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Mental disorder and the criminal law england and wales

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  • 1. Mental disorder & the Criminal Law: England & Wales Professor Anselm Eldergill
  • 2. Part III 1 — MHA 2007
  • 3. DEFINITIONS
  • 4. DefinitionsMedical treatment Mental Disorder Hospital
  • 5. Section 1 — Mental Disorder The 2007 Act abolishes the four forms of mental disorder set out in the 1983 Act. It simplifies the existing definition of mental disorder. It also removes three of the exceptions in section 1(3) — immorality, promiscuity and sexual deviancy — leaving in only ‘dependence on alcohol or drugs’.
  • 6. The four forms of mental disorder 1983 A ct 1983 Act as amendedA person may only be placed on one of the  W h a te v e r th e s e c ti o n , i t i s n o w o n l ylonger-term 6 month orders if two doctors necessary to show that the patient suffersagree that s/he suffers from: from a ‘mental disorder’. Mental illness, or Mental impairment, or  ‘Mental disorder’ means ‘any disorder or disability of mind.’ Severe mental impairment, or Psychopathic disorderBy section 1(3), no one may be dealt withas mentally disordered by reason only of: By section 1(3), no one may be dealt with as mentally disordered by reason only of: Promiscuity or other immoral conduct S e x u a l d e v i a nc y  Dependence on alcohol or drugs. Dependence on alcohol or drugs.
  • 7. ‘Psychopathic disorder’ 1983 A ct 1983 Act as amended“Psychopathic disorder” means “a ‘Mental disorder’ means ‘any disorder orpersistent disorder or disability of mind … disability of mind.’which results in abnormally aggressive orseriously irresponsible conduct on the partof the person concerned.”No one may be dealt with under the Act ashaving a psychopathic disorder by reason No one may be dealt with under the Act aso n l y o f: mentally disordered by reason only of: Promiscuity or other immoral conduct S e x u a l d e v i a nc y  Dependence on alcohol or drugs. Dependence on alcohol or drugs.
  • 8. ‘Any disorder or disability of mind’3.2 Mental disorder is defined for the purposes of the Act as “anydisorder or disability of the mind”. Relevant professionals shoulddetermine whether a patient has a disorder or disability of themind in accordance with good clinical practice and acceptedstandards of what constitutes such a disorder or disability.3.3 Examples of clinically recognised conditions which could fallwithin this definition [include] … eating disorders, non-organic sleep disorders and non- organic sexual disorders learning disabilities autistic spectrum disorders (including Asperger’s syndrome) behavioural and emotional disorders of children and a d o l e s c e n ts
  • 9. The learning disability exception This general definition of mental disorder is “learning disability” subject to one exception: means a state of “A person with learning disability shall not be arrested or considered by reason of that disability to be incomplete suffering from mental disorder for the purposes of the [long-term sections].” development of mind which includes The purpose of this exception is to preserve the present position that a person with a learning significant disability may not be placed on one of the impairment of longer-term/six month sections unless their intelligence and ‘learning disability’ is associated with social functioning. abnormally aggressive or seriously irresponsible conduct.
  • 10. Autistic spectrum disorders 3.16 The learning disability qualification does not apply to autistic spectrum disorders (including Asperger’s syndrome). It is possible for someone with an autistic spectrum disorder to meet the criteria for compulsory measures under the Act without having any other form of mental disorder, even if their autistic spectrum disorder is not associated with abnormally aggressive or seriously irresponsible behaviour. While experience suggests that this is likely to be necessary only very rarely, the possibility should n e v e r a u to m a ti c a l l y b e d i s c o u n te d .
  • 11. Anomalies A tribunal finds that Mr Jones suffers from a state of arrested or incomplete development of mind which includes significant impairment of intelligence but not significant impairment of social functioning. According to the new section 1, he does not have a learning disability and the prohibitions in section 1 on using section 3, 37, etc, do not apply to him.
  • 12. The new section 11.(2) In this Act—“mental disorder” any disorder or disability of mind and “mentally disordered" shall be construed accordingly…(2A) But a person with learning disability shall not be considered by reason of that disability to be—(a) suffering from mental disorder for the purposes of the provisions mentioned in subsection (2B) below; or(b) requiring treatment in hospital for mental disorder for the purposes of sections 17E and 50 to 53 below,unless that disability is associated with abnormally aggressive or seriously irresponsible conduct on his part.(2B) The provisions are—(a) sections 3, 7, 17A, 20 and 20A below;(b) sections 35 to 38, 45A, 47, 48 and 51 below; and(c) section 72(1)(b) and (c) and (4) below.(3) Dependence on alcohol or drugs is not considered to be a disorder or disability of mind for the purposes ofsubsection (2) above.(4) In subsection (2A) above, “learning disability” means a state of arrested or incompletedevelopment of mind which includes significant impairment of intelligence and socialfunctioning.
  • 13. ‘Medical treatment’145.–(1 ) In this Act, unless the context otherwiserequires … “medical treatment” includes nursing,[OUT: and also includes care, habilitation andrehabilitation under medical supervision],psychological intervention and specialist mentalhealth habilitation, rehabilitation and care;145.–(3) Any reference in this Act to medicaltreatment, in relation to mental disorder, shall beconstrued as a reference to medical treatment thepurpose of which is to alleviate, or prevent aworsening of, the disorder or one or more of itssymptoms or manifestations.
  • 14. Example• Mr Jones is receiving psychological intervention.• Ms Smith is being cared for and supervised by a social work member of the local CMHT.• No doctor is involved in their cases.• Both are receiving ‘medical treatment’ for the purposes of the Act. What about hospitals?
  • 15. NEW ROLES
  • 16. New roles: AMHPs114 Approval by local social services authority(1) A local social services authority may approve a person to act as anapproved mental health professional for the purposes of this Act.(2) But a local social services authority may not approve a registeredmedical practitioner to act as an approved mental health professional.(3) Before approving a person under subsection (1) above, a localsocial services authority shall be satisfied that he has appropriatecompetence in dealing with persons who are suffering from mentaldisorder.
  • 17. New roles: AMHPs ASW Persons eligible to be an AMHP Any person approved to perform the Function by a local social services Authority, other than a medical Practitioner. The function will therefore no longer AMHP be confined to social workers. For example, nurses and OTs are eligible to be trained as AMHPs.
  • 18. New roles: Clinicians Approved Clinician Responsible Clinician  Section 145: ‘means a person  ‘Responsible clinician’ replaces approved by the Secretary of ‘responsible medical officer’. State (in relation to England) or  Section 34: ‘in relation to a s2 by the Welsh Ministers (in or s3 patient, or a community relation to Wales) to act as an patient, the responsible approved clinician for the clinician is ‘the approved purposes of this Act.’ clinician with overall responsibility for the patient’s case.’ ‘Approval need not be restricted to medical practitioners, and may be extended to practitioners from other professions, such as nursing, psychology, occupational therapy and social work.’ Explanatory Notes, para. 52.
  • 19. New roles: Clinicians RMO Persons eligible to be an RC Anyone who has been approved as An ‘approved clinician’ The function will therefore no longer be confined to doctors. For example, nurses, OTs, psychologists RC and social workers may seek approved clinician status.
