mental health (care and treatment) (scotland) act 2003: code of practice- volume 3 compulsory powers in relation to mentally disordered offenders

chapter 3 insanity

Introduction

This chapter begins by providing an overview of the relevant psychiatric issues at trial in relation to insanity. It then sets out the legal criteria and clinical assessment of insanity in bar of trial, insanity at the time of the offence and diminished responsibility. The chapter goes on to describe how these should be addressed in pre-trial reports.

The chapter then provides detailed information about the relevant 'insanity' sections in Part VI of the 1995 Act including the imposition of a temporary compulsion order.

All section numbers in this chapter refer to the the Criminal Procedure (Scotland) Act 1995 ("the1995 Act") unless stated otherwise.

Overview of psychiatric issues of relevance at trial

01 At the trial a sheriff (in summary cases) or a jury (in solemn cases) decides a verdict. Many criminal cases do not go to trial as the accused usually pleads guilty and the process moves on to the sentencing stage. However if a trial is to proceed there are three scenarios in which mental disorder may be pertinent. These are:

Insanity in bar of trial

02 If a person's mental disorder is such that he/she cannot participate adequately in the court process, ( i.e. cannot understand the proceedings or instruct a legal representative as to a defence), then it has long been held that it is unfair for the person to be tried. If this is the case the court may find the person insane in bar of trial (or insane and unfit to plead) and there is no trial, or where the trial has commenced, it will be discharged (section 54(1)(a)).

Insanity at time of offence

03 If a person was mentally disordered at the time of the offence then this may affect his/her legal responsibility for his/her actions. In some cases the court may find that the person's mental condition was such that he/she cannot be held responsible for his/her actions, he/she is then acquitted on account of insanity in terms of section 54(6) (also known as insanity at the time of the offence or not guilty by reason of insanity).
A person may also be acquitted on the ground of insanity in terms of section 55(3) and (4), where the trial diet has been discharged and an Examination of Facts has taken place.

Diminished responsibility (only applicable where the charge is murder)

04 In murder cases, a person's mental condition may be such that although he/she cannot be acquitted on account of insanity, he/she may be found to be of diminished responsibility. The latter is a mitigating plea as opposed to a defence and therefore does not result in acquittal, but in conviction for the lesser offence of culpable homicide. Diminished responsibility, unlike insanity, does not have any specific procedures attached to it, but is conveniently described here because, like acquittal on the ground of insanity, it is concerned with the impact of mental disorder on a person's responsibility for an offence.

05 The legal criteria for insanity in bar of trial, acquittal on account of insanity and for diminished responsibility are set out in common law. It should be noted that insanity in bar of trial and insanity at the time of the offence are separate issues with different legal criteria. They are also distinct from whether a person has mental disorder in terms of the 2003 Act.

06 A person may have been insane at the time of an offence (section 54(6)), and although currently mentally disordered within the meaning of the 2003 Act, he/she may nevertheless be fit to plead.

07 A person may not have been insane at the time of the offence, but may later be found unfit to plead (section 54(1)(a)) and mentally disordered within the terms of the 2003 Act.

08 Generally insanity, both in bar of trial and at the time of an offence, has a higher threshold than that for mental disorder under the 2003 Act. This is clarified later in this chapter where the common law basis for these two forms of legal insanity are set out.

09 Insanity in bar of trial in terms of section 54(1)(a) or at the time of the offence in terms of section 54(6) accounts for a tiny minority of mentally disordered offenders who are processed by the criminal justice system. Where offences are relatively minor, charges may be dropped and the case dealt with informally or through civil procedures (covered by Parts 5 to 7 of the 2003 Act; for information about these procedures refer to Volume 2 of this Code of Practice).

10 In more serious cases, if criminal proceedings are raised, and the person is found to be insane in bar of trial the court will order an Examination of Facts (" EOF") (section 54(1)(b)) to be held in terms of section 55. If it is established in the course of an ordinary trial or in an EOF that the person was insane at the time of the offence, he/she will be acquitted on the grounds of insanity (in terms of section 54(6) and section 55(4) respectively). The disposals available following the conviction of a mentally disordered offender are almost identical to those available if a mentally disordered offender is found to be insane in bar of trial and/or was insane at the time of the offence (section 57(2)).

