A Consultation on proposals for a Mental Health (Scotland) Bill

Chapter 4 Victims' Rights

Introduction

63. Sections 16 (Victim's right to receive information concerning release etc. of offender) and 17 (Release on licence: right of victim to receive information and make representations) of the Criminal Justice (Scotland) Act 2003 make statutory provision for the current Criminal Justice Victim Notification Scheme (CJVNS). This scheme does not extend to the victims of mentally disordered offenders (MDOs).

64. The SG publicly consulted^[5] on whether a VNS scheme akin to the CJVNS should be introduced for victims of MDOs. The majority of respondents were in favour of such a scheme being introduced. This chapter sets out the SG proposals in this regard and provision is made in the draft Bill to reflect said proposals.

General Approach

65. In essence the SG is proposing to introduce a statutory scheme allowing for the disclosure of information about MDOs to their victims or their relatives in certain circumstances. Provision will also be made to allow victims to make representations prior to any decision being taken with regard to the patient's discharge into the community or the conditions to which the patient will be subject to on discharge.

66. The approach taken to achieve this policy intent is to deal with offenders, convicted and sentenced to imprisonment in one scheme and to deal with offenders made subject to a compulsion order (whether or not a restriction order is also made) in another scheme.

67. The CJVNS presently covers offenders sentenced to imprisonment, but it loses track of them if they are made subject to an HD or TTD, and thereby enter the mental health system. The SG proposes extending the range of information to be given under the CJVNS so that the information under it includes information about offenders who, having been convicted and sentenced enter the mental health system. Part 3 of the draft Bill reflects this policy intention by containing a provision which amends section 16 of the Criminal Justice (Scotland) Act 2003.

68. The SG considers that extending the existing scheme in this manner, as opposed to having a completely separate scheme covering imprisoned offenders who enter the mental health system, means there will be no overlapping statutory requirement to give certain information about an offender. And a victim will not need to intimate a wish to receive information under two schemes if they want to keep track of an offender who moves from prison to hospital or hospital to prison.

69. The SG proposes that offenders subject to compulsion orders on indictment should be dealt with in a new scheme. As can be seen, from the draft Bill, provision is made for this by inserting a new section - section 16A Right to receive information: offender subject to a compulsion order - after section 16 of the Criminal Justice (Scotland) Act. 2003. Section 16 A mirrors some of the section 16 provisions.

Question 14: Do you agree with the proposed approach for the notification element of this VNS? If not, please explain why not and please outline what your preferred approach would be.

70. The second element of this proposed VNS covers representations from victims. The SG's intention here is to ensure that any representations made relate to the conditions or measures which might be applied to the MDO on release or conditional discharge and how this might affect the victim. For example a requirement in a compulsion order to reside at a particular address.

71. Proposed new section 17B (mentally - disordered offender: victim's right to make representations) is to give effect to the policy intention to confer on a victim a right to make representations before certain decisions are taken. The SG proposes that "decision makers" be placed under a requirement to have regard to any representations received. Under certain provisions of the Mental Health Act and the Mental Health Tribunal Rules^[6], the Tribunal is already permitted to have regard to representations from certain people whom they consider to have an interest in the proceedings.

72. As the Mental Health Act already contains express requirements about matters that have to be taken into account Schedule 1 to the draft Bill builds into the Mental Health Act at various places, the requirements to have regard to victims' representations. As we are giving victims a specific right to make representations in relation to certain decisions relating to the MDO, we are minded to restrict the ability of victims to make representations via the existing general powers of the Tribunal in the Mental Health Act and the Tribunal Rules.

Question 15: Do you agree that victims should be prevented from making representations under the existing mental health legislative provisions once they have the right to do so under the proposed Victim Notification Scheme? Please provide reasons for your answer.

73. Proposed new section 17C (Making representations under section 17B) sets out how the representations may be made. New section 17C ( Right to information after section 17B decision) sets out a victim's right to receive information on the decision made where they made representations.

Question 16: Do you agree with the proposed approach for the representation element of a Victim Notification Scheme relating to Mentally Disordered Offenders? If not, please explain why not and please outline what your preferred approach would be.