  • 20. The responsible clinicianThe responsible clinician has overall responsibility for the case but may not be incontrol of all aspects of the patient’s treatment.Responsible for:  It is the approved clinician in charge Granting section 17 leave; of the treatment in question who completes any necessary Form 38 Attaching conditions to such leave; (consent to treatment form). Barring discharge by the nearest  Similarly, section 63 now provides relative; that the patient’s consent is not Making community treatment orders required for any medical treatment, and recalling patients subject to such other than ECT and medication orders; administered after the first three months, which is given under the Examining patients and renewing their direction of the ‘approved clinician detention or guardianship under in charge of the treatment.’ section 20; Discharging patients under section 23; Providing reports to the Secretary of State on restricted patients.
  • 21. APPROPRIATE MEDICAL TREATMENT
  • 22. Appropriate medical treatment The four forms of mental disorder have been abolished. Consequently, a person with a personality disorder may be placed under section 37 etc even though s/he would not previously have satisfied the criteria for having a psychopathic disorder. The treatability test is abolished, and replaced by an appropriate medical treatment test, which now applies to all patients. According to the Act, references to appropriate medical treatment are references to medical treatment which is appropriate in the patient’s case, taking into account the nature and degree of their mental disorder and all other circumstances of his case. Although it is no longer necessary that the treatment is likely to S37,etc alleviate the patient’s condition, or prevent it from worsening, the purpose of any treatment provided must still be to alleviate, or prevent a worsening of, the disorder, or one or more of its symptoms or manifestations. Treatment need not be under medical supervision, or involve a doctor, and may consist only of specialist care or psychological intervention. The renewal and tribunal discharge criteria are modified accordingly.
  • 23. ‘Appropriate medical treatment’6.11 The other circumstances of a patient’s case might include factors such as: the patient’s physical health …; any physical disabilities the patient has; the patient’s culture and ethnicity; th e p a ti e n t’ s a g e ; the patient’s gender, gender identity and sexual orientation; the location of the available treatment; the implications of the treatment for the patient’s family and social relationships, including their role as a parent; its implications for the patient’s education or work; and the consequences for the patient, and other people, if the patient does not receive the treatment available … e.g. a prison sentence.
  • 24. Example • According to the Briefing Note on the Bill, ‘Decision makers will have to consider not only the clinical factors, but also, for example, whether treatment will be culturally appropriate, how far from the patient’s home the proposed service is and what effect it will have on the patient’s contact with family and friends.’Mr Jones is detained under section 37. His diagnosisis anti-social personality disorder. His case comesbefore a tribunal. He argues that the treatment he isreceiving in a private hospital 150 miles from hishome in London does not constitute appropriatetreatment. It is not culturally appropriate, there is nopsychological input, he has no contact with familyand friends and it is too far from home. Furthermore,it is not medical treatment because the purpose of hisdetention is simply public protection, not alleviatingor preventing a worsening of his condition.
  • 25. But …..6.12 Medical treatment need not be the mostappropriate treatment that could ideally be madeavailable. Nor does it need to address everyaspect of the person’s disorder. But the medicaltreatment available at any time must be anappropriate response to the patient’s conditiona n d s i t u a ti o n .
  • 26. s20 Renewals Renewals of detention are based on an examination by the responsible clinician, who may not be a medical practitioner. Before renewing the section, another person who has been professionally concerned with the patient’s medical treatment, but belongs to a different profession, must state in writing that s/he agrees that the renewal conditions are satisfied. This person also need not be a medical practitioner. Commentary It seems inconsistent that recommendations from two medical practitioners are required before a person may be detained under section 3 but the person’s detention can then be renewed for 12 months on the basis of an examination by a non-medically qualified person. Is a medical opinion a necessary prerequisite of detaining someone for six or twelve months, or not? Is it a requirement of the European Convention or n ot ?
  • 27. “PSYCHOPATHIC DISORDER”
  • 28. Psychopathic disorders Long-term detention no longer requires the existence of a persistent disorder or disability of mind that results in abnormally aggressive or seriously irresponsible conduct. Dealing with someone as mentally disordered by reason only of sexual deviancy, or promiscuity or other immoral conduct, is no longer prohibited by section 1(3). Admission under section 3 or 37 require that the person’s condition is treatable. The appropriate treatment that is provided may consist only of specialist social care, without any medical supervision, etc. This will be particularly relevant to CTOs.
  • 29. PART III
  • 30. Part IIIOffender provisions s.36 No longer limited to mental illness or severe mental impairment. s.37 In cases not involving mental illness or severe mental impairment, magistrates’ court can make order without convicting where appropriate. s4 1 Power to make limited-term restriction orders abolished. s45A Crown Court’s power to give hospital and limitation directions no longer limited to cases of psychopathic disorder. s4 8 As with s36, no longer limited to mental illness or severe mental impairment.
  • 31. Part IIIOffender provisions No longer limited to Transfer from prison to persons suffering from hospital for treatment mental illness or severepre-sentence (ss. 36 and 48) mental impairment Hybrid orders No longer limited to under section 45A persons suffering from (Punishment + treatment) Psychopathic disorder
  • 32. Anomalies The following persons are arrested and remanded in custody: Peter has a diagnosis of severe personality disorder, is charged with manslaughter and has set fire to his cell. Liam suffers from paranoid schizophrenia and believes the gaolers are trying to kill him. Adrian has an IQ of 65 and is well-behaved but his social functioning is impaired and he is bullied and frightened by the other inmates. Derek has an IQ of 67 and impaired social functioning, and he is charged with indecent assault. Which of them cannot be remanded or transferred to hospital pending trial?
  • 33. SUPERVISED COMMUNITY TREATMENT
  • 34. Introduction The supervision application (‘supervised discharge’) provisions are repealed. It will not be possible to make a supervision application from 3 November 2008 onwards. In their place is a ‘Supervised Community Treatment’ order. Following discharge into the community, the scheme is similar to that of conditional discharge under a restriction order, with the responsible clinician taking the role of the Minister of Justice. The original section 3 application/section 37 order remains in existence, and does not require renewal, while the patient remains subject to the CTO. If the CTO is revoked then the patient is again liable to detention under the original section 3 application/section 37 order.
  • 35. Who makes the order? 17A(4) The responsible clinician may not make a community treatment order unless— (a) in her/his opinion, the relevant criteria are met; and Responsible Clinician (b) an approved mental health + professional states in writing— AMHP (i) that s/he agrees with that opinion; and (ii) that it is appropriate to make the order.
  • 36. The criteria(5) The relevant criteria are— (a) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment; (b) it is necessary for his health or safety or for the protection of other persons that he should receive such treatment; (c) subject to his being liable to be recalled as mentioned in paragraph (d) below, such treatment can be provided without his continuing to be detained in a hospital; (d) it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) below to recall the patient to hospital; and (e) appropriate medical treatment is available for him.
