself, the result of a review of mental health legislation that was last undertaken during the 1950s. The Richardson Committee, formed in October 1998, in response to widespread concern for public safety, led to a Green Paper outlining various reforms, the publication of which took place in November 1999. The White Paper 'Reforming the Mental Health Act 1983' followed in December 2000 as the result of which Professor Richardson's proposals for changes were expected to be achieved, with additional funding being available by April 2001 to provide 500 extra secure beds, legislation.
Entitled 'Mental Health National Service Framework: Reforming the Mental Health Act', Part I set out the standards that cover 320 24-hour staffed beds, 170 assertive outreach teams and access to services 24 hours a day, seven days a week. The Secretary of State for Health claimed that 3,000 new staff in mental health services, including over 350 more consultant psychiatrists and nearly 2,000 nurses had been recruited since 1998. However, the first Draft Mental Health Bill 2002 was not produced until June 2002. This was only a Consultation Document which was followed by a number of amendments to refine the Bill following suggestions by over 2,000 stakeholders. The Revised Draft Mental Health Bill was published for Pre-Legislative Scrutiny in September 2004.
Draft Mental Health Bill [revised] 2004
The Pre-legislative Scrutiny Committee published its First Report on the Revised Draft Mental Health Bill on 20th March 2005, too late for inclusion into the current session of Parliament. As Parliament has now been dissolved prior to a new General Election the Draft Mental Health Bill [revised] has to await its second Reading in Parliament, followed by approval by the House of Lords. If the draft format is approved by both Houses an application will be made for Royal Assent, after which a suitable period of time will elapse before this Bill will enter the Statute Books. This is to ensure any secondary legislation has been prepared and a new Code of Practice published and there are sufficient staff knowledgeable about any new legislation.
Its draft format was published by the Department of Health on 8th September 2004 and presented to Parliament, for its first reading, by the Secretary of State for Health. In this proposed Bill Part 3 relates specifically to 'patients concerned in criminal proceedings'. Following this reading the revised Bill was presented for consideration to the Pre-Legislative Scrutiny Committee on 15th September 2004 where minutiae was examined in detail and evidence invited by various stakeholders, after which a debate in Parliament was held to discuss its content, with further amendments made as necessary.
Integrated care had been ensured following the Health Act 1999 which, in conjunction to the Care Standards Act 2000 and the Commission for Health Improvements and the National Care Standards, has attempted to reduce any inconsistencies between the social care services and the health service in their shared care of mentally disordered patients. In May 1996 the Home Office released a Press Notice which revealed that the public has a right to expect to be protected from dangerous offenders. Whilst Clause 36 of the Crime (Sentences) Bill allows for a Hospital Direction Order to be made, which contains an inherent clause specifying the offender must revert to prison if treatment fails and the offender is still likely to be considered a risk to the public, or continue treatment in hospital if this is a more appropriate outcome.
Hospital Orders are an option for all offenders detained under the Mental Health (Scotland) Act 1984, whilst in England and Wales it only relates to psychopathic offenders. Hospital Orders are cited under Section 37 of the Mental Health Act 1983 under which judges may make a mandatory order for mentally disordered offenders to be treated in an appropriate hospital, dependent on clinical evidence which can range from mental impairment, a mental illness to psychopathic disorders. In order to afford the public as much security as possible the judge does have the discretion to make a Hospital Order subject to Section 41 which is designed to ensure the offender is detained indefinitely, with release often at the discretion of the Home Secretary.
A Hospital Order effectively removes the mentally disordered offender from the criminal justice system. Information taken from the 2003 Statistics for England and Wales show evidence of 1% reduction in restricted patients being detained in high security hospitals during 2002 and 2003 whilst there was an 8% rise in restricted patients being detained in other hospitals, with figures over ten years showing a rise from 1,050 patients in 1993 to 2,015 in 2003. These same statistics exhibit a corresponding fall in high security hospitals during the same ten year period from 53% to 35%.
