GUIDELINES ON THE USE OF THE MENTAL HEALTH (NORTHERN IRELAND) ORDER 1986

PERSONS WITH MENTAL DISORDERS CONCERNED IN CRIMINAL PROCEEDINGS OR UNDER SENTENCE (Part III)

What is the purpose of Part III?

The purpose of Part III of the Mental Health (Northern Ireland) 1986 Order is to ensure that those people with a mental disorder who come into contact with the criminal justice system are dealt with in an appropriate way that meets their mental health needs and also provides protection for society.

Part III sets out provisions available to the courts and the Department of Justice in relation to those individuals with a mental disorder who are concerned in criminal proceedings or under sentence.

The Police Service of Northern Ireland (PSNI) also has powers in relation to patients subject to Part III. See Role of PSNI and Warrants in the APPENDIX Section. In addition the PSNI must take account of the guidance contained in the Codes of Practice for the Police and Criminal Evidence (Northern Ireland) Order 1989 in relation to the detention, treatment and questioning of persons who have or thought to have a mental disorder.

The powers contained in Part III can be usefully be divided into 2 categories:

  • The powers of the Courts and
  • The Powers of the Department of Justice. These are powers previously held by the Secretary of State for Northern Ireland and now devolved as part of a number of policing and justice functions to the Northern Ireland Department Of Justice under the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010.

In addition Part III sets out the processes that must be followed in relation to these matters.

The Code of Practice gives more detailed guidance, particularly on aspects of good practice. How does this framework differ from that in Part II? The main difference is that the person is subject to admission and detention in hospital or to a community based compulsory arrangement by order of the Court or has been transferred to hospital from prison on the order of the Department of Justice.

While medical practitioners may recommend to the court or Department of Justice that a person be detained in hospital rather than prison or transferred from prison to hospital, approved social workers and nearest relatives are not involved in making an application for the person's detention in hospital nor does the nearest relative have rights of consultation in these matters, a right to object or a right to order the person's discharge from hospital, guardianship or supervision and treatment order.

What Powers are available to the Court under the Mental Health (Northern Ireland) Order 1986? Courts have the following powers in relation to persons who have or are suspected of having a mental disorder:

  1. Powers to remand an accused person to hospital for a report on their mental condition. Article 42
  2. Powers to remand an accused person to hospital for treatment. Article 43
  3. Powers to order the admission to hospital or guardianship of a person who has been convicted of an offence – i.e. hospital or guardianship orders. Article 44
  4. Power to impose an interim hospital order. Article 45
  5. Powers to restrict discharge from hospital. Article 47 and
  6. In relation to a person who has been found not guilty by reason of insanity or is unfit to plead, the court may impose, under Article 50A:
    • A hospital order
    • A guardianship order
    • A supervision and treatment order or
    • An order for absolute discharge

Does the Court have to consult with the Department of Health, Social Services and Personal Safety? In all cases the decision as to whether the person in court should be admitted to hospital lies solely with the Court.

However, a Court cannot remand a person to hospital for assessment or treatment, nor make a hospital order or interim hospital order, unless the Department of Health, Social Services and Personal Safety has been given an opportunity to make representations to the Court in accordance with Articles 42 (4), 43 (3), 44 (5) and 45 (3) of the Order.

No similar opportunity is provided by the Order under Article 49 (procedure in relation to unfitness to be tried) and Article 50 (procedure in relation to finding of insanity) though the Court may invite the Trust to make representations.

In the case of guardianship the Court must be satisfied that the potential guardian is willing to receive the accused into guardianship.

In the case of Supervision and Treatment Orders under Schedule 2A to the Order the Court must be satisfied that the supervising officer intended to be specified in the order is willing to undertake the supervision.

REMAND TO HOSPITAL FOR REPORT OR FOR TREATMENT What powers do the Courts have in relation to remand to hospital for report on an accused person 's mental condition? Both the Crown Court and a Magistrates Court can, under Article 42, remand an accused person into the care of the Department of Health, Social Services and Public Safety for admission to hospital for a report on that person's mental condition.