  • 37. Attaching conditionsA community treatment order shall specify the conditions to which the patient is to be subject. COMPULSORY CONDITIONS The order shall specify conditions that the patient makes her/himself available for the purposes of being examined in connection with (1) the order’s renewal, and (2) the furnishing of a consent to treatment certificate. The patient may be recalled to hospital if s/he fails to comply with either of these two conditions. DISCRETIONARY CONDITIONS It may only specify such other conditions as the responsible clinician and an AMHP agree are necessary or appropriate for the purpose of (a) ensuring that the patient receives medical treatment; (b) preventing risk of harm to the patient’s health or safety; (c) protecting other persons. If a community patient fails to comply with any of these additional conditions, ‘that failure may be taken into account for the purposes of exercising the power of recall.’ VARYING AND SUSPENDING CONDITIONS The conditions may be varied or suspended from time to time.
  • 38. Recalling the patient The responsible clinician may recall a community patient to hospital if in her/his opinion: (a) the patient requires medical treatment in hospital for his mental disorder; and (b) there would be a risk of harm to the health or safety of the patient or to other persons if the patient were not recalled to hospital for that purpose. The RC may also recall the patient if s/he fails to comply with a condition that s/he makes her/himself available for examination for the purpose of a renewal or consent report. The power of recall ‘shall be exercisable by notice in writing to the patient’.
  • 39. The notice of recall 25.55 The responsible clinician must complete a written notice of recall to hospital, which is effective only when served on the patient ... 25.56 Once the recall notice has been served, the patient can, if necessary, be treated as absent without leave, and taken and conveyed to hospital … The time at which the notice is deemed to be served will vary according to the method of delivery. 25.57 It will not usually be appropriate to post a notice of recall to the patient … First class post should be used. The notice is deemed to be served on the second working day after posting, and it will be important to allow sufficient time for the patient to receive the notice before any action is taken to ensure compliance. 25.58 … if the patient is unavailable or simply refuses to accept the notice ... the notice should be delivered by hand to the patient’s usual or last known address. The notice is then deemed to be served (even though it may not actually be received by the patient) on the day after it is delivered – that is, the day (which does not have to be a working day) beginning immediately after midnight following delivery.
  • 40. The effect of recall MAXIMUM DETENTION PERIOD OF 72 HOURS “When the patient arrives at hospital after recall, the clinical team will need to assess the patient’s condition, provide the necessary treatment and determine the next steps. A recalled patient may be transferred to another hospital” (Code, Para. 25.63). The patient must be released after 72 hours if by then s/he has not been released and nor has the community treatment order has been revoked. EXAMINATION AND REVOCATION OF THE CTO Where a community patient has been recalled, the RC may revoke the community treatment order if s/he is of the opinion that the section 3 conditions are satisfied and an AMHP agrees with that opinion and that it is appropriate to revoke the order.
  • 41. Treatment during the recall period24.28 In general, SCT patients recalled to hospital are subject to sections 58 and 58A inthe same way as other detained patients. But there are three exceptions …: a certificate under section 58 is not needed for medication if less than one month has passed since the patient was discharged from hospital and became an SCT patient; a certificate is not needed under either section 58 or 58A if the treatment in question is already explicitly authorised for administration on recall on the patient’s Part 4A certificate; and treatment that was already being given on the basis of a Part 4A certificate may be continued, even though it is not authorised for administration on recall, if the approved clinician in charge of the treatment considers that discontinuing it would cause the patient serious suffering. But it may only be continued pending compliance with section 58 or 58A (as applicable) — in other words while steps are taken to obtain a new certificate.
  • 42. Revoking the CTO “If the patient requires in-patient treatment for longer than 72 hours after arrival at the CTO hospital, the responsible clinician should consider revoking the CTO. The effect of revoking the CTO is that the patient will again be detained under the powers of the Act” (Code, Para. 25.65). The effect of revoking the CTO is that the managers have the same power to detain the patient under s.6(2) of the 1983 Act as if s/he had never been discharged; and for section 20 renewal purposes the patient is deemed to have been admitted under Section 3/37 section 3 on the day that the order is revoked.
  • 43. Discharge and tribunals CTO patients may be discharged in the same way as detained patients, by the tribunal, the hospital managers, or for Part 2 patients the nearest relative (subject to the dangerousness ground). The responsible clinician may also discharge a CTO patient at any time and must do so if the patient no longer meets the criteria for a CTO. TRIBUNAL REFERENCES FOLLOWING REVOCATION OF CTO Where a community treatment order is revoked, the hospital managers must refer the patient’s case to a Mental Health Review Tribunal as soon as possible after the order is revoked.
  • 44. MHAC’s remit (a) to visit and interview in private patients detained under this Act in hospitals and registered establishments and community patients in hospitals and establishments of any description and (if access is granted) other places; and (b) to investigate— (i) any complaint made by a person in respect of a matter that occurred while he was detained under this Act in, or recalled under section 17E above to, a hospital or registered establishment and which he considers has not been satisfactorily dealt with by the managers of that hospital or registered establishment; and (ii) any other complaint as to the exercise of the powers or the discharge of the duties conferred or imposed by this Act in respect of a person who is or has been so detained or is or has been a community patient.
  • 45. Treatment on the CTO TREATMENT REQUIRES SOAD CERTIFICATE AUTHORITY TO GIVE IT 1. If s.58-type treatment (1) the patient has capacity and 2. SOAD certifies treatment consents to it; is appropriate (2) An LPA donee or a Court of 3. (certificate required one Protection deputy has consented month after CTO was to it; made in the case of (3) Giving the treatment is medication) authorised under section 64D [or 64G]
  • 46. Consent For section 58 treatments, a SOAD certificate stating that it is appropriate to give the treatment is required, although in the case of medication only after one month has elapsed since the CTO was made. Treatment also requires that the treatment is authorised in one of three ways: (1) the patient has capacity and consents to it; (2) An LPA donee or a Court of Protection deputy has consented to it; (3) Giving the treatment is authorised under section 64D [or 64G].