Originally, the Butler Committee opposed the concept of Hospital Orders when it was first suggested in 1975, but a Steering Group reassessed this consideration in 1994 and decided that, when used just for psychopathic offenders it would supplement the courts powers when sentencing, one of the reasons being that these 'offenders with psychopathic disorders were known to re-offend at twice the rate of offenders with mental illness'. The concept of fitness to plead is a controversial measure to protect mentally ill offenders from facing the 'exactitudes' of court. Controversy currently exists when medical opinion, which recognises such psychiatric conditions as irresistible impulse, is in conflict with defences currently acknowledged by the law and, as such, the Butler Report implies that the concept of fitness to plead should take into account the fact that those who are mentally ill should receive mandatory treatment in hospital with a trial of facts, including the mens rea relating to the case, being held. The Report suggests that a guilty verdict would be recorded as 'a finding of unfit to plead and proven' and not guilty result recorded as a plain acquittal.
The defence of insanity relates to a defendant's mens rea and is considered to provide a complete defence in relation to any alleged criminal conduct, being contained in the M'Naghton Rules of 1843 which is still regarded as the only test for legal insanity and continues to be upheld by the House of Lords. According to these precepts:
it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason from disease of mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong.
If this defence is allowable and the defendant found guilty, the court may give a special verdict of 'not guilty by reason of insanity' which relates to the accused person's state of mind at the time the crime was committed and are taken into account if, subsequently, the defendant is considered fit to plead. Defect of reason is acknowledged in accordance with the concept of disease of the mind relating to medical evidence being presented in court, although a different defence to that of incompetence by way of insanity due to the mens rea factor, as in the case of Kemp  who suffered from arteriosclerosis.
It was argued that mens rea was not a factor in this instance, with the defence quoting automatism which could result in a full acquittal. There was medical doubt as to the relevance of disease of the mind as a defence, ruled by Devlin, LJ as being immaterial regardless of medical evidence due to a potential discrepancy between diseases with a physical nature and those which manifested as mental disabilities. Devlin interpreted this disparity as intending to limit the effect of the connotations associated with the defence of 'defect of reason'. Interestingly, the court ruled in Burgess  that the defendant was suffering from a disease of the mind at the time he strangled his victim whilst sleepwalking due to its cause being of internal origin rather than an external factor which might amount to the defence of non-insane automatism.
Relevance of Medical Opinion
Although an aspect of controversy, internal causes are considered to be a continuing factor with the potential for recurring whilst an external feature could evolve into, or otherwise become, an internal characteristic for which the defence of insanity might be relevant. There is a particular relevancy in clarifying the disparity between the plea of insanity outside of medical opinion and the defence of disease of the mind due as various detention options are available for the judge to impose if acquitted according to a plea of insanity. An additional factor is the defendant being aware of the nature and quality of his act, specifically relating to actus reus: the physical act of carrying out the crime. A defendant without the capacity for mens rea could not be convicted of murder because he could not be held responsible for his actions. Evidence of this has been reported when Noel Ruddle won an appeal, in 1999, to be released from Carstairs Hospital for the Criminally Insane in Scotland 'because his psychotic illness was untreatable'.
The medical diagnosis of disease of the mind would result in the defendant being detained indefinitely in a special hospital such as Rampton, whilst an action undertaken without realising the nature and quality of the act would be interpreted as an involuntary action resulting in an acquittal under special rules. The second test applied is whether the defendant has sufficient knowledge of their actions being wrong in specific terms relating to the crime the defendant is charged with. The effect of this test reveals that insanity could still be a factor even if the defendant exhibited sufficient mens rea, although insane delusions do not come within the remit of the M'Naghton Rules in courts under the jurisdiction of UK law although this factor is recognised in some states of the USA.