The Crown Court can remand any person who:

  1. Is awaiting trial before the court for an offence punishable with imprisonment or
  2. Has been arraigned (brought before the court to plead guilty or not guilty) for such an offence and has not been sentenced or otherwise dealt with for the offence on which he has been arraigned.

A Magistrates' Court can remand a person who has:

  1. Been convicted by the court of an offence punishable on summary conviction with imprisonment and
  2. Been charged with an offence if the court is satisfied that he did the act or made the omission charged or he has consented to the exercise of the power to remand.

What are the criteria that must be met? The court must be satisfied that, on the oral evidence of a Part II doctor, there is reason to suspect that the accused person is suffering from mental illness or severe mental impairment and it would be impracticable for a report on his mental condition to be made if he were remanded on bail.

How long can the person be remanded in hospital? The remanded person must be admitted to hospital within 7 days of the date of the remand and can be remanded in hospital for an initial period of 28 days and can be remanded for additional periods of 28 days to a maximum period not exceeding 12 weeks. Can the person appeal against detention under Article 42? Yes. The accused person is entitled to obtain an independent report from a medical practitioner on their mental condition and to apply to the court on the basis of this report for the remand to be terminated. The accused person has no right to apply to the Mental Health Review Tribunal while subject to Article 42. What powers do courts have in relation to remanding an accused person to hospital for treatment? Article 43 permits the Crown Court only, to remand an accused person to hospital for treatment. The person cannot be remanded unless the Department has been given the opportunity to make representations to the Court concerning the proposed remand.

What criteria must be met before a person can be remanded to hospital for treatment under Article 43? The Court must be satisfied, on the oral evidence by a Part II doctor and oral, or written evidence by one other medical practitioner that the accused person is suffering from mental illness or severe mental impairment of a nature or degree which warrants his detention in hospital for medical treatment. The person must also be awaiting trial before the court for an offence punishable with imprisonment (other than murder) or be in custody at any stage of such a trial prior to sentence.

How long can an accused person be remanded in hospital for treatment? The remanded person must be admitted to hospital within 7 days of the date of the remand and can be remanded in hospital for treatment for an initial period of 4 weeks and if necessary further remand for periods of up to 28 days to a maximum total period not exceeding 12 weeks. Can the person remanded to and detained in hospital under Articles 43 appeal against their detention? Yes. The accused person is entitled to obtain an independent report from a medical practitioner on their mental condition and to apply to the Crown Court on the basis of this report for the remand to be terminated.

Persons detained under Article 43 have no right to apply to the Mental Health Review Tribunal.

HOSPITAL ORDERS What is a Hospital Order under Article 44? A hospital order can be made by the Crown Court or a Magistrates Court. The order can direct that a person is admitted to and detained in a hospital rather than prison in order that the person receives care and treatment for their mental disorder.

There are two Hospital Orders that can be imposed by the court:

  • A hospital order without restriction and
  • A hospital order accompanied by restrictions (Restriction Order – Article 47)

Courts are empowered to make a hospital order under Article 44 (1) in respect of any person convicted before that court for an imprisonable offence punishable with imprisonment (other than murder).

A Magistrates' Court may also make a hospital order and a restriction order in respect of an accused person without conviction if it is satisfied that the person committed the act of which he/she stands accused (Article 44 (4).

What are the criteria for a Hospital Order (Article 44)?

Criteria include:

  • On the oral evidence of a Part II doctor and on the oral or written evidence of one other medical practitioner that the offender is suffering from mental illness or severe mental impairment.
  • The offender's mental disorder is of a nature or degree which warrants his detention in a hospital for medical treatment.
  • The court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to other available methods of dealing with him/her, that a hospital order is the most suitable method of dealing with the case.

What is the effect of a Hospital Order without Restriction? The subject of the hospital order must be admitted to hospital within 28 days of the date of the order. The person will then have the same status as a person detained under Part II of the Order. When the person no longer meets the criteria for detention in hospital for treatment they must be discharged from detention. The patient's nearest relative, however, has no power to discharge him from hospital.

