Discuss some of the legal and ethical issues involved in sentencing mentally disordered offenders. Critically evaluate current legislation and legislative proposals in the light of these concerns

A mentally ill person can, in extreme cases, be a threat to society. Major criminals are often found to be mentally ill. This leads to public hazards as the individual engages into covert behaviour, trying to put in order what he or she sees as disordered and disrupted. There are many public and social problems imposed by the mental illness. These include incapacitation of individuals incapable of their own basic needs, so depressed as to the extent of suicide. The mentally ill has disrupted family relationships often due to burdens of care, disruption of ordinary day-to-day activities or threats of harm. They also have disruptive influences in society and may be public nuisances and may engage in offensive and antisocial behaviour posing threat to the lives and safety of others. The actual definition of mentally ill remains somewhat unclear, containing elements deriving from different periods in the development of psychological and psychiatric study. There is, therefore, concern that sane persons might find themselves stripped of certain basic rights. Some practitioners view mental illness as a myth that requires normative judgement for their assessment. ‘The risk is that the line which separates personal and political eccentricity from illness will become obscured.’ This essay discusses some of the ethical and legal implications of sentencing the mentally ill. Due to limitations in word count, it is not exhaustive.

There appears to be two questions to ask about a potentially dangerous person, the order being crucial. First, what is the risk? Risk should be ascertained without reference to whether the person suffers from a mental disorder or not, and in an appropriate judicial setting. If the risk is deemed unacceptable, a second question arises; what can be done, if anything, to reduce it? At this point treatment might be offered to the dangerous mentally ill person if this carries a likelihood of reduction of risk. A community rehabilitation order may contain a requirement that the offender undergo treatment; a supervision order may contain this requirement. If no ‘treatment’ or similar intervention exists, or it is rejected, then a custodial disposal will be necessary. This of course amounts to a generic dangerousness or preventative detention. The autonomy theory states that the same laws should apply to the mentally ill as to the rest of us. Either we have generic legislation applicable to us all or we have no preventative detention for anyone, including those with a mental disorder. From this view, it follows that the present laws are discriminatory against those with mental disorders.

The Powers of Criminal Courts (Sentencing) Act 2000 applies to all offenders, whether they are mentally ill or not. There is a grading system which endeavours to engender proportionality. However, s 80(2)(b) provides that if there is a particularly heinous crime the prison sentence may be longer in duration than strictly deserved, to protect the public. There is hence concern that there are longer than normal sentences for the mentally ill. There are now mandatory minimum sentences for repeated offenders, for example, section 109 requires mandatory life sentences for those convicted of second serious or violent offences, except in exceptional circumstances, which does not account for mental disorder. This was the case in R v Moses where a hospital order was the appropriate response but could not be issued because it was a second serious offence. This was also the situation in R v Newman, where mental illness was denied status as an exceptional circumstances, thus the offender was convicted to life imprisonment. This attitude towards second offences is likely to make the situation of prison overcrowding worse. In light of the problems posed in this area, Laing speculated that mentally disordered offenders should rely on unfitness to plead or insanity, to overcome the problems ingrained in section 109. There is some credibility in this view and it is provided by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.
Section 37 of the Mental Health Act 1983 provides that, where a mentally ill person is convicted of an offence which is punishable with imprisonment, the court may make an order for his admission to, and detention in, a mental hospital. The order will lapse after six months but may be reviewed for a further six months and thereafter for periods of one year at a time. There is no limit to the total length of detention in hospital. Section 38 of the Act also makes provision for interim hospital orders, which may last for twelve weeks, can be renewed for twenty eight day periods but cannot exceed six months. A restriction order may be imposed in conjunction with the hospital order, under section 41 of the Act. The effect of this order is that the offender cannot be discharged without the permission of the Secretary of State or the Mental Health Review Tribunal. The period may be for a fixed period or an indeterminate period but can only be made where it is necessary to protect the public from serious harm. There is also the possibility of linking the hospital order with a limitation direction. Before such an order is imposed, two medical practitioners must make it clear to the court that the offender is suffering from a psychopathic disorder, that it is of the nature which makes it appropriate for him to be detained in hospital and that the treatment the patient will receive will alleviate or prevent a deterioration of his condition. If the defendant ceases to need the treatment, he or she will be returned to prison. If the patient is in hospital when the sentence expires, he or she will not be subject to the restriction and will remain in hospital as if s 37 applies. Another option is the guardianship order, where certain powers are conferred in respect of the defendant on an authority or person, in relation to s 40(2). These powers include determining where the defendant will reside and the power to require him or her to undergo treatment and education for example. The requirements are the same as those for the hospital order, although the defendant’s disorder need not be treatable. These orders may last for twelve months.