11 In cases where insanity or diminished responsibility is an issue, it is possible for parties to be in agreement about the expert evidence. However, this is less common in cases where the defence of diminished responsibility is advanced. Therefore where a person is insane in bar of trial the court makes this finding based on medical evidence usually in the form of a written report, without the need to lead evidence and allow for cross examination.

Legal criteria and clinical assessment

12 The legal criteria for insanity in bar of trial, insanity at the time of the offence and diminished responsibility are derived from common law. The current legal criteria are set out in paragraphs 18 to 20, 23 to 24, and 28 to 29 of this chapter respectively on the basis of the most recent case law. However it is always possible the law will change.

13 When medical practitioners are requested to assess a person pre-trial, the current legal criteria for insanity and, in murder cases, diminished responsibility, should be set out in the letter requesting the assessment. Medical practitioners should ensure that they are up-to-date with the current legal criteria before they give any opinion as to insanity or diminished responsibility, although it is the responsibility of the commissioning agent to ensure that the medical practitioner is provided with the relevant information.

14 In some circumstances an assessment by an appropriately qualified psychologist may be useful e.g. potential diminished responsibility resulting from a personality disorder.

15 Limited information may be available. When carrying out an assessment medical practitioners should be aware that the MHO may be able to provide useful information about the person. If an SCR has been prepared in terms of section 231 of the 2003 Act, it would be expected that this would provide information that will contribute to this area of assessment, as it should address aspects of personal history, (including social work records), family or carer accounts, and circumstances leading up to the event. Every effort should also be made to take account of the relevant sources that may be accessible such as a relative, significant other, carer and named person.

16 It is a matter for the court to make a finding in law as to whether the person is insane in bar of trial and/or was insane at the time of the offence.

17 The legal criteria do not translate easily into clinical terms. Some guidance is given in paragraphs 21 to 22, 25 to 27, and 30 to 31 below on the issues to be addressed in the clinical assessment of a person to determine whether insanity in bar of trial, insanity at the time of the offence or diminished responsibility apply. Medical practitioners should give opinions on these matters, but the court will make the appropriate finding in law.

Insanity in bar of trial

Legal criteria

18 In H. M. Advocate v. Wilson 1942 JC 75 (at page 79) the court set out that there had to be:

a mental alienation of some kind which prevents the accused giving the instruction which a sane man would give for his defence or from following the evidence as a sane man would follow it and instructing his counsel as the case goes, along any point that arises

19 Similar criteria were set out in Stewart v H. M. Advocate (No. 1) 1997 JC 183 (at page 183):

The question for [the trial judge] was whether the appellant, by reason of his mental handicap, would be unable to instruct his legal representatives as to his defence or to follow what went on at his trial. Without such ability he could not receive a fair trial.

20 The test excludes amnesia for the circumstances of the alleged offence in itself, but inability to give instruction due to physical defects may be accepted with the exception of deaf mutism ( HMA v Wilson 1942 SLT 194).

Clinical assessment

21 The assessment of fitness to plead is concerned with the mental state and ability of an accused person at the time of the trial. This involves making a diagnosis of mental disorder, and determining the impact of this disorder on the ability of the accused person to give instructions for his/her defence and follow proceedings in court. As the mental state of a person may change, if some time has elapsed between a clinical examination and the person's appearance in court a brief re-examination may be necessary.

22 Medical practitioners usually also consider whether the person understands the charge they are facing and the pleas available to them (although these are not specifically mentioned in the case law).

Insanity at the time of the offence

Legal criteria

23H. M. Advocate v Kidd 1960 JC 61 (at page 70) is currently generally accepted and used as the basis of the insanity defence:

... in order to excuse a person from responsibility on the grounds of insanity, there must have been an alienation of reason in relation to the act committed. There must have been some mental defect … by which his reason was overpowered, and he was thereby rendered incapable of exerting his reason to control his conduct and reactions. If his reason was alienated in relation to the act committed, he was not responsible for the act, even although otherwise he may have been apparently quite rational.

24 Self-induced intoxication does not provide grounds for a defence of insanity.

Clinical assessment

25 The task of the medical practitioner is to assess the mental state of the person at the time of the offence, and its relative contribution to the offence, taking into account the wider circumstances.