Has a person detained in hospital under Article 44 a right of appeal to the Court of Appeal or the County Court? All patients admitted to hospital on a hospital order have certain rights of appeal either to the Court of Appeal or the County Court. Has the person a right to apply to a Mental Health Review Tribunal? Yes. The person has the same right to apply as a person detained under Part II of the

RESTRICTION ORDERS What is a Restriction Order? – Article 47 Article 47 empowers the courts to make an order restricting the person's movements while in hospital and from discharge from hospital. A restriction order can only be made if a hospital order is also made. In what circumstances can a Restriction Order be imposed by a court? In addition to the criteria as set out in relation to a hospital order without restriction the Court can impose a restriction order if it appears to the court, having regard to the nature of the offence, the person's history of offending and, the risk of further offending if released from detention, that the order is necessary for the protection of the public from serious harm.

What is the effect of a Restriction Order? As in the case of a hospital order without restrictions, the person must be admitted to hospital within 28 days of the date of the order. The restrictions may be imposed without limit of time or during a period of time specified in the order. The main restrictions are that the patient cannot be discharged from hospital, given leave of absence or transferred to another hospital or to guardianship without the approval of the Department of Justice.

Has a person detained under a Hospital Order with restriction a right of appeal to the Court of Appeal or the County Court? Yes. All patients admitted to hospital on a hospital order have certain rights of appeal either to the Court of Appeal or the County Court. However if the court requires that the person attend their appeal the Department of Justice must be notified immediately so that a direction under Article 48 (5) can be issued authorizing that attendance.

May a person detained in hospital under a Restriction Order make an application to the Mental Health Review Tribunal? Yes. However the Mental Health Review Tribunal has no discretionary powers to discharge patients subject to a restriction order from hospital, nor to direct delayed discharge, recommend leave of absence, transfer to another hospital or into guardianship and although the Tribunal may discharge restriction. The Department of Justice retains the discretionary power to discharge restricted patients or terminate restrictions. Discharge may be absolute or subject to conditions. When a restriction Order has been terminated the patient is treated as though he had been admitted to hospital under a hospital order without restriction made on the date on which the restriction order ceased to have effect (Article 47 (40)).

The Tribunal must direct a conditional discharge if it is satisfied that it is appropriate for the patient to remain liable to be recalled to hospital for further treatment. The patient must comply with any conditions imposed. A conditional discharge can be deferred by the Tribunal until it is satisfied that suitable arrangements have been made for the patient's conditional discharge.

Conditionally discharged patients can appeal to the Mental Health Review Tribunal. (Article 80 (2)). The Tribunal can vary any condition or impose another condition or direct that the restriction order ceases to have effect – with the result that therestriction order ceases to have effect. The Department of Justice can recall a conditionally discharged patient to hospital (Article 48 (2)) or vary the conditions of discharge (Article 78 (5)). The Department of Justice must always be advised of applications to the Mental Health Review Tribunal. What is an Interim Hospital Order? An interim hospital order is a provision under Article 45 which can assist the court in their decision making regarding the making of a hospital order.

What are the criteria for an Interim Hospital Order under Article 45?

  • The person has been convicted by a Magistrates Court or the Crown Court of an offence punishable with imprisonment (other than murder)
  • The court is satisfied on oral evidence by a Part II doctor, and oral or written advice by another medical practitioner that the convicted person is suffering from mental illness or severe mental impairment and
  • There is reason to suppose that the mental disorder is such that it may warrant a hospital order being made in his case.

What is the effect of an Interim Hospital Order? The subject of the interim order must be admitted to hospital within 28 days of the date of the order. The duration of the initial order can be specified by the court and must not succeed 12 weeks. However the court can renew the order on expiry for up to 28 days although the total period including renewals must not exceed 6 months. Can a person appeal against an Interim Hospital Order? As an interim hospital order is a form of sentence the patient can appeal from the Crown Court to the Court of Appeal and from a Magistrates' Court to the County Court.

