Advice please about hospital orders and alternatives

My son is currently being held in prison on remand as he is deemed unfit to stand trial because of his severe psychosis. At his latest sentencing hearing where he is expected to revive a hospital order this couldn’t happen because there are no beds available. So he was remanded in prison for a further 14 days after being there for 28 days already. All the psychiatrist confirm prison is not the place for him it’s making him worse. They also confirm I and his community team and doctors have a suitable treatment package set up in the community whilst living with me to supervise and remain his cater. He is not a danger to others . But still after 3 years of this nightmare going on and him being in the community on bail without breaches the judge detained him ??? There’s still no sign of a bed? How long can they keep him in prison like this when it’s proven wrong and can we still fight for a supervision order in the community in my care instead of prison whilst waiting for a bed ? He’s suffering so much for something he never did ??

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First thing to establish is whether the unfitness to plead is the clinical view put forward for him or whether it has been fully established in the court with a jury? - because the two situations are different and it affects the answer. Broadly speaking -

  1. If this is the view of the psychiatrists treating and assessing him so far, it needs to be put to the court so they can make the determination in front of a jury that he’s unfit to plead and it’s for the jury to decide, based on the evidence. If your son has already appeared before the Crown Court, then the court can remand him instead to hospital until that determination is made but as you said yourself, that means there needs to be a bed and there’s your sticking point.

  2. If your son is already unfit to plead according to a jury - or when the jury make that decision - then the court has to do one further thing before they can start deciding about hospital orders and alternatives: there needs to be a “trial of the facts”, to determine whether he “did the thing” which forms the basis of his charge(s). It’s not really a trial, so misleadingly named, because it’s merely trying to establish what happened to allow the court to make the right decision.

I notice you say at the end your son didn’t do what he’s accused of - a trial of the facts is for the purposes of establishing that because it would be against natural justice to give a hospital order to someone who didn’t actually do the thing they’re accused of. The trial of the facts is designed to ensure the innocent who are mentally ill are not subject to incredibly restrictive, life-altering orders when they didn’t actually do the thing which forms the basis of the charge(s) they face.

Once a trial of the facts concludes, you’ll have a clearer idea what comes next: if found not to have done the thing, your son will be released from criminal justice custody and any mental health care he may require then becomes a matter entirely for the NHS and the local authority AMHP. If it were found he did the action, then and only then can the court consider its options which include the hospital order (or a restricted hospital order).

There are only three options available - in addition to the hospital order, the court could direct an absolute discharge, which simply means it’s noted that he did the thing but no further criminal justice action is taken. Or they could order a supervision order from the Probation Service. It’s impossible to say which is more likely because all cases turn on their very specific, individual merits.

Sounds like a very difficult situation anyway, compounded further by the bed situation meaning he’s in prison not hospital. I hope it gets sorted soon for both your sakes.


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Thank you Michael that’s very helpful. He has actually been found by the ‘finding of facts’ to have done the deed. Even though we have evidence to prove he has not that evidence cannot be reviewed as part of the process because he’s been deemed by the court and psychiatrist’s not fit to attend or plea? It is so wrong it’s because of his unfit to plea state he is also deemed unfit to instruct a defence so the proof of innocence or even doubt around him having committed the offence was not viewed by a jury. So we are now in limbo where he’s in prison no sentence , no beds for a hospital order and no sight to an end to this thing. My son is BPD, autistic and has some psychosis but all has been exasperated by the thing being dragged on for 2 years . He was just getting better getting the correct medication and support in the community when the judge changed his bail to remind on the advice of a psychiatrist that assessed him once for 10 mins on a zoom call. One other psychiatrist, his mental health team and his GP all agree he is not a danger to others and his best course of treatment in at home where he feels safe and work with his support teams in the community. His psychosis is triggered by unfamiliar surroundings and people ! So you can imagine how it’s affecting him being in prison! If this is the law it stinks !!
I just need to know how long they can keep remanding him into a prison environment which is totally unfit for his condition . They’re taking his life away for a minor offence he didn’t do !

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