  • 47. Part III 2 — BASIC CRIMINAL LAW
  • 48. The Courts Structure HOUSE OF LORDS COURT OF APPEAL Criminal Division Civil Division (Lord Chief Justice) (Master of the Rolls) Crown Court High CourtMagistrates’ courts County CourtsCRIMINAL COURTS C I VI L C O U R TS
  • 49. 1 A RRE S TProceeding through the criminal courts 2 PO L IC E S TA TIO N 3 M A G IS TR A TE S C O UR T 4 CR O WN CO UR T 5 PL E A & TR I A L 6 S E N TE N CE
  • 50. Classes of offence M u rde r INDICTABLE ONLY Rape (Crown Court) Robbery (theft + force) Disorderly conduct SUMMARY ONLY Common assault (Magistrates’ courts) Assault on PC Burglary Theft TRIABLE EITHER WAY Offensive weapon (Consider facts) Indecent assault Possession of drugs
  • 51. Summary offences FI RST COURT APPEARANCE PLEA ENTERED GUI LTY NOT GUILTY UNFIT S37(3) NO TRI AL S35 ACTION GUILTY ACQUITTAL PRE-SENTENCE REPORTS SENTENCING
  • 52. Indictable onlyoffences MAGISTRATES COURT BAIL HEARINGS CUSTODY SECTION 35? CASE COMMITTED TO THE CROWN COURT BAIL FURTHER CONSIDERATION CUSTODY OF BAIL PRE-TRIAL? SECTION 35? SECTION 36? PLEA NOT UNFIT TO GUILTY INSANE GUILTY PLEAD REPORTS / TRIAL SENTENCE CPIA 1991 GUILTY ACQUIT
  • 53. Triable either-way offences PLEA BEFORE VENUE PROCEDURE PLEADS GUILTY PLEADS NOT GUILTY Dealt with as if pleaded guilty Court hears representations as to at a summary trial SENTENCE MODE OF TRIAL JURISDICTION REFUSED JURISDICTION ACCEPTED DEFENDANT ELECTS COMMITTED TO CROWN CT MAGISTRATES TRIAL
  • 54. Supervision of offenders Conditionally discharged patients (s.41) Guardianship order patients (s.37) Hospital order patients on leave (s.17) Unrestricted hospital order patients subject to community treatment orders (s.25A) Supervision orders (CPIA) Community orders Unconvicted Part II patients (ss.2, 3)
  • 55. Part III 3 — POLICE STATION
  • 56. Some basic legal considerations Guilt depends not only on the accused doing the act or omission charged but th e i r s ta te o f m i n d a t th e ti m e ; A person can be ‘morally’ guilty but legally innocent, and vice-versa; Care should be taken not to plead guilty to a charge prematurely if the prosecution may be willing to discontinue the case; Even if the prosecution will not withdraw the case, it may be prepared to reduce the charge to a less serious one; Parts of the prosecution case may be inadmissible; Be aware that an accused may wish to plead guilty for extraneous reasons such as fear or anxiety or a wish to get the case over;
  • 57. Appropriate Adult’s Role • Safeguarding the interests of the vulnerable person • Helping to ensure that justice is done and that untrue confessions are not made because of that vulnerability. • Knowing when to arrange for a solicitor to be present
  • 58. Voluntary confessions Most voluntary false confessions are the result of the person wanting notoriety. There are other reasons that people make voluntary false confessions: • Feelings of guilt over past transgressions. • The inability to distinguish fact from fiction. • To help or protect the real criminal.
  • 59. Complaint false confessions Compliant false confessions are those in which the person confesses: •To escape a bad situation. •To avoid a real or implied threat. •To gain some kind of reward.
  • 60. Internalised false confessions Internalised false confessions occur when, during the course of questioning, suspects come to believe that they did in fact commit the crime, because of what they are told by their interrogators. People who make internalised false confessions even though they have no recollection of the crime are usually: •Younger suspects. •Tired and confused by the interrogation. •Highly suggestible individuals. •Exposed to false information by interrogators.
  • 61. PACE, section 76The Police and Criminal Evidence Act 1984, s.76, provides that adisputed confession cannot be used in evidence against anaccused person unless the prosecution proves beyondreasonable doubt that it was not obtained:• ‘by oppression of the person who made it; or• in consequence of anything said or done which was likely, inthe circumstances existing at the time, to render unreliable anyconfession which might be made by him in consequencethereof.’
  • 62. PACE, s.78PACE section 78, provides that any evidence may be excluded if itappears to the court that— ‘having regard to all the circumstances, including thecircumstances in which the evidence was obtained, the admissionof the evidence would have such an adverse effect on the fairnessof the proceedings that the court ought not to admit it.’When an application to exclude the evidence is made, the court willapproach the application in two stages:Firstly, the court will examine ‘the circumstances in which theevidence was obtained.’Secondly, they will consider whether admitting the evidence wouldhave an adverse effect upon the fairness of the proceedings.
  • 63. Police station checklist 1 What do you know of the allegation and ‘the state of play’? Length of time already in custody Is it alleged that admissions have been made? Who is in charge of the investigation? Discuss the case with the officer: bail, evidence, plan of action, etc. When is it planned to interview ? Do they have enough evidence to charge? Check the custody record; medication, personal property, meals, prior interviews, when request for a solicitor was made. Medical examinations? Any co-accuseds? Family notified? Dont be pressurised or rushed. Evidence of bruising, physical harm.
  • 64. Police station checklist 2 What are the client’s social circumstances and background? Educational attainment and literacy. Ask them to read the rights notice to you. Ask them the meaning of basic terms on the leaflet. Can s/he sign forms? Mental illness. Is the client on any medication? When did s/he last see a doctor or go to a hospital? Drugs, alcohol, medication. Look for track-marks, orientation, signs of withdrawal. Forensic history. When was s/he last in a police station? Unfamiliar with the situation? Family. Any children? Who is looking after them? Does anyone know s/he is at the police station? Physical health.
  • 65. Police station checklist 3 What are the individuals psychological characteristics? Cognitive functioning Anxiety and panic? Claustrophobia? Assess the breaking strain: lack of access to family; no control over physical environment; not resting or eating properly; feeling intimidated; fearful for personal safety. Confusion? Individuals who falsely confess tend to become easily confused when placed under pressure, show lack of confidence in their own memory for the events, are susceptible to suggestion. Is the person consistently agreeing with you and deferential? Can you suggest contradictory courses of action? Attitude to the allegation. Is s/he preoccupied with matters other than establishing her/his innocence, e.g. bail, going home, the children. If so s/he will be particularly vulnerable to pressure and an aggressive line of questioning. Age. Embarrassment; asked that the family not be told?
  • 66. Police station checklist 4 What interviewing technique is being or was adopted? Minimising the seriousness of the offence Information-bluff tricks Confronting a suspect with [seemingly] damaging evidence Befriending, showing sympathy and understanding — this is particularly prone to induce the ‘coerced-internalised type of confession’. Persuading a suspect it is in their best interests to confess Playing on a suspect’s sense of guilt Mr Nice and Mr Nasty routine
  • 67. Police station checklist 5 Other general action in police station Reassurance and firming up client — representations as to fitness for interview, bail, making a formal complaint, representations on tape, details of cell, details for a bail application in court, details of sureties, etc Obtain properly qualified appropriate adult — ASW or CPN, etc Assess level of disability Take detailed notes and time them; you may be a witness Ask for FME assessment or, if possible, assessment by psychiatrist/psychologist Identify sources of anxiety. Contact family. Need to locate hospital bed ? Refer to CPS/caution/ no action ?
  • 68. Police station checklist REMEMBER Effect on admissibility and/or bail of confessions made in the presence of an appropriate adult and/or solicitor Not to judge exclusively on the plausibility of the confession (Confait case and the Fischer Enquiry) Most cases are won or lost in the police station Mental disorder may be a reason for refusing bail Probably, most false confessions not identified at the police station are not identified later or successfully challenged The case of John Perry.
  • 69. Part III 4 — BAIL OR CUSTODY?
  • 70. Bail — Imprisonable offencesDefendant need not be granted bail if:1. The court is satisfied that there are substantial grounds for believing that s/he would (a) fail to surrender to custody; (b) commit an offence; (c) interfere with witnesses or otherwise obstruct the course of justice.2. S/he was already on bail at the time of the charged offence. (Court still has a discretion to grant bail but need not regard accused as having a right to bail).3. The defendant should be kept in custody for their own protection (e.g., local anger).4. Because of lack of time, it is impracticable to obtain the information necessary to decide properly the above issues.5. S/he has already been bailed in the proceedings and has failed to appear.6. Adjournment for reports where the court believes it will not be practicable to complete the report without the defendant being in custody.7. Class A drug offence criterion.
