Forensic psychiatry for student nurses

by Terry Prescod Practice Innovation Nurse

The Mental Health Act

Remand to Hospital by the Courts

Section 35

Summary

This Section allows a Court to send a person to hospital for a report to be prepared on his/her mental condition, instead of remanding the person to prison. The purpose of Section 35 is assessment and preparation of a report only, in contrast to Section 36 which allows for treatment.

Conditions

The Court has to be satisfied:

  • that there is reason to suspect that the accused person has at least one of the four types of mental disorder, on the basis of evidence supplied by one doctor (who must be approved under Section 12) and
  • that it would not be practicable for the necessary report to be prepared if the person were allowed bail and
  • that a specific hospital is willing and able to admit the person within 7 days.

Circumstances

The person concerned must have been charged with an offence which could lead to imprisonment and:

  • will be before a Crown Court, but not yet have been tried / convicted / sentenced or otherwise dealt with or
  • will have been convicted by a Magistrates Court or
  • will be before a Magistrates Court, but not have been convicted, and either:
    • the Court is satisfied that that the person did what they are accused of doing or
    • the person agrees to a Section 35 remand being made.

Section 35 cannot be used in the case of a person who has been convicted of murder, where the Court has to impose a sentence of life imprisonment in all cases.

Duration

The initial period is up to 28 days. This period can be extended by the Court for not more than 28 days at a time, up to a maximum of 12 weeks.

Notes

The person remains under the control of the Court. He/she cannot be discharged under Section 23 and has no rights of appeal.

The consent to treatment arrangements of Section 57 and Section 58 do not apply to people remanded under Section 35. In other words, people remanded under Section 35 do not have to accept medication or other treatment against their will.

Where compulsory treatment may be required, the Crown Court only, has the option of using Section 36.

Remand to Hospital by the Courts for Treatment

Section 36

Summary

This Section allows a Crown Court (not a Magistrates Court) to send a person to hospital for treatment, instead of remanding the person to prison. This is in contrast to a Section 35 remand which is for a report to be prepared on the person's mental state, and which does not allow for compulsory treatment.

Conditions

The Court has to be satisfied:

  • that the accused person has mental illness or severe mental impairment, on the basis of evidence supplied by two doctors (at least one of whom must be approved under Section 12) and
  • that a specific hospital is willing and able to admit the person within 7 days.

Circumstances

The person concerned must be before a Crown Court, charged with an offence which could lead to imprisonment. However, Section 36 cannot be used in the case of a person who has been convicted of murder, where the Court has to impose a sentence of life imprisonment in all cases, nor can it be used for someone who has been accused of murder (unlike Section 35).

Duration

The initial period is up to 28 days. This period can be extended by the Court for not more than 28 days at a time, up to a maximum of 12 weeks.

Notes

The person remains under the control of the Court. He/she cannot be discharged under Section 23 and has no rights of appeal.

People remanded under Section 36 may be treated compulsorily - the consent to treatment arrangements of Section 57 and Section 58 apply.

Hospital Orders Made by the Courts

Section 37

Summary

This Section allows a Court to send a person to hospital for treatment (or to make the person subject to Guardianship), when otherwise the outcome might have been a prison sentence. The Order is instead of imprisonment, a fine, or probation.

Conditions

The Court has to be satisfied:

  • that the person has at least one of the four types of mental disorder, on the basis of evidence supplied by two doctors (with both doctors agreeing on at least one of the types) and
  • that the mental disorder is of a nature or degree which makes it appropriate for the person to be detained in hospital for medical treatment (and, in the case of psychopathic disorder or mental imapirment, that the treatment is likely to alleviate or prevent a deterioration of the person's condition) and
  • that making a Section 37 Order is most suitable way of dealing with the person, bearing in mind all relevant matters and
  • that a specific hospital is willing and able to admit the person within 28 days.

Circumstances

The person concerned:

  • will have been convicted by a Crown Court of an offence which could be punished with imprisonment (except in the case of murder, where the Court has to impose a sentence of life imprisonment in all cases) or
  • will have been convicted by a Magistrates Court of an offence which could be punished with imprisonment or
  • may not have been convicted, but may be before a Magistrates Court charged with an offence which could lead to imprisonment if the person were convicted. Without convicting the accused person, the Court can nevertheless make a Hospital Order under Section 37 if:
    • the person has mental illness or severe mental impairment (the other two forms of mental disorder by themselves do not qualify) and
    • the Court is satisfied that that the person did what they are accused of doing.

