Mental Health and Criminal Law

Mental Health is a complicated business. Conditions are not easy to diagnose, doctors can disagree on which disorder a person is suffering from, or even if they have a mental health condition at all.

Those with mental disorders might have a host of specific needs in court on top of those of the typical defendant. That’s if they’re mentally well enough to stand trial at all, or if the CPS deems it is in the public interest to charge them.


Our initial approach is to seek diversion away from the court process wherever possible, a proactive approach with the police and Crown Prosecution Service can often avoid prosecution and more speedily access any necessary medical help that an accused person needs.

How do Courts approach Defendants with Mental Health Problems?

Sentencing defendants who appear to have mental health problems is a very difficult exercise. The Sentencing Council recently published a draft guideline for a general approach to sentencing defendants who have mental health problems.

This guideline is now open for consultation. The idea is that it will make sentencing easier and more consistent amongst those who suffer from mental illness.

It will apply only to some mental health conditions, including schizophrenia, bipolar disorder, PTSD, learning difficulties, autistic spectrum disorders, and dementia.

Although the guideline is still at consultation stage there is much that we can already utilise to assist those we defend.

What Sentences are Available?

Assuming a person is not well enough to stand trial, “unfit to plead”, a hearing goes ahead to determine whether they did the act; but this is not an ordinary trial with a “guilty” or “not guilty” outcome.

If they have done the act, or are found guilty in the usual way, there are several mental health-specific sentencing options available to the Judge under the Mental Health Act 1983.

Hospital Order

A Judge must be satisfied, on the evidence of two doctors, that this is the appropriate order, and that treatment is available.

The order is initially for six months but can be renewed for a further six and then annually. A person can be discharged from the hospital by their doctor, hospital manager, or First-Tier Tribunal (Mental Health).

Restriction Order

This is a type of order that attaches to a Hospital Order, requires at least one doctor to give live evidence, and can only be made if it is necessary to protect the public.

They restrict how a person can be discharged for a certain period, and they can be made indefinitely.

Only the Secretary of State, in most cases, can discharge someone under a Restriction Order. There is still a limited right of review in the First-Tier Tribunal (Mental Health).

Hospital and Limitation Directions

Otherwise known as “Hybrid Orders” these are a conventional prison sentence, with a direction that the time should be served in hospital rather than prison. These can only be made where a person is over 21.

If a person is discharged before the end of the prison term, they are transferred back to prison.

If they complete the “sentence”, they remain in hospital on the terms of a regular Hospital Order.

Several other factors weigh into whether any of these orders can or should be made.

Can Someone Still be Sent to Prison?

Yes. A Judge is not obliged to make any of these orders where a defendant suffers from mental health problems and can pass an ordinary prison or another sentence.

In the case of insanity or unfitness to plead, the Judge must use a mental health sentence or give an absolute discharge.

How we can assist

If you need specialist advice, then get in touch with any member of our vastly experienced Criminal Defence team, for assistance with any criminal law related matter.

Mr John Stokes (,
Mr Anthony Pearce (,
Ms Sarah Turland (,
Mr Daniel Woodman ( or
Mr Lorne Wilkinson (

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