GUARDIANSHIP ORDERS What is a Guardianship Order? Article 44 also empowers courts to make a guardianship order in respect of certain categories of offender. The effect of such an order is to confer on the Health and Social Care Trust or person named on the order the same powers as a guardian under Part II of the Order. What are the criteria for a Guardianship Order? Criteria include:

  • On the oral evidence of a Part II doctor and on the oral or written evidence of one other medical practitioner that the offender is suffering from mental illness or severe mental handicap of a nature or degree which warrants his/her reception into guardianship; and
  • The court is satisfied, on the written or oral evidence of an approved social worker, that it is in the interests of the welfare of the offender that he should be received into guardianship; and
  • The offender has attained the age of 16 years; and
  • The court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to other available methods of dealing with him/her, that a guardianship order is the most suitable method of dealing with the case; and
  • The Court is satisfied that the guardian is willing to receive the person into guardianship.

Can a person subject to a Guardianship Order apply to the Mental Health Review Tribunal? Yes. Persons subject to a guardianship order are treated essentially the same as a patient placed under guardianship under Part II.

How does a Guardianship Order differ from being received into guardianship under Part II? Firstly the guardianship order is made by the court and although an ASW is required to provide evidence to the court an application or recommendation by an ASW or a nearest relative is not required .The powers and duties conferred on the Health and Social Care Trust or private guardian, approved by a Health and Social Care Trust, and the provisions as to duration, renewal and discharge are those which apply to Part II guardianship applications except that the power to discharge is not available to the nearest relative.

PERSONS UNFIT TO BE TRIED OR FOUND NOT GUILTY ON GROUNDS OF INSANITY What powers does the Court have under Part III of the Order in relation to individuals who are unfit to be tried or who are found by the court to be not guilty on grounds of insanity? Under Article 50 A of the Mental Health (Northern Ireland) Order 1986, where a court has found that an accused person is either -

  • Not guilty by reason of insanity; or
  • Unfit to stand trial but the court has found that the person committed the acts or omissions that form the offence;

the court is obliged to make one of the following orders -

  • An order admitting the person to hospital Article 50 A (2) (a);
  • A guardianship order Article 50 A (2) (b);
  • A supervision and treatment order Article 50 A (2) (b) (ii) and Schedule 2 A; or
  • An order for the person's absolute discharge. Article 50 A (2) (b) (iii).

An order under Article 50 A (2) (a) is treated as it it were a hospital order and may be made with or without restrictions.

What are the criteria for a Hospital Order under Article 50 A (2) (a)? A hospital order can be made where findings have been made that:

  • The person is not guilty by reason of insanity; or
  • The person is unfit to be tried and that he did the act or made the omission charged against him.

What are the criteria for a Guardianship Order under Article 50 A (2) (b)(i)? The criteria are the same as for Hospital Orders under Article 50 (2) (a) (A). However, a Guardianship Order cannot be made if the act or omission they have been charged with relates to an offence for which the penalty is fixed by law. In that circumstance the court must make a hospital order with restriction without limit of time.

SUPERVISION AND TREATMENT ORDERS What is a Supervision and Treatment Order under Article 50 A (2) (b) (ii) and Schedule 2 A? The Court can make a Supervision and Treatment Order (STO) where findings have been recorded that:

  • A person is not guilty by reason of insanity or
  • A person is unfit to be tried and that he did the act or made the omission charged against him.

As in the case of a guardianship order under this Article the court cannot impose this Order if the act or omission they have been charged with relate to an offence for which the penalty is fixed by law. What is the purpose of a Supervision and Treatment Order? The purpose of an STO is to provide supervision and assistance in the community including medical treatment, for the purpose of improving the individuals mental well being and where appropriate, reduce the risk of harm to that individual and others.

What are the criteria for a Supervision and Treatment Order? The Court must be satisfied that:

  • The order is the most suitable means of dealing with the person.
  • The mental condition of the person is such as requires and may be susceptible to treatment, but does not require a hospital order or guardianship order.
  • The supervising officer intended to be specified in the order is willing to undertake the supervision, and
  • Arrangements have been made for the treatment intended to be specified in the order.

What is the effect of a Supervision and Treatment Order? Under this order the person is placed under the supervision of a social worker or probation officer ("the supervising officer") and must submit, during the whole or such part as may be specified in the order, to treatment (either as an in-patient or out-patient) by or under the direction of a medical practitioner. The supervising officer has the power to direct where that person should reside.

The supervised person must also submit to treatment by, or under the direction of, a medical practitioner with a view to the improvement of his mental condition for the duration of the order, or such part as may be specified.