Duration

The initial period is 6 months, beginning on the date of the Order. The Order can be renewed under Section 20, for 6 months, and then annually.

Notes

A Section 37 Hospital Order made by a Crown Court can, in some circumstances, be made subject to Restrictions on discharge. Otherwise, once in place, it is very like Section 3, except that:

  • the Nearest Relative cannot discharge the patient
  • an appeal cannot be made to the Mental Health Review Tribunal during the first six months.

At least one of the doctors giving evidence to the Court must be approved under Section 12.

Guardianship Under Section 37

Section 37 also allows a Court to place someone under Guardianship. The arrangements are in essence the same as for a Hospital Order, with appropriate amendments. In particular, the Court must be satisfied that:

  • the person's mental disorder is of a nature or degree which warrants Guardianship being used
  • the the local social services authority, or other person named, is prepared to act as guardian.

Interim Orders under Section 38

Prior to deciding whether to make a Hospital Order under Section 37 or whether to deal with an offender in some other way, a court may decide to make an inertim - or temporary - Hospital Order. The person concerned must have been convicted of an offence (other than murder) for which imprisonment is a possible penalty, and the Court must be satisfied that:

  • the offender has one of the four forms of mental disorder
  • there is reason to suppose that it may be appropriate for a Section 37 Hospital Order to be made
  • that a specific hospital will admit the person within 28 days.

The Interim Order can be for up to 12 weeks initially. It can be renewed by the Court for periods of 28 days at a time, up to an overall maximum of 12 months in total.

The person remains under the control of the Court. He/she cannot be discharged under Section 23 and has no rights of appeal.

 

Section 41: Restriction Orders

Summary

Where a Crown Court makes a Section 37 Hospital Order, it may also impose restrictions on the patient's discharge. In addition to certain limitations inherent in Section 37 (the Nearest Relative cannot discharge, and there can be no appeal to the Mental Health Review Tribunal in the first 6 months), the Restrictions are:

  • leave may only be granted with the agreement of the Secretary of State (in practice, the Home Office) and the Home Office, in addition to the Responsible Medical Officer, can recall the person from leave.
  • transfers require the Home Office's agreement
  • discharge under Section 23 requires the Home Office's agreement.

Circumstances

The person must have been convicted of an offence for which imprisonment is a possible penalty.

Conditions

The Court must be satisfied that a Restriction Order is necessary:

  • for the protection of the public from serious harm
.... bearing in mind:
  • the nature of the offence
  • the person's criminal history
  • the risk of the person committing further offences if allowed to go free.

Duration

The duration of the Restriction Order, and associated Hospital Order, is determined by the Court and is often indefinite. When a Restriction Order is in place, the Hospital Order does not periodically expire, and therefore does not require renewing under Section 20.

Where someone is subject to a Restriction Order, the Responsible Medical Officer must provide the Home Office with a report on the patient's progress, every 12 months (or more frequently if the Home Office requests this). The Secretary of State / Home Office may:

  • end the Restriction Order (but leave the associated Hospital Order in force)
  • absolutely discharge the patient, in which case both the Restriction Order and the Hospital Order come to an end
  • make a conditional discharge, in which case the person is discharged from hospital, subject to conditions, and can be recalled to hospital.
Someone on a Restriction Order can appeal to the Mental Health Review Tribunal which has similar powers as those of the Home Office listed above.

Notes

A Restriction Order cannot be made by a Magistrates Court, but once someone is convicted, a Magistrates Court can refer the case to the Crown Court with a view to a Restriction Order being made.

Sections 47/48/49: Transfer from Prison to Hospital

People Serving Prison Sentences [Section 47]

Summary and Conditions

The Home Office, using powers given to the Secretary of State, can make a Transfer Direction, to transfer a prisoner to hospital for treatment, where:

  • the prisoner has a least one of the four types of mental disorder, on the basis of reports from two doctors (at least one of whom must be approved under Section 12) and
  • the mental disorder is of a nature or degree which makes it appropriate for the person to be detained in hospital for medical treatment and
  • (in the case of psychopathic disorder or mental impairment only) that such treatment is likely to alleviate or prevent a deterioration in the prisoner's condition and
  • the Home Office is of the opinion that a transfer is expedient in the circumstances, having regard to the public interest.

Effect, Duration and Discharge

A Transfer Direction made under Section 47 alone, has the same effect as a Section 37 Hospital Order made by a Court. However, in practice, a Transfer Direction will usually be subject to a Restriction Direction under Section 49.