26 The nature and degree of any mental disorder should be such that the person's reason was alienated. It is difficult to translate the terminology of legal judgments into clinical corollaries but the mental disorder should be such that it played an overwhelming role in determining the occurrence of the offence. In most cases the person is suffering from a psychotic illness and there is a direct link between positive psychotic symptoms (delusions and hallucinations) and the act committed.

27 If an SCR has been prepared in terms of section 231 of the 2003 Act, it would be expected that this would provide information that will contribute to this area of assessment, as it should address aspects of personal history, (including social work records), family or carer accounts, and circumstances leading up to the event.

Diminished responsibility

Legal criteria

28 These were set out in Galbraith v H. M. Advocate 2001 SCCR 551 (2001 SLT 953 at page 966). The conclusions of the court were:

In essence, the judge must decide whether there is evidence that, at the relevant time, the accused was suffering from an abnormality of mind which substantially impaired the ability of the accused, as compared with a normal person, to determine or control his acts.

29 'Psychopathic personality disorder' ( Carraher v HMA 1946 SLT 225 and Kennedy v HMA 1944 JC 171 both refer) and voluntary intoxication ( Brennan v HMA 1977 JC 3 refers) are excluded.

Clinical assessment

30 Diminished responsibility is concerned with the mental state of the person at the time of the offence, as with insanity at the time of the offence. Therefore the clinical approach to assessment is identical to that outlined in paragraphs 25 to 27 above, including reference to the SCR where one is available.

31 The clinical corollaries of the Galbraith judgment are difficult to determine, because at the time of writing the judgment was relatively recent. The conditions that come within the scope of diminished responsibility are broader than those for insanity. It would be expected that the medical practitioner or other appropriate expert would comment on the mental condition of the person at the time of the homicide and the relative contribution of any mental disorder to the occurrence of the killing. The medical practitioner or other appropriate expert should not state if the person's responsibility was diminished; this is an issue for the jury.

Addressing insanity in pre-trial reports

Insanity in bar of trial

32 In every pre-trial psychiatric report the issue of insanity in bar of trial should be addressed. In most cases where a person appears insane in bar of trial (section 54(1)(a)) or there is uncertainty, the most appropriate next step may be to recommend an assessment order or a treatment order under section 52D or section 52M. This allows for a period of in-patient assessment and treatment to clarify the person's mental state and for diversion for care and treatment by mental health services.

33 If the offence is relatively minor and the prosecutor decides not to proceed with a prosecution, the most appropriate course may be either informal treatment or compulsory treatment under civil procedures (covered by Parts 5 to 7 of the 2003 Act; for information about these procedures refer to Volume 2 of this Code of Practice).

34 If a person is assessed by a medical practitioner to be insane in bar of trial (section 54(1)(a)), then the court will make a determination on this issue either at a specific preliminary hearing (sometimes called a 'mental health proof') or at the trial diet, where the necessary medical evidence (from two medical practitioners, one of whom must be approved in terms of section 22 of the 2003 Act) would be considered.

35 The importance of this is that if one medical practitioner prepares a report stating that he/she considers that a person is insane in bar of trial at an early stage in the pre-trial process, then this cannot be turned into a legal finding of insanity in bar of trial at the next scheduled court appearance because evidence is required from two medical practitioners. There would therefore need to be a specific hearing with the necessary medical evidence from two medical practitioners in terms of section 54(1).

36 Having assessed a person who appears to be insane in bar of trial, it may be that with treatment (by way of a temporary compulsion order under section 54(1)(c)(ii), see paragraphs 56 to 66 below), or the natural course of the mental disorder, there is an improvement in mental state over a period of time such that the person becomes fit to plead. On the other hand a person who initially appears fit to plead, may experience a deterioration in mental state prior to trial and appear to be insane in bar of trial.

37 If the court finds a person insane in bar of trial, then there will be an Examination of Facts in terms of section 55 to determine whether the person committed the offence(s). Whilst awaiting the Examination of Facts the person may be detained in hospital on a temporary compulsion order (section 54(1)(c)(ii)). Therefore in any report stating that a person is insane in bar of trial, which is likely to be the final report submitted for the hearing to determine whether the person is insane in bar of trial, consideration should be given to whether the person meets the criteria for a temporary compulsion order (see paragraph 56 below).

Insanity at the time of the offence

38 At the very early stages of the pre-trial process (police custody and first court appearance, see Part 1, Chapter 2 of this Volume of the Code of Practice), the issue of insanity at the time of the offence is not usually important, the main issues being fitness to plead and whether the person needs immediate psychiatric care and/or treatment.

