Diversion of Mentally Disordered Offenders

Topics: Mental disorder, Mental health, Psychiatry Pages: 17 (6093 words) Published: February 19, 2011
“The policy of diversion of mentally disordered offenders is sound. The problems are in the detail of its scope and application.” Discuss. Diversion is a ‘decision- making process at various stages of the criminal justice system’[1] which enables offenders to avoid being prosecuted, imprisoned and punished but alternatively identified and treated in a different way. The treatment of mentally disordered offenders is a controversial area which provokes differences in opinion as to whether they should be treated as “mad or bad”? Should they be subject to the normal process of criminal law or should a more humane approach which focuses on treatment be employed? It has been acknowledged that mentally disordered offenders ‘cannot be said to deserve punishment if they lack the necessary responsibility to be aware of their crime.’[2]Alternatively, they should be treated similarly to sufferers of any other illness, ‘with care and compassion.’ [3] In determining whether policy of diversion is sound it is necessary to define “sound” to establish consistency within my argument. In the context of this essay, I believe sound to mean ‘free from defect’.[4] In theory, I consider the concept of diversion to be a positive method of dealing with mentally disordered offenders. In reality, however, the policy is subject to various limitations which affect the extent to which it may be deemed valuable. According to NACRO (2005) the situation is “far from ideal” [5]highlighting the problems which exist in relation to the policy. Problems in the detail of its scope and application can be held accountable for its lack of success. I will determine whether they are wholly responsible or whether there are other flaws which explain the limited success of the policy. I will, firstly, evaluate the policy of diversion and establish whether it fits the description of “sound” and then examine how successful the policy is in practice. Diversion is considered to be a more appropriate method whereby mentally disordered offenders can evade the undesirable effects of ‘punitive sanctions and the prison regime’.[6] The majority of prisons are ill- equipped to deal with prisoners suffering from mental illness; ‘only 40% of medical officers have some qualification in psychiatry.’[7] This failure to provide an adequate level of care has ‘emphasised the need for mentally disordered offenders to receive treatment from health and social services wherever possible.’[8] The implementation of a policy of diversion of mentally disordered offenders is to reduce the role of the criminal justice system and increase that of the health system’[9]. It has made a valuable contribution in relation to reducing the mentally ill prison population and improving access to therapeutic care. The general feedback and data from various diversion schemes suggest they are making an impact in regards to identifying offenders suffering from mental illness, providing access to relevant health care and support and reducing inappropriate remands in custody[10]. These schemes aid positive outcomes where offenders are admitted to hospital (James et al. 2002[11]). They appear to address a patient’s clinical needs and seem to have had a positive impact in regards to reconviction rates. According to James’s study, two- year reconviction rates are half that for those given non- medical disposals at court (2002:88). Research evidence suggests the diversion scheme has been successful as there has been ‘a strong spirit of co- operation’[12]. In situations where the offender has committed minor offences but their mental illness has been severe many of the cases have been dropped limiting only 4% being admitted to the Crown Court.[13] This has had the benefit of saving money and enabling a more effective allocation of resources. The development of these schemes has contributed towards raising the awareness of mentally disordered offenders. It has also been acknowledged that their difficulties are...

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[1] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Preface
[2] The Divided Self: An Existential Study of Insanity and Madness (Penguin 1990).
[3] Percy Commission, para 5; 1978 White Paper Cmnd. 7320 Note 1, p. v.
[8] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Page 44
[9] S
[10] Hogett, Brenda, Mental Health Law, 4th edn, (Sweet and Maxwell,1996), p.75
[11] James et al
6 The Bow Street and Marlborough Street Magistrates’ Courts’ Psychiatric Assessment Scheme
[12] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999)
[13] Hogett, Brenda, Mental Health Law, 4th edn, (Sweet and Maxwell,1996), p.86
[14] Mental Health Act 1983 s
[15] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999)
[16] Session 1982-3 vol
[17] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999)
[18] Peay, Jill, ‘Mentally Disordered Offenders, Mental Health, and Crime’ in Maguire, Mike, et al
[19] Vaughan et al. 2001
[20] Peay, ‘Mentally Disordered Offenders’ in Maguire, Morgan and Reiner (eds), Oxford Handbook of Criminology
[21] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Page 54
[22] M
[23] Hoggett, Mental Health Law (1990), 48.
[30] s.136(1) Mental Health Act 1983
[31] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Page 84
[32] A concept which has long been used under public order legislation; see R. v Wellard (1884)
[33] Recent Mental Health Act Commission Reports have also expressed similar concerns about the regional variations
[35] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Page 87
[36] Rogers and Faulkner, Place of Safety, 21; this is confirmed by the second stage of this research- P
[37] s.136(1) Mental Health Act 1983
[38] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Page 54
[39] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Page 89
[40] NACRO, Revolving Doors, p
[41] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Page 99
[42] Cm
[43] CPS Annual Report 1992-3 (HMSO 1993), 50.
[47] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Page 53
[48] Sanders, ‘Limits to Diversion’, 513.
[50] Hogett, Brenda, Mental Health Law, 4th edn, (Sweet and Maxwell,1996), p.99
[51] M.Laing, Judith, ‘Care Or Custody? Mentally Disordered Offenders in the Criminal Justice System, (Oxford University Press, 1999), Page 68
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