  • 71. Bail Act considerations The nature and seriousness of the offence and the probable method of dealing with it; The character, antecedents, associations and community ties of the defendant (how much has s/he to lose by absconding?); The defendant’s past record with regard to answering bail and/or committing offences while on bail; The strength of the prosecution case.
  • 72. Prosecution appeals Prosecution appeals against bail The offence is imprisonable; and The prosecution made representations before bail was granted. The Crown Court must hear the appeal within 48 hours. Rehearing in the usual way.
  • 73. Part III 5 — THE 1983 ACT
  • 74. Part III Orders made during the course of the proceedings 35 Remand to hospital for a report 36 Remand to hospital for treatment 38 Interim hospital order Orders which bring the proceedings to an end 37 Hospital and guardianship orders 41 Restriction order 45A Hybrid Order (Hospital/Limitation Direction) Directions of the Secretary of State 47 Transfer to hospital of prisoners 48 Transfer to hospital of non-prisoners 49 Restriction direction
  • 75. Proceeding through the criminal courtsARREST (Arrest or divert) S.136?POLICE STATION (Charge or divert) Pt II?MAGISTRATES COURT (Custody orCROWN COURT S.35/36? hospital)TRIAL (Guilty or not guilty) Insane, fit?SENTENCE (Punishment or treatment?) S.37,41?IMPRISONMENT (Prisoner becomes ill) S.47?
  • 76. Persons awaiting trial or sentence TO WHOM THE SECTION APPLIES Persons awaiting trial / Immigration Act detainees / civil prisoners CRITERIA Mental disorder of a nature or degree which makes detention in hospital for treatment appropriate Appropriate treatment is available The individual is in urgent need of treatment s.48 Expedient to do so, having regard to the public interest & other circumstances EVIDENCE Reports from 2 doctors, one of whom s.12 approved RESTRICTIONS Mandatory in the case of persons awaiting trial DURATION Until the end of the criminal proceedings if necessary
  • 77. Sections 35 and 36 Section 35 Section 36Purpose Preparation of report Treatment (assessment)Compulsory No Y estreatment?Medical evidence 1 x s.12 doctor 2 doctors (1 s.12 app.)Ne e d f o r a be d Within 7 daysDuration of remands 28 days at a timeMaximum duration 12 weeksCou rt Crown court Crown Court only Mags’ court (not I/O) (not murder) Mental disorder of Suspected to suffer nature or degreeF o r m o f d i s o r de r from mental disorder making detention for treatment appropriate + appropriate treatmentPart II applies? No No
  • 78. Part III 6 — PLEA & TRIAL
  • 79. FITNESS TO STAND TRIAL
  • 80. Fitness for trial‘There are three points to be inquired into:first, whether the prisoner is mute of malice or not;secondly, whether he can plead to the indictment or not;thirdly, whether he is of sufficient intellect to comprehend thecourse of proceedings on the trial, so as to make a proper defence… and to comprehend the details of the evidence ... if you thinkthat there is no certain mode of communicating the details of thetrial to the prisoner, so that he can clearly understand them, andbe able properly to make his defence to the charge; you ought tofind that he is not of sane mind. It is not enough, that he mayhave a general capacity of communicating on ordinary matters.’ Pritchard (1836) 7 C&P 303, Per Alderson B
  • 81. Fitness for trial The issues are whether the defendant is capable of:  (1) understanding the charge;  (2) understanding the difference between a plea of guilty and not guilty and the course of the proceedings so as to make a proper defence;  (3) challenging a juror to whom he might wish to object;  (4) understanding the details of the evidence; and  (5) giving evidence. Criminal Procedure (Insanity) Act 1964 (as amended)
  • 82. C ases An attack of hysterical amnesia rendering it impossible for the defendant to remember what happened at the time of the events in respect of which he is charged has been held not to make him unfit to stand trial: R v Podola [1960] 1 QB 325, [1959] 3 All ER 418, CCA. The mere fact that the defendant is incapable of acting in his best interests is insufficient to make him unfit to stand trial: R v Robertson [1968] 3 All ER 557, [1968] 1 WLR 1767, CA.
  • 83. Procedure re unfitness  The Domestic Violence, Crime and Victims Act 2004 made a number of amendments to legislation governing unfitness to plead and insanity.  The judge, rather than the jury, now determines the issue of whether a defendant is fit to plead. Criminal Procedure (Insanity) Act 1964 (as amended)
  • 84. Points to note1. The issue of fitness to stand trial may be raised by the defence, the prosecution o r th e j u d g e .2. Where the defendant has raised the issue of unfitness he has the persuasive burden of proving this on the balance of probabilities3. It is for the court without a jury to decide on the evidence the issue of fitness to stand trial.4. The court has a discretion to postpone the question of fitness to be tried until any ti m e u p to th e o p e n i n g o f th e c a s e fo r th e d e fe n c e .5. The court may not make a determination on the question of fitness to be tried except on the written or oral evidence of two or more registered medical practitioners, at least one of whom is duly approved by the Secretary of State.
  • 85. Procedure if found unfitWhere it is determined by a court that the defendant is unfit to be tried (afinding of disability), the trial must not proceed or further proceed but it mustbe determined by a jury: on the evidence (if any) already given in the trial; and on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court to put the case for the defence,whether it is satisfied, as respects the count or each of the counts againstthe defendant, that he did the act or made the omission charged against himas the offence.The normal criminal standard of proof (beyond reasonable doubt) applies tothe question of whether the defendant did the act or made the omissioncharged.
  • 86. Disposal Where there have been findings that the defendant is under a disability (that is, unfit to be tried) and that he did the act or made the omission charged against him, the judge must make in respect of the defendant: (i) a hospital order (with or without a restriction order); (ii) a supervision order; or (iii) an order for his absolute discharge. Before making a hospital order, the court may make an interim hospital order. Where the offence to which the findings relate is an offence the sentence for which is fixed by law, and the court has power to make a hospital order, the court must make a hospital order with a restriction order (whether or not it would otherwise have power to make a restriction order).
  • 87. Magistrates’ courts  The CPIA provisions only apply to trials on indictment: R v Metropolitan Stipendiary Magistrate, ex p Aniifowosi (1985) 149 JP 748, DC.  There is no procedure expressly devised for the question of fitness to plead in relation to magistrates courts, including youth courts: see R (on the application of P (A Juvenile)) v Barking Youth Court [2002] EWHC 734 (Admin), [2002] 2 Cr App Rep 294.  However, where the defendant is suffering from mental disorder and appears unfit to plead, the magistrates may make use of their power under the Mental Health Act 1983 s 37(3) to make a hospital order without proceeding to a trial or conviction, if they are satisfied that he did the act or made the omission charged’.
  • 88. INSANITY
  • 89. Introduction Every person of the age of discretion is, unless the contrary is proved, presumed by law to be sane and to be accountable for his actions: R v Layton (1849) 4 Cox 149. The onus is on the defence to establish insanity at the time of the offence on the balance of probabilities. Where the jury finds insanity is made out in the Crown Court, the verdict takes the special form of not guilty by reason of insanity.
