Sections 37/41 Mental Health Act 1983: a study of judges' practice and assessment of risk to the public

Abstract

Previous studies have reported that a significant proportion of forensic psychiatrists have had experience of restriction orders being made contrary to medical recommendations. Judges were interviewed to ascertain their experiences, sentencing practice and the factors taken into consideration when determining whether or not to attach a restriction order. In particular, the reasons why a restriction order might be made contrary to medical opinion were explored. Twelve judges sitting in crown courts in England were interviewed. The interviewees were unanimous in their view that where a hospital order was being considered involving a serious offence a psychiatrist should take a firm view on whether a restriction order was also required. Furthermore, the interviewees stated that they would anticipate a positive recommendation from psychiatrists in cases involving homicide, arson and serious sexual and violent offences. Demographic factors, including ethnicity, were irrelevant in their deliberations. The experience of this sample is that restriction orders are rarely made contrary to medical recommendations and in the rare circumstances they are made, insufficient emphasis has been placed on previous offending behaviours or the issue of public protection. In addition to the primary intention to protect the public nearly half the sample stated that an additional intention was to ensure compliance with both after-care services and medication.