Are the Laws Regarding Mentally Disordered Offenders Adequate?

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Are the laws and services related to mentally disordered offenders adequate and appropriate?

Care and treatment for the Mentally Disordered Offender (MDO) has always reflected society’s intolerance and punitive attitude, typified by a desire to remove persons with mental illness from public sight (Gostin, 1983). Traditionally, health care for this population was provided in institutions until the 1950s. De-institutionalisation and large-scale closures of psychiatric institutes in the 1980s resulted from therapeutic advancement and the advent of psychotropic medication, which in turn led to a need to provide care and treatment in the least restrictive setting (Geller et al, 2006 ; Morrow e al 2003). Many patients were discharged, starting part of the government's policy of care in the community, part of which Community Treatment Orders (CTOs) are. Introduced internationally since 1980, CTOs were introduced in England and Wales with the amendment to the 1983 Mental Health Act, in 2007. An analysis and evaluation of the adequacy and appropriateness of the laws and services related to MDOs, regarding their treatment in the community will be the focus of this assignment. Recommendations of where changes or enhancements might be useful will be proposed.

The Mental Health Act (1983) states that the treatment of MDOs is not a medical matter, but a matter for the courts to decide and define. . The Criminal Justice Act (2003) stipulates that offenders must be punished, rehabilitated and the public protected from any harm they pose. In some cases it is appropriate that an offender be detained in institutions (Khanom et al, 2009). Although imprisonment is an appropriate place to detain offenders for the protection of the public, MDOs who have diminished capacity warrant a different form of treatment (Bean, 1986). As illustrated in the Bradley Report (2009; 91) community sentences can ‘provide safe and positive opportunities for offenders with mental health problems and learning disabilities.’ But there has always been debate and controversy surrounding the use of CTOs since their introduction.

Community Treatment Orders (CTOs) are laws and not treatment programmes (Heffern and Austin, 1999). They provide for the ability to use the Supervised Community Treatment (SCT) and came into effect in 2008 in England and Wales after the passing of the Mental Health Act 2007. (Department of Health; 2007). A CTO legally empowers clinicians to treat patients subject to detention for treatment in hospital under the Mental Health Act 1983, upon discharge into the community. CTOs enforce compliance and the safe treatment of the specific patients in the community, in an effort to prevent recidivism, relapse and any harm to the patient or others (Keilitz and Hall, 1985). They are designed to support people to stay out of hospital and remain in the community with as much freedom and independence as possible (Mental Health Act 2007). The SCT programme suggests a merging of the CJS and mental health objectives; which aim to rehabilitate and reform offenders (Peay, 2007). As an alternative to custody, this is fundamental in improving the treatment of the MDOs, provided the ‘punishment’ is proportionate to the offense committed, at the same time meeting the ‘rehabilitative framework’ criteria (Newburn, 1995, Bradley Report, 2009; 92). MDOs that can be placed on the CTO fall under sections 3, 37, 47 and 48 of the Mental Health Act (1983).

Under section 37 of the Mental Health Act (1983), a patient must have been convicted of a criminal offence by a court and the crime must be one which would normally allow imprisonment. However, sentence of this section is a court order for hospitalisation deemed as more appropriate than a punishment, such as prison, on grounds of mental disorder (Mental Health 1983). Sections 47 and 48 are orders to transfer prisoners from prison to hospital for mental health treatment (Mental Health Act 1983). MDOs...
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