Sentencing mentally disordered offenders

The British government has introduced a new law for dealing with mentally disordered offenders because, it says, “the public has a right to expect to be protected from dangerous offenders” (Home Office press release 130/96, “Stronger powers for courts in sentencing mentally disordered offenders,” 3 May 1996). For nearly 40 years magistrates and judges have had the option of sending such people to hospital instead of prison. Under section 37 of the Mental Health Act 1983, such “hospital orders” depend on clinical evidence that the offender suffers from a mental disorder (mental illness, mental impairment, severe mental impairment, or psychopathic disorder) for which compulsory treatment in hospital is appropriate, and on the court's view that it is the most suitable disposal. About 600 hospital orders are made by courts in England annually. Discharge from hospital is at the discretion of the treating consultant or mental health review tribunal. When there is a requirement to protect the public from serious harm, the sentencing judge can impose an order under section 41 restricting discharge indefinitely. These cases (about 250 a year) are handed over to the psychiatrist for treatment and to the home secretary …