The Dangers Of Diversion: Advising Mentally Disordered Offenders On The Practical Effect Of Compulsory Detention Under The Mental Health Act 1983

Article by Richard Saynor, pupil at 6 Kings Bench Walk

Abstract

This article advances the following four points:

(1) That most mental health disposals are initiated at the request of the mentally disordered offender ('MDO') or their representative.

(2) That there is little information about the practical effect of court ordered compulsory detention under the Mental Health Act 1983 ('the Act')

(3) That after collating the existing information it appears that hospital orders made under s.37 of the Act last for an average of two years, whilst those orders that are also restricted under s.41 of the Act last an average of nine to twelve years.

(4) Accordingly, where a MDO has only committed a minor index offence, it will often be the case that an order of compulsory detention under the Act will operate as a disproportionately severe response. Therefore, MDOs in this position may be better advised to seek a penal disposal and advance their mental disorder as mitigation.

Introduction

The prevailing view within the Criminal Justice System is that MDOs who are afflicted with a disorder at the time of the offence and/or at the time of trial, should be dealt with differently to ordinary offences, namely via diversion to the NHS through the Mental Health Act. However, some forms of diversion, such as compulsory detention in hospital, can have significant implications for MDO's, the most important of which is that it can often act as either a disproportionately mild or disproportionately severe response, with MDOs being made subject to compulsory detention and treatment that is either much shorter or much longer than the penal sanction that would have been imposed on non-disordered offenders committing the same offence.

There is extremely limited data on the practical impact of court orders imposing compulsory detention under the Act. However, such information is important because the vast majority of diversion is initiated at the request of the MDO's representative,1 and as only an average of forty five MDOs are deemed to be too unwell to provide instructions each year,2 it is presumed that the remainder have either agreed or acquiesced to this course. Therefore, this article draws together the limited information that exists, and some new information from the South London NHS Trust, so that MDOs can be better advised on the practical effect of compulsory detention.

s.37 Hospital Order

Hospital orders are provided for by s.37 of the Act. The criteria for imposition are laid out in flowchart one. An average of four hundred s.37 orders have been imposed every year for the past two decades.3

Technically, s.37 hospital orders only last for six months from the date of sentence, but as the psychiatrist has the power to renew for a further six months, and thereafter for periods of up to a year, with there being no maximum time limit, hospital orders are...