  • 90. M’Naghten RulesA defendant is not responsible for his act if it appearsthat, at the time of the act or omission giving rise tothe offence alleged:‘he was labouring under a defect of reason owing toa disease of the mind so as not to know the natureand quality of his act, or, if he knew this, so as not toknow that what he was doing was wrong.’ MNaghtens Case (1843)
  • 91. M’Naghten Rules The defendant had a ‘disease of the mind’ S/he was suffering from a ‘defect of reason’ as a resultS/he did not ‘know the nature S/he did not ‘know that it and quality of her/his act’ was wrong [i.e., unlawful]’
  • 92. C ases Where a defect of reason is self-induced, as where a person takes drink to give himself the courage to kill, he cannot rely on insanity at the time of the act if he was responsible when he formed the intent to kill: A-G for Northern Ireland v Gallagher [1963] AC 349 at 382, per Lord Denning. The defence of insanity is not available to a person who retains the power of reasoning, but who in a moment of confusion or absent-mindedness fails to use that power to the full: R v Clarke [1972] 1 All ER 219. There must be a malfunctioning of the mind caused by disease. A malfunctioning caused by an external factor such as alcohol, drugs or injury does not constitute a disease of the mind: R v Quick, R v Paddison [1973] QB 910, [1973] 3 All ER 347, CA.
  • 93. Available orders  A hospital order, with or without a restriction order  A supervision order  An order for absolute discharge.
  • 94. Supervision orders The current supervision order differs from the old supervision and treatment order in that it enables treatment to be given under supervision for physical as well as mental disorder. Furthermore, a supervision order cannot include a requirement for a person to receive treatment as an in-patient. It is designed to enable support and treatment to be given to the defendant to prevent recurrence of the problem which led to the offending. There is no sanction for breach of either the new supervision order or the existing supervision and treatment order; the orders simply provide a framework for treatment.
  • 95. Magistrates’ courts  The defence of insanity applies to cases tried in a magistrates court (R v Horseferry Road Magistrates Court, ex p K [1997] QB 23, [1996] 2 Cr App Rep 574, DC) but no provision is made for the equivalent of the special verdict.  Consequently, if the defence succeeds at a summary trial the defendant must simply be found not guilty.
  • 96. AUTOMATISM
  • 97. Introduction The ‘did not know the nature or quality of his act’ element of the insanity test is sometimes referred to as ‘insane automatism’. This leads to the case being disposed of under the CPIA. There is another (total) defence called (sane) automatism. This leads to an acquittal. The essential difference is that insanity/insane automatism is the product of internal forces, while (sane) automatism is the product of external forces, and is totally involuntary
  • 98. Automatism An act is done in a state of automatism if it is done by the muscles without any control by the mind (such as a reflex action, or a spasmodic or convulsive act) or is done during a state involving a loss of consciousness. In law automatism is limited to cases where there is a total destruction of voluntary control. Impaired or reduced awareness will not do. A person does not incur criminal liability for acts done in a state of automatism, as where he causes harm to someone during a mental blackout induced by an external factor such as violence or drugs, including anaesthetics, alcohol and hypnotic influences, or by forces outside his control, because such an act is involuntary on his part. There must be credible evidence of an external factor for example a blow to the head, skidding on ice, being stung by bees, an anaesthetic, which is unlikely to recur. They should have the feature of novelty or accident.
  • 99. C ases In v o l u n ta r y a c ts d o n e a f te r a b l o w to th e h e a d , o r reflex actions like being attacked by a swarm of bees, were examples given in the case of Hill v Baxter [1958]. In Whoolley [1997] sneezing was accepted as a defence to a charge of dangerous driving. The defendant had lost control of his HGV and crashed into a car in front, which in turn hit another car etc. In T [1990] it was accepted that post traumatic stress from a rape fell within the scope of automatism.
  • 100. Epilepsy, etc An assault committed during an epileptic fit, sleepwalking due to an internal cause, mental blackout due to cerebral tumour are all examples of internal causes, and hence insanity. Epilepsy looks like automatism but in law is insanity. Hyperglycaemia: If the defendant forgets to take his insulin and gets a high blood sugar level – resulting in a criminal act - this is seen as deriving from the diabetes and is classed as a disease of the mind/insanity. Hypoglycaemia: If the defendant takes too much insulin - resulting in a too low blood sugar and a consequential criminal act - the courts take the view that this is due to an outside source (the insulin) which does not fall within the M’Naghten Rules. This is classed as defence of non-insane automatism which – if successful – results in a full acquittal.
  • 101. DIMINISHED RESPONSIBILITY
  • 102. Murder and manslaughterThe mental element of murder, traditionally called maliceaforethought, may take the form of: An intention unlawfully to kill (express malice); or An intention unlawfully to cause grievous bodily harm, i.e. really serious bodily harm (implied malice).In cases of voluntary manslaughter, a person may be convicted ofmanslaughter rather than murder even though he has the maliceaforethought of murder, if he kills: under provocation; or whilst suffering from diminished responsibility by reason of abnormality of mind; or in pursuance of a suicide pact.
  • 103. Diminished responsibilityA person who kills another person may not beconvicted of murder if at the time: he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.
  • 104. ‘Abnormality of mind’‘Abnormality of mind’ means a state of mind so different from that ofordinary human beings that the reasonable man would term itabnormal; it appears to be wide enough to cover the minds activitiesin all its aspects, not only the perception of physical acts andmatters, and the ability to form a rational judgment whether an act isright or wrong, but also the ability to exercise will-power to controlphysical acts in accordance with that rational judgment. R v Byrne [1960] 2 QB 396 at 403.
  • 105. ‘Inherent causes’ Abnormality of mind induced by alcohol or drugs is not due to inherent causes: see R v Gittens [1984] QB 698. If, however, the consumption of alcohol has reached the stage that the defendants brain has been damaged so that there is gross impairment of judgment and emotional responses, or the defendants use of alcohol is involuntary because he can no longer resist the impulse to drink, the defence of diminished responsibility is available: see R v Tandy [1989] 1 All ER 267, 87 Cr App Rep 45, CA. In the case of alcohol dependency syndrome, the question is ultimately whether the defendants mental responsibility for his actions when killing the deceased was substantially impaired as a result of the alcohol consumed under the influence of the syndrome: R v Wood [2008] EWCA Crim 1305, [2008] All ER (D) 272 (Jun). Where the evidence is that the defendant was suffering from abnormality of mind due to two or more causes, one of which is a specified cause and the other of which is intoxication through drink or drugs, the defendant is not deprived of the defence of diminished responsibility merely because he would not (or might not) have killed if he had not been intoxicated. The question for the members of the jury is whether the defendant satisfied them that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts: R v Dietschmann [2003] UKHL 10, [2003] 1 AC 1209, [2003] 2 Cr App Rep 54.
  • 106. ‘Induced by disease or injury’ This phrase refers to organic or physical injury or disease of the body including the brain, while any inherent cause covers functional mental illness: R v Sanderson (1994) 98 Cr App Rep 325, CA. Battered womens syndrome, listed in the British Classification of Mental Diseases in 1994, can give rise to the defence of diminished responsibility: R v Hobson [1998] 1 Cr App Rep 31, CA.