Some regard the treatment of persons who are both dangerous and mentally ill in hospital as a kindly alternative to their detention in prison. Indeed, since the re-offending rates for this group are no higher than those for any other offender, their potential risk to society should not be the deciding factor, especially since the divergence in re-offending depends on differences in characteristics, intensity and quality of supervision and treatment with regard to access to the community. However, the fact that only 1% of all disposals between 1992 and 1996 were hospital orders with only a quarter of these pertaining to restriction orders needs addressing as the confinement of the mentally ill for their own health and safety in hospital seems defensible. Although this may appear to be a blatant violation of the principle of equal treatment, since ordinary citizens are never forcibly treated except in emergency situations, it seems justifiable to restrict liberty for the welfare of the restricted individual than it is to apply the same restrictions for the benefit of others.
In Scotland the policy for the health, social work and related services for mentally disordered offenders has been outlined aiming to co-ordinate care and support for the benefit of the individual and to ensure public safety. The aim of the public safety policy from the mentally ill is to provide care under conditions of appropriate security with due regard for public safety to have regard to quality of care and proper attention to the needs of individuals, and where possible provide care in the community rather than institutional settings, as well as care that maximises rehabilitation and the individual’s chance of an independent life. According to this Scottish policy, the mentally ill subject is an individual who is entitled to treatment, and one who needs to be given due respect of their rights. The issue of the rights of the mentally ill leads to the clinical and public protection issues. There is likely to be a lot of cases where social and clinical facilities and treatments are required within different settings and with varying levels of security so that the individual may be appropriately placed. There is a need to give due heed to the individual needs for the facilities within the hospitals, prisons and some in the community. The recent reforms of the UK government in the Mental Health Act have been merged with the repressive legislation to lock up people with untreatable personality disorders. There needs to be a separate identity and recognition of the two.

The customer has provided a useful bibliography to carry out this essay but due to space limitations, all areas could not be adequately explored. For further reading, the customer should consult the Criminal Procedure (Insanity and Unfitness to Plead) Act. Consultation of the ‘special verdict’ or Trial of Lunatics Act 1883 is also worth attention. The book entitled, ‘Mental Health Law, Policy and Practice,’ by Bartlett and Sandland provides a good source. Pages 266 to 287 are especially relevant.

Bibliography

BBC News, Concern Over Mental Health Proposals, 2002

Ashworth, Sentencing & Criminal Justice, 2000

B. Bleyer, Caring for the Mentally Ill, http://www.lihistory.com/6/hs620a.htm, 2002

Bartlett and Sandland, Mental health law policy and practice, 2nd edition, OUP, 2003

T. Campbell, The Rights of the Mentally Ill, in Campbell, Goldburg, Mclean and Mullen (eds), Human Rights: From Rhetoric to Reality, (Oxford: Basil Blackwell, 1986)

C. Dyer & J. Carvel, Detention of Mentally Ill: Unworkable and Racist, The Guardian, 2002

Easton & Pieper, Sentencing & Punishment, 2005

D. Feldman, Civil Liberties and Human Rights, (2nd edition., 2002, OUP)

Hungerford-Welch, Criminal litigation and sentencing, 6th edition, Cavendish, 2004

Laing, 1997, The likely impact of mandatory and minimum sentences on the disposal of mentally disordered offenders, Journal of Forensic Psychiatry vol 8(3)

R,Morgan and R. Reiners eds The oxford handbook of criminology(2002), 3rd edition

Solomka, 1996, The role of psychiatric evidence in passing longer than normal sentences, Journal of Forensic Psychiatry, vol 7(2)

Street, The restricted hospital order: from court to the community, Home Office Research Study 186

Wilson,D&Mccabe,S.(2002)How HMP Grendon works in the Words of those undergoing therapy.

The Impact of Corrections on Reoffending, Harper & Chitty, Home Office Research Study 291 at 23

R v Moses [1996] 2 Cr App R 407
R v Newman [2000] Cr App R 227

Law Society says mental health bill ‘unworkable,’ The Guardian, 27.09.02

Mental Health Act 1983

Draft Mental Health Bill 2002

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