Can anyone tell me what is the legal route is to ensure licence conditions are adhered to by mentally disordered offenders not managed by probation?
Are they subject to any particular legal framework?
If they have a mental health team they should be part of the plan to have oversight of compliance with licence conditions (care coordinator) - were they on a section before release? Is there social supervision and power of recall to hospital alongside licence conditions? There should/could be MAPPA involvement if there are concerns about how robust the plan is around monitoring adherence. If there are just licence conditions and only oversight from a mental health team not official social supervision, any breaches would need to be reported to the MoJ by the mental health team.
This is my understanding anyway.
People on Section 37/41 hospital and restriction orders - what is the statutory provision to ensure licence conditions are not breached (or addressed if they are)?
I understand any breaches should be reported to the MHCS at the MoJ.
Licence conditions are separate to health conditions - licence conditions would be managed by their probation officer (COM - Community Offender Manager or possibly IOM - Integrated Offender Manager). More info here: Licence conditions and recall — indeterminate sentences | Prison Reform Trust and Licence conditions and recall — determinate sentences | Prison Reform Trust - also gov.uk info here: Licence conditions policy framework - GOV.UK
If they were a forensic patient (eg s37/41 - receiving a hospital admission rather than a prison sentence) then it is feasible they may not be released on license depending on how long they’ve been in hospital - eg if hospital stay was lengthier than whatever tariff would have been given in prison. If this is the case, then the management of the forensic risk upon discharge from hospital varies in how it’s managed - they may still remain under MoJ with a social supervisor, or they may not - they may be under MAPPA - or they may not, and they may just be discharged back to the community with no oversight. Their mental health should still be managed by the local IMHT/CMHT and they should also have oversight from adult social care for their s117 aftercare. There are specialist forensic MH teams in certain parts of the country who could work with the patient as well in monitoring/managing that risk. But it all really varies on the exact specifics of the person in question. The person might be released on a CTO, or they may be released on a DOLS/COPDOLS if assessed as lacking capacity in the relevant areas for the DOLS to be legal. In light of AGNI this is also a changing landscape too.
The ideal scenario would be a planned discharge process for the patient, involving all of the above (MH, social care, and any MoJ/probation/police involvement/Victim Liaison etc. as appropriate) to ensure a) appropriate aftercare is identified, sourced, and implemented - alongside b) appropriately robust monitoring of risk once patient is discharged.
Specific info on MHCS / restricted patients can be found here: Mentally disordered offenders: The Restricted Patient System 2017 - GOV.UK - and regarding 37/41 oversight post-discharge, it should be an RC (psychiatrist) and a social supervisor (usually a social worker) - (see sections 8 and 9 for details.)
Thanks for that - but I can’t find any law or statutory provision that covers the monitoring of conditions for leave or discharge of Sec 37/41 patients.
I’m aware of the process but the restricted patient system document seems to be a bit vague on the law behind this - just saying it comes under the Secretary of State’s powers.
The distinction between “licence conditions” and “conditional discharge conditions” is important because they’re very distinct things with different enforcement processes/powers. Assuming we’re only talking about conditional discharged patients, the SSJ’s powers are only governed by Section 42(3) which allows them to recall a patient under Section 41 to hospital.
There are no actual monitoring/reporting requirements of any substance other than those imposed on the patient under Section 73(4)(b) and those on the patient’s RC under Section 41(6). However, those both come with asterisks.
S.73(4)(b) imposes an obligation on the patient to abide by their conditions but, unlike licence conditions, non-compliance with a condition isn’t a free-standing ground for recall (SSJ v MM [2018]; R (MM) v SSHD [2007]). Obviously, that somewhat removes the teeth.
S.41(6) helps to fill the gap in theory but (a) these are not uncommonly missed, and (b) they don’t function as intended unless the patient is also abiding by their conditions (i.e. an RC wouldn’t be able to provide much information about the patient if they’ve not been attending appointments).
For those reasons, the system of clinical/social supervision and routine reporting is contained in MHCS practice and guidance rather than being established by a specific statutory provision.
Thanks very much - that’s very helpful (and what I was looking for!)
I agree with that in principle, but in some cases it amounts to the same thing. In R (von Brandenburg) v East London and City MH NHS Trust [2003] UKHL 58 one of the scenarios where re-detention after tribunal discharge might be justified is where the patient assures the tribunal he will take medication but subsequently refuses and “the [AMHP] perceives a real risk to the patient or others if the medication is not taken”. In the restricted patient context this is like agreeing to a medication condition then refusing to abide by it. In R (IT) v SSJ [2008] EWHC 1707 (Admin) the court said:
- … In order to be consistent with the Brandenburg case this must, I think, be read as meaning that for the Secretary of State to recall a patient who has been conditionally discharge by the MHRT the decision maker must “believe on reasonable grounds that something has happened since the decision of the MHRT, or information has emerged which was not available to the MHRT, of sufficient significance to justify recalling the patient.”
In another example, the Ministry of Justice said recently that a patient refusing to abide by a “deprivation of liberty” condition would be recalled after any breach, within minutes, and must have had the principle above in mind when formulating that policy.
Yes, I think I oversimplified slightly. In MM [2018], Lady Hale explains at [25] that:
[A]t least the Winterwerp criteria must be satisfied; and in any event, the tribunal will have to discharge the patient once more if not satisfied that the MHA criteria are met (and see R (MM) v Secretary of State for the Home Department [2007] EWCA Civ 687, (2007) 98 BMLR 130, where it was agreed that breach of a condition was not a free-standing ground for recall and the Secretary of State must form a view of whether the statutory criteria are met).
It was stated in MM [2007] and later on endorsed in the Lee-Hirons UKSC case at (also) [25] that:
Deterioration in health is not the only permissible ground for recall. For example the commission of a crime or the breach of a condition would, if of “sufficient significance” (R (MM) v Secretary of State for the Home Department [2007] EWCA Civ 687, para 50, Toulson LJ), justify a recall.
So it might be more accurate to say that although breaching a condition isn’t a free-standing ground of recall, it could conceivably lead to recall in the same way if it demonstrates untenable risk. However, at least in my experience and for better or worse, the SSJ tends to recall on a higher threshold than perhaps they might be legally permitted to.