  • 107. ‘Substantially impaired mental responsibility’ The expression mental responsibility for his acts points to a consideration of the extent to which the defendants mind is answerable for his physical acts, which must include a consideration of the extent of his ability to exercise will-power to control his physical acts: R v Byrne [1960] 2 QB 396 at 403. Such abnormality as substantially impairs his mental responsibility involves a mental state which in popular language a jury would regard as amounting to partial insanity or being on the borderline of insanity: R v Byrne supra at 404 and at 253. However, it is not appropriate in every case to direct a jury that the test of diminished responsibility is partial or borderline insanity. For example, it is not appropriate where the abnormality relied on cannot readily be related to any of the generally recognised types of insanity, as, for example, where the defendant pleads diminished responsibility occasioned by a depressive illness. Substantial means that the impairment of the defendants mental responsibility need not be total but must be more than trivial or minimal: substantial means something in between. The difficulty which the defendant had in controlling his conduct must have been substantially greater than would have been experienced by an ordinary person, without mental abnormality, in the circumstances in question: R v Simcox [1964] Crim LR 402, CCA.
  • 108. Procedure The onus is on the defence to prove that by reason of diminished responsibility the defendant is not liable to be convicted of murder, on the balance of probabilities. As a rule of practice, a plea of guilty of manslaughter on the ground of diminished responsibility should not generally be accepted; the issue of diminished responsibility should be left to the jury. Where such a plea is tendered, however, and the medical evidence plainly shows that the plea can properly be accepted, it is permissible for the court to accept it and thus avoid a trial for murder.
  • 109. PROVOCATION
  • 110. Provocation Provocation may reduce a charge of murder to one of manslaughter. The defence of provocation is available to an accomplice to murder. In general provocation is a defence when it causes the defendant to kill the person giving the provocation, but it may provide a defence even where it causes him to kill a third per s on. Note that a person may rely on self-induced provocation where his own conduct causes a reaction in another which in turn causes him to lose his own self-control.
  • 111. The legal testThe alleged provocative conduct — which may include spokenwords and need not be directed at the defendant himself — mustbe s uc h as : actually causes in the defendant a sudden and temporary loss of self-control, making her/him so subject to passion that he is not the master of her/his mind (the subjective t est ) ; was enough to make a reasonable person do as the defendant did (the objective test).
  • 112. Other points Where the evidence discloses a possible defence of provocation, the burden of proof remains on the prosecution, and it is not for the defendant to establish the defence. If the jury has a reasonable doubt whether or not there was provocation, the defendant is entitled to a verdict of manslaughter: R v Prince [1941] 3 All ER 37, 28 Cr App Rep 60, CCA. Where a person, owing to the taking of alcohol or drugs, makes a mistake of fact, he is entitled, for the purposes of the defence of provocation, to be treated as though the supposed fact was true; hence, if owing to his drunkenness he believed that another was about to make an attack upon him, the jury ought to take that into consideration in determining the issue of provocation.
  • 113. OTHER DEFENCES
  • 114. Other defencesAccidental killing Killing by misadventure or misfortune, where the act causing death is not unlawful or culpably negligent, is not a crime: 1 Hale PC 492; Fost 264, 282; R v Knock (1877) 14 Cox CC 1 at 2.Suicide pacts Where a person, acting in pursuance of a suicide pact between himself and another, kills the other or is a party to the other being killed by a third party, he is guilty of manslaughter. Aiding, abetting, counselling or procuring suicide or attempted suicide is also an offence.
  • 115. Part III 7 — SENTENCING
  • 116. 1 A RRE S T Sentencing 2 PO L IC E S TA TIO N Ordinary sentence (custodial or non –custodial) Community Order3 M A G IS TR A TE S C O UR T Guardianship Order (s.37) Hospital Order (s.37) 4 CR O WN CO UR T Restriction Order (s.41) Hospital & Limitation Directions 5 PL E A & TR I A L (s.45A) Post-sentence Transfers of prisoners under s.47 6 S E N TE N CE
  • 117. Principles of sentencing Retribution Deterrence Prevention Rehabilitation
  • 118. Community OrderA single generic community order with a range of possible requirements:1. Compulsory (unpaid) work;2. Participation in any specified activities;3. Programmes aimed at changing offending behaviour;4. Prohibition from certain activities;5. Curfew;6. Exclusion from certain areas;7. Residence requirement;8. Mental health treatment (with consent of the offender);9. Drug treatment and testing (with consent of the offender);10. Alcohol treatment (with consent of the offender);11. Supervision;12. A tte n d a n c e
  • 119. Mental health treatment With the offenders consent, the court may direct the offender to undergo treatment by or under the direction of a medical practitioner and or psychologist with a view to the improvement of the offenders mental condition. When deciding upon this requirement, the court must be satisfied that:1. on the evidence of a registered medical practitioner, the mental condition of the offender is such that it requires treatment, but does not need the intervention of a hospital or guardianship order;2. arrangements can be made for the treatment needed; and3. the requirement is suitable for the offender.
  • 120. Part III 8 — RESTRICTION ORDERS
  • 121. Restriction Orders Guardianship Hospital Order Order +/- Restriction Order
  • 122. s.41 Restriction Orders(1) CRITERIA FOR IMPOSITION(2) THE RESTRICTIONS Duration Fixed-term restriction orders (no longer possible) Restriction orders without limit of time Discharge Absolute discharge Conditional discharge and recall regime Discharge by rc or hospital managers under s.23 Termination of the restrictions Leave of absence under s.17 Absence without leave under s.18 Transfers under s.19
  • 123. The restrictions Discharge By Secretary of State or MHRT Absolute or subject to conditions Patient may be recalled Transfer Only with Secretary of State’s consent L e av e Only with Secretary of State’s consent Absence without leave Patient may be recaptured at any time
  • 124. Part III 9 — GUARDIANSHIP
  • 125. A guardian’s powers A Accommodation Attendance A Access A
  • 126. Guardianship orders In almost all respects, the effect of a guardianship order is no different from that of a guardianship application. However, the nearest relative has no power to discharge a guardianship order.
  • 127. Consent to treatment  Psychosurgery aside, Part IV of the Act does not apply to patients subject to guardianship.
  • 128. Absence without leave (section 18)  If the patient is absent without leave from the place where s/he is required to be, the guardianship will eventually cease if s/he is not taken into custody and does not return there of her/his own accord.
  • 129. Visiting LA must arrange for the patient to be visited at intervals of least every three months, and at least once a year by a s.12 doctor (reg. 13). LA must arrange for patients admitted to a hospital or nursing home to be visited, and also take such other steps ‘as would be expected to be taken by his parents’ (s.116).
  • 130. Renewals  6 months — 6 months — then 12 months at a time.  Renewals are the responsibility of the ‘appropriate medical officer’.  Form 31.
  • 131. DischargeA guardianship application remains in force until: It lapses due to not being renewed; It is revoked by a subsequent application or order (other than one made under s.2 or 4); It is discharged by the RC, the nearest relative, the LSSA or an MHRT.
