ABSTRACT
Understanding the law relating to mental health (or rather ill-health) in general, and mental disorder in offenders or potential offenders, is a complex and difficult task, often beset by ethical and definitional problems. This chapter provides a modest overview of some of these, and comments on the extent to which the law has a part to play in reducing the extent of known mental disorder in offenders. The chapter can be likened to a large-scale map in which broad outlines have to be supplemented by those provided by the more detailed scale of a map such as the Ordnance Survey. Detailed information concerning many of the issues explored in this chapter can be found in the references and, in particular, Prins (2005). The chapter is divided, somewhat arbitrarily, into the following sections. First, a brief account of recent mental health and allied legislation and, in particular, the provisions for offenders. Second, very brief reference is made to mental disorders and their somewhat equivocal relationship to crime, particularly violent crime. Third, a short account of the manner in which mental states may be put forward in total or partial exculpation of responsibility (capacity). Finally, some account is given of the provisions available for the diversion of mentally disordered offenders from the criminal justice and penal systems. It is true to say that the manner in which the ‘law’ deals with mentally disordered offenders is to be found in a mixture of statute, case law and administrative ‘devices’, for example as in the provision of diversion. My use of the term mental disorder also requires a comment; the use of the term has advantages and disadvantages. In legal terms it covers concisely those disorders identified in current mental health legislation (mainly through the provisions of the Mental Health Act 1983, as amended from time to time). These are identified as follows: mental illness, usually taken to mean severe, disabling illnesses such as the schizophrenias and the affective disorders (depressive illness and hypomania); mental impairment; severe mental impairment; and psychopathic disorder. However, experience suggests that there are a number of mental conditions that would not necessarily fulfil the criteria
for compulsory admission under the 1983 Act. Because of this, it is probably more satisfactory to use the term ‘mental disturbance’.