How long can the person be made subject to the Supervision and Treatment Order? An STO may be made for a period of not more than 3 years.

Can the person appeal to the court against the court 's decision to impose an order made under Article 50 A i.e. Hospital Order, Guardianship Order or Supervision and Treatment Order? Yes. The person can appeal against sentence from the Crown Court to the Court of Appeal and from a Magistrates' Court to the County Court. Can the supervised person and the professionals involved in a Supervision and Treatment Order apply to the court to amend or revoke the Order? Yes. Taking account of the need for close co-operation with the medical practitioner, the supervising officer or the supervised person may, at any time, apply to the Court to amend or revoke the order.

This may include:

  • Cancelling any of the requirements of the order (including the requirement for treatment) (paragraph 8 (1) (a));
  • Inserting or replacing any requirement which could have been made at the time of making the original order (paragraph 8 (1) (b));
  • Revoking the order, which the Court may do if it is of the view that it would be in the interests of the health or welfare of the supervised person to do so (paragraph 6).

Can persons subject to the orders contained in Article 50 A apply to the Mental Health Review Tribunal? Persons subject to a Supervision and Treatment Order have no right to apply to the Mental Health Review Tribunal.

Persons detained in hospital under Article 50 A or subject to a guardianship order have a right to apply to the Mental Health Review Tribunal. In addition to powersof discharge the Tribunal can direct that an unrestricted patient, be granted leave of absence, transfer to another hospital or received into Guardianship.

The Mental Health Review Tribunal can direct the absolute or conditional discharge or defer the discharge of patients detained under an Article 50 A hospital order with a restriction order.

The Department of Justice must be advised of these applications. In addition the Department of Justice can discharge restricted patients absolutely or conditionally, recall conditionally discharged patients, vary the conditions of discharge or direct that the restriction order cease to have effect.

Is any additional Guidance available in relation to Supervision and Treatment Orders? Yes. The Department has published guidance for Health and Social Care Staff.

LINK TO Management of Supervision and Treatment Order – Guidance for Health and Social Care Staff. DHSSPS May 2011 pdf

What legal provisions exist for the transfer of a patient , subject to Part III of the Order, to hospitals in the UK? The Mental Health (Northern Ireland) Order 1986 permits the transfer of a patient subject to Part III of the Order to other hospitals in the UK in situations where:

  • The patient requires treatment in conditions of high security which are not available in Northern Ireland and
  • The patient requires specific services which are not available in Northern Ireland.

Do provisions exist for the return of patients who have been transferred in these situations ? Yes. Transfers between Northern Ireland hospitals and Scottish hospitals, including The State Hospital, Carstairs, are carried out under Article 6 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005. Transfers between Northern Ireland hospitals and hospitals in England are carried out under sections 81 and 82 of the Mental Health Act 1983. What Guidance is available in relation to the transfer of patients between these jurisdictions? The Department has revised and updated the guidance in relation to these matters.

LINK TO Guidance on the transfer of mentally disordered patients detained under the Mental Health (NI) Order 1986 to and from Hospitals in Great Britain August 2011 pdf.

POWERS IN RELATION TO PRISONERS Part III of the Order also sets out the powers, duties and responsibilities of the Department of Justice and others in relation to the assessment, care and treatment of those persons in custody who have or are suspected of having a mental disorder.

What powers does the Department of Justice have in relation to persons detained in prison either on remand awaiting trial, detained under Immigration laws or serving prison sentences (Transfer Directions)? The Department of Justice has a number of powers under Part III in relation to the admission to hospital of sentenced and other persons detained in a prison or other institutions, who have , or are suspected of having a mental disorder. What powers are available in relation to sentenced prisoners? The power to transfer sentenced prisoners to hospital applies to any person serving a sentence of imprisonment or other form of detention. The Department of Justice can issue a transfer direction if the transfer is recommended and the Department of Justice is satisfied that the criteria are met. The transfer is a warrant directing the prisoner's patient's transfer to hospital. What are the criteria for the transfer of these prisoners? The Department of Justice must be satisfied by written reports from at least 2 medical practitioners, one of whom must be a Part II doctor that:

  1. The person is suffering from mental illness or severe mental impairment and
  2. The mental disorder is of a nature or degree which warrants the prisoner's detention in hospital for medical treatment and
  3. The Department is of the opinion, having regard to the public interest and all the circumstances, that it is expedient to direct the prisoner's transfer.