  • 132. MHRTs APPLICATIONS & REFERENCESThe patient may apply once during each period.Section 37: The nearest relative may apply onceduring each 12-month period.No mandatory referencesDiscretionary references under s.67. TRIBUNAL POWERSMandatory ‘discharge’Discretionary ‘discharge’ReclassificationNo power to recommend transfer of the guardianship,or to discharge on a future date.
  • 133. Part III 10 — RISK MANAGEMENT
  • 134. What is risk? Strictly speaking, risk is simply the probability that an event will occur. However, the word is most often used to signify the probability of an unfavourable outcome. Here, the word signifies the idea that some individual is being exposed to a chance of loss or injury. This sense most closely approximates the word’s derivation (from risicare, to dare), which in turn comes from a Greek word meaning cliff.
  • 135. The cardinal principle Risk cannot be avoided. All decisions to discharge or not to discharge involve the assumption of a risk.
  • 136. Is there a right to manage risk? THE VALUE OF LIBERTY The purpose of invoking compulsory powers is not to eliminate that element of risk in human life which is simply part of being free to act and to make choices and decisions. THE VALUE OF JUSTICE Because justice is also highly valued, a risk of significant harm may be outweighed by a risk of injustice. Constraints imposed by the need for evidence. THE LINK BETWEEN THE DISORDER & THE RISK In some cases, others may be at risk from the individual quite independently of whether or not he is mentally disordered at a given moment in time.
  • 137. Clinical decision-making analysisThis involves identifying all of the available choices andthe potential outcomes of each. The professional shouldconsiders three aspects of the decision:1. CHOICES• The options available to the patient, e.g. default on medication/comply.2. CHANCES• The probabilities of outcome for each choice, e.g. relapse, remission, cure.3. VALUES• The desirability of the different outcomes.
  • 138. The four steps of risk assessment Four steps The assessment(1) Identifying the (1) The sex offender himself is the hazard (the hazard agent which may adversely affect health if the population is exposed to the hazard).(2) Characterising the (2) The risk is sexual activity with children, risk resulting in severe physical or psychological injury.(3) Assessing the (3) The extent to which children are exposed to likelihood of exposure this hazard (in terms of intensity, duration to the hazard and frequency) depends on the extent to which the patient’s movements are controlled(4) Estimating the risk (4) The risk of further similar offending must be high unless: (i) exposure of children to this hazard can be avoided; or (ii) the hazard is eliminated (his sexual interests and behaviour are reformed or controlled by pharmacological means).
  • 139. Prins’s Nine QuestionsHave past precipitants and stresses in the patients background beenremoved or sufficiently alleviated?What is the patient’s current capacity for dealing with provocation?Have the clues to the patient’s self image been explored at sufficientdepth?How vulnerable and fragile does the patient seem to be? Were thecircumstances of the original offence the last straw in a series ofstressful events, or does the individual see everybody else as hostile?Was the behaviour person-specific or aimed at society in general?Has the patient come to terms, in part if not in toto, with their offendingact?Have the details about the original offence been examined?Has the health care institution monitored the patient’s reaction to stressand temptation?Has it been borne in mind that the patient’s denial of the original offencemay reflect the truth?
  • 140. Some key variables Judgement Patterns Key variables Personality Situation
  • 141. Judgement A key issue in cases involving mental illness is often that of the patient’s judgement, the way in which they are likely to use their liberty if it is restored, and the patient is again free to make their own decisions, including to refuse supervision or medical advice. This is a difficult area because one is trying to predict the choices that this individual and other individuals will make.
  • 142. Patterns The purpose of taking any history is to look for patterns of events that have an explanatory or predictive value. If the mental disorder is the decisive factor which defines the individual’s potential for dangerous behaviour then the management of that disorder is also the management of the potential dangerousness. The problem is that the poorest predictors of violence include diagnosis and the severity of the disorder. Nevertheless you need an understanding of the medical condition and its effects on the patient’s mental state.
  • 143. Personality The underlying personality may be the determining factor in deciding whether the end result of an aggressive thought or fantasy is a violent act. One must ask what a person with client’s personality would do if the facts were as s/he believes them to be. Most people who are sexually interfered with, or whose spouses are unfaithful, or whose property is being stolen or food poisoned, do not idly let this happen. The patient’s affect and the internalisation of acceptable behaviour are also important.
  • 144. Situation The Butler Report observed that dangerous behaviour depends in the majority of cases not only on the personality of the person concerned but also on the circumstances in which they find themselves. It is crucial to assess the range of situations which may trigger the patient to behave violently given her/his personality, and the likelihood of exposure to them. In what circumstances would this person be likely to cause grave harm, and what is the strength or persistence of their inclination to do so in such circumstances? How likely is it that s/he will find her/himself in such a situation in the foreseeable future?
  • 145. Risk monitoring S S SSecurity Decisions about the degree of security required will be affected by the seriousness of previous aggression; the seriousness of the disorder; and the nature of the disorder. The aim should be for the minimum level of security which is compatible with good management.Supervision Supervision is the continuous assessment of risk with a readiness to intervene if the risk increases in some way. The assessment of the likely effectiveness of subsequent control must be a major consideration when the decision whether or not to release is taken. Supervision ‘cannot provide, and is not intended to provide, physical surveillance hour by hour and day by day, and it is evident that control over the personal relationships of a person who is subject to supervision entails particular difficulty’.Support Support entails a strong commitment to an individual, mutual trust, and an acceptance of him without acceptance of her/his behaviour. It means being available at inconvenient hours and making special arrangements, such as having an emergency admission policy.
  • 146. The Palmer Case FACTS In June 1994, out-patient x abducted, sexually abused, murdered, and mutilated a girl aged 4. He had previously threatened to murder ‘a’ child. The young girl’s mother claimed that the defendants had been negligent in failing to adequately evaluate, and treat, the real, substantial and serious risk that x would sexually abuse children. HELD Where it was alleged that a defendant was by virtue of its negligence responsible for the actions of a third party that required a special class of persons at risk from the third party, not an undefined category. In this case, the identity of x’s potential victims was not known. The risk to this young girl was not special or distinctive except for the fact that her killer lived in the same area. The court was not convinced that holding that the HA and NHS trust owed a duty of care would lead to an improvement in standards.
  • 147. The Clunis Case FACTS C had a history of mental illness and the defendants were responsible for his after-care. After killing a man in an unprovoked attack, he claimed damages for breach of a duty to treat him with reasonable care and skill and that this failure caused him to commit manslaughter, resulting in his imprisonment. HELD Public policy precluded the court from considering the claim unless it could be said that C did not know the nature and quality of his act. Because C had been found sane at his criminal trial (case of diminished responsibility) he had to be taken to have known that what he was doing was wrong.
  • 148. Part III 11 — HUMAN RIGHTS ACT
  • 149. Article 8 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
  • 150. Respect for private and family life PRIVATE LIFE FAMILY LIFE Personal life  Family ties Relationships  Cohabitation Sexual identity  Family visits/children Telephone calls, data  Protection from Health and injury domestic violence Sexual practices  Hospital transfers? Mail Personal office space
  • 151. Proportionality Is the national measure, or local policy or procedure, proportionate to the (legitimate) aim which the measure seeks to achieve? Is the measure actually appropriate? Does it have a wider effect than is strictly necessary? Does the measure impose an excessive burden on any individual?