Offenders who have a mental disorder may be treated differently from other offenders. They may, for example, be found ‘unfit to plead’ as a defendant. In this case, they will not face a full trial. If a mentally disordered offender is tried and convicted, they may be sent to hospital instead of prison.
As a member of the victim’s family, you may find this lenient. However, it is important to remember that strict controls apply to such offenders, and every care is taken to ensure that they do not become a danger to the public again.
Knowing how offenders are convicted.
If the offender has a mental disorder, the court may choose not to send them to prison. Instead, they may be admitted to hospital under the Mental Health Act 1983. For this to happen, there must be strong medical evidence of the offender’s condition and that they need treatment in hospital.
If the court judges that the offender is a danger to the public, it can put special restrictions on an offender in hospital. Anyone kept in hospital under these arrangements is known as a ‘restricted patient’.
Restricted patients cannot be given temporary leave from hospital or be transferred to another hospital without the Secretary of State’s permission. Even if the defendant is found not guilty of the crime, the court can still order that they are admitted to hospital if it considers that the offender was mentally disordered at the time.
Understanding that an offender can be unfit to plead.
At the trial, the defendant may be found unfit to plead. This can happen if there is medical evidence that they are unable to understand the legal process or to instruct a lawyer. In that case, the jury will hear a ‘trial of the facts’ to decide whether the person committed the crime.
If the conclusion is yes, the court may not find the offender guilty, but it can order the defendant to be admitted to hospital and it may also put a restriction on the offender.
This is not final, however. The defendant can still be sent for a full trial at any time if their condition improves.
Understanding that offenders may be discharged.
Being sent to hospital is not like a prison sentence. There is no set minimum or maximum time for which offenders must be kept in hospital.
However, for a patient to be discharged, doctors must advise that their treatment has been successful and that the offender can live safely in the community again. There must be a reduced risk of repeat offending, and the patient must also understand what they have done and what
effect it has had on others, including the victim and their families. Discharge may also be subject to conditions under a Community Treatment Order.
Only the Secretary of State or the First Tier Tribunal (Mental Health) can order the discharge of a restricted patient. However, if this happens, the offender will have conditions placed on them, such as being supervised – usually by a psychiatrist, community social worker or community psychiatric nurse.
The supervisor can immediately send the patient back to hospital if necessary and should constantly assess and review the level of risk to the patient and the public.
Your right to information.
As a bereaved family member, you are entitled to know if the offender is being considered for discharge and to ask for conditions to be applied to their release for your own protection.
If the offender is a member of your own family and is likely to have contact with family members, you may also be involved in the arrangements for their release. Otherwise, the patient’s progress in hospital and any mental health tribunal proceedings are confidential and only basic non- medical information will be available.
If you want to request information or make representations, you should first contact the Victim Liaison Officer (VLO) who will talk to the relevant authorities or advise you on how to proceed.
The First Tier Tribunal (Mental Health)
Both restricted and non-restricted patients can apply for a review of their detention to the First Tier Tribunal (Mental Health) – formerly the Mental Health Review Tribunal.
All patients can do this after the first six months of detention and once a year after that. If a restricted patient has not made an application after three years, the Secretary of State will automatically refer the case to the tribunal.
The tribunal consists of three independent members:
• a president who must be a lawyer (in restricted patient cases, the president must be a judge)
• a doctor
• a lay person. To decide whether to discharge the patient, the tribunal has to take into account:
• whether the patient is still suffering from a mental disorder
• whether the disorder is so serious that the patient still needs to be kept in hospital for medical treatment
and if so:
• whether the patient’s health or safety, or the health or safety of other people, depends on them staying in hospital.
Before the hearing, the tribunal’s doctor will examine the patient. The tribunal will also consider evidence from those involved in the patient’s care and management.
If the patient is restricted, the Ministry of Justice will also be involved.
Your rights in the tribunal process
Hearings generally happen in private as the conditions that the tribunal has to consider are mainly clinical.
As a bereaved family member, you will not normally be able to attend – unless the president decides that you should be invited. However, in restricted cases, your VLO may be able to represent you. They will also be informed if a discharge is being considered, and about the details of the discharge.
In non-restricted cases, you may be represented through the hospital managers and they will also advise you about the decision on discharge.
For more information about your rights in this process,
speak to your VLO.
Write to the Tribunal:
England:
Head of Secretariat
5th Floor
Leicester LE1 8BN
Wales:
Head of Secretariat
Mental Health Tribunal for Wales
4th Floor
Crown Buildings
Cardiff CF10 3NQ
Being aware that prisoners may be transferred to psychiatric hospitals.
Offenders who are sent to prison on a life sentence can also be transferred to hospital for psychiatric treatment at any time if the Secretary of State issues a warrant or transfer direction.
After treatment, they may be returned to prison to complete the sentence. However, if the prisoner has become eligible for parole, the Parole Board will consider this before the offender is discharged from hospital.