1. Mental disorder & the Criminal
Law: England & Wales
Professor Anselm
Eldergill

2. Part III
1 — MHA 2007

3. DEFINITIONS

4. Definitions
Medical 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 amended
A 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 y
longer-term 6 month orders if two doctors necessary to show that the patient suffers
agree 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 disorder
By section 1(3), no one may be dealt with
as 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 or
persistent disorder or disability of mind … disability of mind.’
which results in abnormally aggressive or
seriously irresponsible conduct on the part
of the person concerned.”
No one may be dealt with under the Act as
having a psychopathic disorder by reason No one may be dealt with under the Act as
o 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 “any
disorder or disability of the mind”. Relevant professionals should
determine whether a patient has a disorder or disability of the
mind in accordance with good clinical practice and accepted
standards of what constitutes such a disorder or disability.
3.3 Examples of clinically recognised conditions which could fall
within 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 1
1.(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 of
subsection (2) above.
(4) In subsection (2A) above, “learning disability” means a state of arrested or incomplete
development of mind which includes significant impairment of intelligence and social
functioning.

13. ‘Medical treatment’
145.–(1 ) In this Act, unless the context otherwise
requires … “medical treatment” includes nursing,
[OUT: and also includes care, habilitation and
rehabilitation under medical supervision],
psychological intervention and specialist mental
health habilitation, rehabilitation and care;
145.–(3) Any reference in this Act to medical
treatment, in relation to mental disorder, shall be
construed as a reference to medical treatment the
purpose of which is to alleviate, or prevent a
worsening of, the disorder or one or more of its
symptoms 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: AMHPs
114 Approval by local social services authority
(1) A local social services authority may approve a person to act as an
approved mental health professional for the purposes of this Act.
(2) But a local social services authority may not approve a registered
medical practitioner to act as an approved mental health professional.
(3) Before approving a person under subsection (1) above, a local
social services authority shall be satisfied that he has appropriate
competence in dealing with persons who are suffering from mental
disorder.

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 clinician
The responsible clinician has overall responsibility for the case but may not be in
control 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 diagnosis
is anti-social personality disorder. His case comes
before a tribunal. He argues that the treatment he is
receiving in a private hospital 150 miles from his
home in London does not constitute appropriate
treatment. It is not culturally appropriate, there is no
psychological input, he has no contact with family
and friends and it is too far from home. Furthermore,
it is not medical treatment because the purpose of his
detention is simply public protection, not alleviating
or preventing a worsening of his condition.

25. But …..
6.12 Medical treatment need not be the most
appropriate treatment that could ideally be made
available. Nor does it need to address every
aspect of the person’s disorder. But the medical
treatment available at any time must be an
appropriate response to the patient’s condition
a 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 III
Offender 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 III
Offender provisions
No longer limited to
Transfer from prison to persons suffering from
hospital for treatment mental illness or severe
pre-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 conditions
A 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 period
24.28 In general, SCT patients recalled to hospital are subject to sections 58 and 58A in
the 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 Court
Magistrates’ courts County Courts
CRIMINAL COURTS C I VI L C O U R TS

49. 1 A RRE S T
Proceeding 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 only
offences 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 76
The Police and Criminal Evidence Act 1984, s.76, provides that a
disputed confession cannot be used in evidence against an
accused person unless the prosecution proves beyond
reasonable 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, in
the circumstances existing at the time, to render unreliable any
confession which might be made by him in consequence
thereof.’

62. PACE, s.78
PACE section 78, provides that any evidence may be excluded if it
appears to the court that
— ‘having regard to all the circumstances, including the
circumstances in which the evidence was obtained, the admission
of the evidence would have such an adverse effect on the fairness
of the proceedings that the court ought not to admit it.’
When an application to exclude the evidence is made, the court will
approach the application in two stages:
Firstly, the court will examine ‘the circumstances in which the
evidence was obtained.’
Secondly, they will consider whether admitting the evidence would
have 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?
 Don't 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 individual's 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 offences
Defendant 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 courts
ARREST (Arrest or divert) S.136?
POLICE STATION (Charge or divert) Pt II?
MAGISTRATES COURT (Custody or
CROWN 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 36
Purpose Preparation of report Treatment
(assessment)
Compulsory No Y es
treatment?
Medical evidence 1 x s.12 doctor 2 doctors (1 s.12 app.)
Ne e d f o r a be d Within 7 days
Duration of remands 28 days at a time
Maximum duration 12 weeks
Cou rt Crown court Crown Court only
Mags’ court (not I/O) (not murder)
Mental disorder of
Suspected to suffer nature or degree
F o r m o f d i s o r de r from mental disorder making detention for
treatment appropriate +
appropriate treatment
Part 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 the
course of proceedings on the trial, so as to make a proper defence
… and to comprehend the details of the evidence ... if you think
that there is no certain mode of communicating the details of the
trial to the prisoner, so that he can clearly understand them, and
be able properly to make his defence to the charge; you ought to
find that he is not of sane mind. It is not enough, that he may
have 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 note
1. 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 probabilities
3. 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 unfit
Where it is determined by a court that the defendant is unfit to be tried (a
finding of disability), the trial must not proceed or further proceed but it must
be 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 against
the defendant, that he did the act or made the omission charged against him
as the offence.
The normal criminal standard of proof (beyond reasonable doubt) applies to
the question of whether the defendant did the act or made the omission
charged.

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 Rules
A defendant is not responsible for his act if it appears
that, at the time of the act or omission giving rise to
the offence alleged:
‘he was labouring under a defect of reason owing to
a disease of the mind so as not to know the nature
and quality of his act, or, if he knew this, so as not to
know that what he was doing was wrong.’
M'Naghten's 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 result
S/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 manslaughter
The mental element of murder, traditionally called malice
aforethought, 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 of
manslaughter rather than murder even though he has the malice
aforethought 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 responsibility
A person who kills another person may not be
convicted 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 of
ordinary human beings that the reasonable man would term it
abnormal; it appears to be wide enough to cover the mind's activities
in all its aspects, not only the perception of physical acts and
matters, and the ability to form a rational judgment whether an act is
right or wrong, but also the ability to exercise will-power to control
physical 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 defendant's brain
has been damaged so that there is gross impairment of judgment and emotional
responses, or the defendant's 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
defendant's 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 women's 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 defendant's 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 defendant's 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 test
The alleged provocative conduct — which may include spoken
words and need not be directed at the defendant himself — must
be 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 defences
Accidental 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 Order
3 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 Order
A 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 offender's 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 offender's 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; and
3. 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. Discharge
A 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 & REFERENCES
The patient may apply once during each period.
Section 37: The nearest relative may apply once
during each 12-month period.
No mandatory references
Discretionary references under s.67.
TRIBUNAL POWERS
Mandatory ‘discharge’
Discretionary ‘discharge’
Reclassification
No 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 analysis
This involves identifying all of the available choices and
the potential outcomes of each. The professional should
considers 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 Questions
Have past precipitants and stresses in the patient's background been
removed 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 sufficient
depth?
How vulnerable and fragile does the patient seem to be? Were the
circumstances of the original offence the last straw in a series of
stressful 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 offending
act?
Have the details about the original offence been examined?
Has the health care institution monitored the patient’s reaction to stress
and temptation?
Has it been borne in mind that the patient’s denial of the original offence
may 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.

145. 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?

146. Risk monitoring S
S
S
Security 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.

147. 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.

148. 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.

149. Part III
11 — HUMAN RIGHTS ACT

150. 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.

151. 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

152. 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?