The Transfer Direction may come to an end:

  • 14 days after it is made, if the transfer to hospital does not in fact take place in this period
  • in the same way as a Section 37 Hospital Order, if no Restriction Direction is made, and this may mean the person being detained in hospital for longer than the period of their prison sentence.

People Not Serving Prison Sentences [Section 48]

Section 47 makes provision for prisoners serving a sentence to be transferred to a hospital. Section 48 simply extends this to prisoners who have not been convicted, such as:
  • people remanded in custody by a magistrates' court
  • people suspected of being illegal immigrants.

The additional / different conditions are that:

The Transfer Direction comes to an end when the Court makes its final decision about the outcome of the case.

Restriction Directions under Section 49

A Restriction Direction prevents discharge being made under Section 23, working in the same way that a Section 41 Restriction Order restricts the discharge of someone detained under Section 37. It can be used in conjunction with a Section 47 Transfer Direction, or one made under Section 48 where the person has been remanded in custody by a Court.

In the case of people who have been sentenced and are subject to Sections 47&49, the Restriction Direction (but not necessarily the Transfer Direction) will come to an end at the earliest date upon which the person could have been released from prison if he/she had not been transferred to hospital. If the Home Office is informed, before this date (by the Responsible Medical Officer, another doctor, or the Mental Health Review Tribunal) that the person no longer needs treatment, or that there is no effective treatment to be given, the person can be:

  • returned to prison, or anywhere else the person might have been detained had they not been transferred to hospital
  • released under any arrangement which could apply if the person were returned, but without actually returning them.
Just to note the above sections do take sometime before you have a full understanding of them . Please be patient and use as a reference guide until you are fully confident that you understand and  able apply them. Practitioners need to be extremely careful when receiving papers in the case of transfers whether internal or external. Also be careful that documentation is cear,dated and signed.
 
Besides the sections listed above there are other sections which are also extremely important within forensic services .The section 117 commonly referred to as aftercate planning and the section 17 , planned leave sanctioned by the ministry of justice for those on restriction orders.

Section 117

A Duty to make Aftercare Arrangements

Secton 117 give the statutory authorities a duty to made arrangements for a person's continuing support and care. It appplies to people who have been detained under Section 3, Section 37, Section 47, and Section 48.

The Act states:

It shall be the duty of the District Health Authority and of the local social services authority to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the District Health Authority and the local social services authority are satisfied that the person concerned is no longer in need of such services.

While the Act makes this duty to arrange aftercare services, there is no obligation for the person concerned actually to accept the services which are on offer. For example, the aftercare arrangements might include visits from a Community Psychiatric Nurse [CPN] - but the person does not have to let the CPN into their home.

Over the years, steps have been taken to try to improve aftercare planning, for example by the appointment of a Key Worker under the Care Programme Approach. A further piece of legislation, the Mental Health (Patients in the Community) Act 1995, created Supervised Dicharge whereby a person can be legally required to reside at a certain place and attend for treatment. However, the neither the 1983 Act nor the 1995 Act include any legal power actually to treat someone against their will in the community.

Section 17

Planned / Authorised Leave

The Responsible Medical Officer [RMO] may grant leave to people detained under the Act (other than those subject to restrictions). The leave may be:

  • for a fixed or indefinite period, up to the remaining duration of the Section
  • in, or not in, the custody of a member of hospital staff
  • subject to conditions
  • revoked (in writing) at any time by the RMO if necessary in the interests of the person's health or safety or for the protection of others
  • extended by further leave, which may be granted in the patient's absence

When the person is on leave, the duration of their Section is not affected. If the Section under which the person is detained expires while he/she is on authorised leave, then they cannot be recalled to hospital. This does not apply if the person is absent without leave at the time the Section would otherwise expire. It is not legal to recall a patient to hospital just before the expiry of the Section for the purpose of renewing the Section and then granting a further period of leave.

Unauthorised absence is dealt with in Section 18.

Please note that sometimes both nurses and Rmo's get it wrong . It is important  to amend section 17 forms when consultants have changed for whatever reason . Do not under any circumstances allow a client under restriction orders to leave the hospital with a promise from the consultant to rectify the form when he or she arrives . Worst case scenario is the client absconds and reoffends ,the nurse signing the section 17 and escorting the patient out in the case of escorted leave unfortunately will have to take some responsibility.