SUMMARY AND CONCLUSION
A clear distinction between the existing Act and the new Mental Health Bill is in terms of the use of formal powers in order to clarify the need for compulsory treatment, and greater opportunities to divert mental health offenders with non-dangerous disorders away from the criminal justice system. This includes amalgamating the distinction between patients admitted for assessment and those who require treatment on admission. However, providing these patients with safe-guards is highlighted as one of the more important innovations in accordance with the Care Programme Approach, increasing the emphasis that is currently revealed in Section 117 of Mental Health Act 1983. This involves a Specialist Independent Advocacy Service available to mental health patients and their representatives and a Tribunal or a Court independently reviewing any mandatory admission of more than 28 days.
A new Healthcare Commission will take over the responsibilities currently the remit of the Mental Health Act Commission and the emphasis will be very much on patient autonomy and choice where appropriate. Patients would be encouraged to make their own nominations about who they want to be represented by, a care plan that must be instituted within 5 days and new statutory rights for carers to be directly involved in all aspects of the patients' care. However, courts use of 'hospital orders' is to be increased which, whilst many mentally disordered offenders would be diverted into the jurisdiction of Healthcare facilities, the tandem use of imposing prison sentences in conjunction with hospital care is to be increased. This effect increases the powers of the court in sentencing, perhaps aimed at reassuring the public that safety of society is a priority. Within this innocuous clause, however, lies the power to effectively diminish considerable patient autonomy due to lack of sufficient definitions as to when and how this dual affect might be imposed.
This could continue to leave the mentally disordered offender in an extremely vulnerable position: they could receive a hospital order ensuring they receive treatment then, regardless of potential new legislation be transferred to prison to serve a sentence in a place which could be totally inappropriate for their particular disorder. If the intention of the new Mental Health Bill is to remove mentally disordered offenders from the Criminal Justice System and place them under the jurisdiction of the Health Services - but at the same time increasing the courts sentencing powers for certain categories of offenders to be retained within the Criminal Justice System - not only could the object of the new Act be questionable, but a potential could be introduced for this discrepancy to be used by defence lawyers in respect to discrimination under the Human Rights Act 1998. Clearly secondary legislation does need to be in place before the new Act is made law in order to ensure that, whilst patients rights are maintained, the public continues to be protected from the more dangerous elements of mentally disordered offenders.
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Bailey, J and MacCulloch, M (1992): Patterns of reconviction in patients discharged directly to the community from a special hospital: implications for after-care. Journal of Forensic Psychiatry 1992, Vol 3: Pages 445-61.
McGarvie, Lindsay (2001): Carstairs Docs Revolt against Hospital Boss, Sunday Mail Newspaper, 11th February 2001
Greenhill, Sam (2002): Police hold back mob as Huntley appears in dock. Birmingham Post Newspaper, 9th November 2002
Home Office Reports
Aarvold Committee: Home Office (1973): Report on the review of procedures for the discharge and supervision of psychiatric patients subject to special restrictions. London: HMSO, 1973. (Cmnd 5191)
Butler Report: Home Office, Department of Health and Social Security. Report of the committee on mentally abnormal offenders. London: HMSO, 1975. (Cmnd 6244.)
Home Office : Report of the Committee on Mentally Abnormal Offenders (Cmnd 6244)
Department of Health, Chairman: Dr J Reed : Home Office. Report of the working group on psychopathic disorder London: HMSO
Home Office : Protecting the public: the Government's strategy on crime in England and Wales. London: HMSO (Cmnd 3190.)
Home Office Press Release 130/96: Stronger powers for courts in sentencing mentally disordered offenders 3 May 1996
Home Office : Department of Health. Mentally disordered offenders. Sentencing and discharge arrangements. London: Home Office, 1996
Scottish Office Home Department (1996): Crime and punishment. Edinburgh: Scottish Office: (Cmnd 3302)
Home Office : Draft Mental Health Bill [revised]: (Cm 6305-1)
MacLean Consultation Report, Section 65: Offenders with Personality Disorders William McNaghton was proved to be insane when, in 1843, he was acquitted of killing the Prime Minister's secretary
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