What is the effect of the Transfer Direction? A transfer direction under Article 53 has the same effect as a hospital order made by a court. The direction is valid for 14 days after which a fresh direction will be necessary if the patient has not been admitted to hospital.

The Department has the discretion to give a restriction direction under Article 55. This direction has the same effect as a restriction order made by a court. When does a Restriction Direction cease to have effect? A restriction direction ceases to have effect on the date when the prisoner's sentence would have ended if he had remained in prison Article 56 (2). Can the person be returned to prison? Yes. When a transfer direction and restriction direction are in force, the Department of Justice may direct the person's return to prison. The Department of Justice must first be notified by the responsible medical officer, Mental Health Review Tribunal or any Part II doctor that the patient no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital in which he/she has been transferred. The transfer and restriction directions cease to have effect on the person's arrival in prison.

What powers are a vailable in relation to other prisoners? The Department of Justice can also direct the transfer of:

Detained or remand prisoners Article 54 (2) (a)
Persons remanded by a Magistrates' Court Article 54 (2) (b)
Civil prisoners Article 54 (2) (c)


Persons detained under the Immigration Act 1971 or under section 62 of the Nationality, Immigration and Asylum Act 2002. Article 54 (2) (d)

What criteria must be met before a person can be transferred to hospital under these provisions? The Department of Justice must be satisfied by reports similar to those required by Article 53 that the person is suffering from mental illness or severe mental impairment and the mental disorder from which the person is suffering is of a nature or degree which warrants detention in hospital for medical treatment and the person is in urgent need of such treatment. The Department of Justice has a discretion to also make a restriction direction and must do so in respect of persons under Article 54 (2) (a) or (b). Do these persons have a right to apply to the Mental Health Review Tribunal? Prisoners transferred to hospital under Article 53 with a Restriction Direction under Article 55 have a right to apply to the Mental Health Review Tribunal. If the Tribunal considers that the criteria for detention no longer exist the Tribunal must notify the Department of Justice that the patient would, if subject to a Hospital Order, be entitled to be absolutely or conditionally discharged.

If the Tribunal notifies the Department of Justice that the patient would be entitled to be conditionally discharged it may recommend that, if he is not so discharged, he should continue to be detained in hospital (Article 79 (1) (b)).

If, within 90 days, the Department of Justice notifies the patient that he may be discharged the Tribunal must direct his absolute or conditional discharge, as the case may be. Otherwise, as the patient is still considered a prisoner remains subject to the sentence passed by the court and must be returned to prison unless the Tribunal has made a recommendation under Article 79 (1) (b).

In the case of a prisoner detained under Article 54 (2), unless the Tribunal has made a recommendation under Article 79 (1) (b) that, in the event of the patient not being discharged he should continue to be detained in hospital, the Department of Justice must return the prisoner to prison or other institution if the Mental Health Review Tribunal rule that the criteria for detention no longer exist.

RELATED PROVISIONS IN OTHER LEGISLATION- PROBATION ORDER WITH A REQUIREMENT FOR TREATMENT FOR MENTAL DISORDER When can a Probation Order with a Treatment Requirement be made? Under (Article 11 (3) of and paragraph 4 of Schedule 1 to Criminal Justice (Northern Ireland) Order 1996) a Court can impose a Probation Order with a requirement for treatment for mental disorder.

Where a Court proposes to make a probation order it may include a requirement for treatment if it is satisfied that the mental condition of the offender is such as requires and may be susceptible to treatment; but is not such as to warrant detention under a hospital order under Part III of the Mental Health (NI) Order 1986 Do these persons have a right to apply to the Mental Health Review Tribunal? There is no right to apply to a Mental Health Review Tribunal. A probation order can be revoked by a court under Part 3 of Schedule 2 to the Criminal Justice (Northern Ireland) Order 1996 or amended under Part 4 of that Schedule. The person can appeal against sentence to the Crown Court or the County Court.