Background

The Mental Health Tribunal considers the release of psychiatric patients detained under the mental health act. Most will have been detained to receive treatment following deterioration in their mental health and have committed no offence. But around 4,800 will be considered dangerous, having committed serious offences whilst mentally ill, and given a hospital order with restrictions under Section 37/41 of the Mental Health Act.

Some of these ‘restricted patients’ will have committed very serious crimes indeed. The Tribunal’s decision to release them is naturally a matter of grave concern and significant public interest for the families and communities they have harmed.

Our experience working with victims of such patients is that they are not well treated by Tribunals. Although Mental Health Tribunals have to consider a patient’s dangerousness and the protection of others, current evidence (outlined below) shows they are regularly discharging significant numbers of restricted patients who re-offend, often violently – and sometimes even fatally.

Despite increasing calls for transparency, accountability, and greater balance in parts of the legal system (e.g. in the Court of Protection, the Family Courts, and at the Parole Board), and for victims of crime generally (as in the Victims’ Strategy), available evidence shows the Mental Health Tribunal does not consider victims, patient risk and public protection, sufficiently well.

Unlike other courts, the Tribunal is not subject to any effective and open public scrutiny or accountability. Justice is not seen to be done.

Like others, we believe the system is in urgent need of reform.

 

Tribunals and Recidivism

Restricted Patients released by Tribunals have a high rate of recidivism. In 2017 Tribunals conditionally discharged 527 restricted patients who were considered safe to be released back into society. The same year half that number, 264 patients, were recalled to hospital, because something serious happened related to their mental disorder that increased their risk to the public. A recent academic study found that 44% of mentally disordered offenders discharged from a secure unit were re-convicted following release (368 patients) mostly for assault. Nearly 30% (109 patients) were convicted of a grave offence. Another study on patients released from High Secure Psychiatric Hospitals found 38% were re-convicted – 26% of them for serious offences (51 patients).

Not all offending results in conviction, as these types of offenders are often recalled or diverted away from the criminal justice system. Offending rates by restricted patients will be significantly higher than convictions alone suggest. One study of such offenders with schizophrenia released from a secure unit in South East London found two thirds of the total – 67% – reoffended violently.

We know of numerous cases where restricted patients released by Tribunals have subsequently gone on to kill: Stuart Lay in Sittingbourne, Leslie Gadsby in Liverpool, Jeffrey Barry in Bristol, Leyton Williams in Cardiff, Lee Arnold in Manchester, Theodore Johnson in Camden, David Gray in Winchester, Wayne Thornton in Huddersfield, to name just a few. (Two of them had even killed before). These are patients who (unlike most prisoners) have had years of intensive therapy to address their illness and offending behaviour. They are considered by the Tribunal to be safe to be released, yet still commit significant amounts of serious violence. Surely we can do better than this?

 

Victims of mentally disordered offenders

Victims of restricted patients have only very limited rights to make representations to the Tribunal. In order to do so they have to opt in to a ‘contact scheme’ – often at the height of their grief, without proper support, and when the practical consequences on decisions years in the future are extremely difficult to comprehend. Recent figures show only 40% of all eligible victims sign up. At times in some areas only one in three do.

Around 80% of the victims of mental health related homicides are their family members, friends, or acquaintances – they are the ones potentially most at risk if someone becomes unwell again and re-offends after release. Our experience is that such families often have key risk information, not in the medical notes, which could well assist the Tribunal assess current risk. We’ve had several cases where detained offenders have telephoned family members from psychiatric secure units disclosing graphic details of the index offence, or making inappropriate comments, sometimes even threats – of which the mental health professionals were completely unaware. If Tribunals do not engage with victims’ families effectively they can be missing significant risk information. This is not safe.

Victims are treated very differently by the Parole Board and by the Mental Health Tribunal when considering the release of serious violent offenders: At the Parole Board victims can make a victim personal statement, obtain a summary of reasons, and can challenge decisions. At Mental Health Tribunals victims can do none of these things. Victims are consequently denied access to justice. When victims are allowed to make submissions they can only comment on conditions for release – which experience shows (but nobody ever mentions), are often completely unenforceable.

Lack of accountability and public confidence

Unlike the Court of Protection or the Family Courts there are no moves currently to improve transparency in Mental Health Tribunals. Although significant amounts of personal information for these patients will already be in the public domain following criminal proceedings, Tribunal hearings are still incredibly secretive. We don’t know the names of the judges. We don’t know the names of the members of the panel – or their experience. We don’t know the evidence they consider, how they make their decisions, or even if they are acting lawfully. Out of many thousands of tribunal hearings considering the release of restricted Patients, only three have ever been held in public. There is no public scrutiny at all. Arguably existing case law and tribunal rules could allow the Tribunal to become much more open and transparent when considering the discharge of this group of dangerous patients, if they only chose to do so.

Mental Health Tribunals are unaccountable to the public and the victims of restricted patients. They are the last secret courts. There is a pressing need for reform.

Justice is not seen to be done.