39 It would be expected that in all other pre-trial reports the issue of insanity at the time of the offence would be considered. In most cases where this is an issue it may be appropriate to recommend an assessment order under section 52D if the person continues to be unwell.

Recommendation of disposal in insanity cases

40 In any case where it is likely that a person may be found insane in bar of trial or acquitted on the ground of insanity by the court, a medical practitioner preparing a report should address the most appropriate mental health disposal, if any, to be made if the person is found insane (section 57(2)), and also the most appropriate disposal if the person is not found insane but is convicted. (For further information see Part 1, Chapter 5 of this Volume of the Code of Practice.) The mental health disposals available in both circumstances are very similar, but not identical, so by covering both eventualities an appropriate disposal may be achieved whether the person is found insane or not.

41 The recommended disposal will depend on the nature of the person's mental disorder, his/her needs and the risk he/she poses to others. The issues here are identical to those at the post-conviction stage for persons who are convicted. The options as set out under section 57(2) are:

• a compulsion order;
• a compulsion order and a restriction order;
• an interim compulsion order;
• a guardianship order;
• a supervision and treatment order;
• no order.

42 The assessment as to the appropriateness of each of the options in paragraph 41 above is identical to that set out in Part 1, Chapters 4 and 5 of this volume of the Code of Practice, with the exception of the supervision and treatment order (section 57(2)(d)) which is unique to insanity procedure.

Insanity in bar of trial

Insanity at the time of the offence

Background

43 If a person was found insane prior to 1996, disposal was inflexible. In solemn cases there was automatic detention at a state hospital under a restriction order without limit of time. The Criminal Justice (Scotland) Act 1995 introduced an Examination of Facts (" EOF") following a finding of insanity in bar of trial, and flexible disposals following a finding of insanity (either in bar of trial with the facts found and/or at the time of the offence). These are set out under sections 54 to 57.

Purpose

44 Sections 54 to 57 set out the procedures to be followed when a person is found insane in bar of trial or acquitted on account of insanity. The criteria for these two findings are not set out here as they are not statutory, but are set out in common law.

45 Following a finding of insanity in bar of trial, an EOF allows the court to determine whether the person committed the offence(s) with which he/she was charged (on indictment or complaint) before imposing an appropriate disposal. Section 57(2) provides a flexible range of disposals in insanity cases allowing the nature of the person's mental disorder, his/her needs and the risk the person poses to him/herself or others to be taken into account.

Overview

46 For a finding of insanity in bar of trial, the court must make a determination on the basis of evidence from at least two medical practitioners. Usually, the issue is determined before trial commences, but it may become apparent after the trial has started.

47 If the person is found insane in bar of trial, he/she may be placed on a temporary compulsion order or remanded in custody or on bail. Next there is an EOF at which the court determines whether the person committed the offence(s). The court will also consider whether or not there are any grounds for acquittal and if any ground is established the accused person will be acquitted. The exception to this as already mentioned, is an acquittal on the grounds of insanity at the time of the offence.

48 A defence of insanity at the time of the offence may be put forward whether the person has been found insane in bar of trial or not.

49 If a person is found:

• insane in bar of trial and it is proven beyond reasonable doubt that the he/she committed the offence and that there are no grounds for acquitting him/her at an EOF; and/or
• insane at the time of the offence and therefore acquitted on the grounds of insanity;

the following disposals are available:

• compulsion order (section 57(2)(a));
• a restriction order (section 57(2)(b));
• interim compulsion order (section 57(2)(bb);
• guardianship order (section 57(2)(c);
• supervision and treatment order (section 57(2)(d));
• no order (section 57(2)(e).

Insanity in bar of trial

General: section 54

The court's finding as to insanity in bar of trial

50 Section 54 sets out procedures relating to a court's finding of insanity in bar of trial or at the time of the offence. Subsection (1) sets out the medical evidence necessary for a finding of insanity in bar of trial, and the procedures to be followed following such a finding (including making a temporary compulsion order). Subsection (3) allows for adjournment of a case where the person appears to be insane in bar of trial in order that investigation of his/her mental condition may be carried out. Subsection (5) allows for the hearing regarding insanity in bar of trial to proceed in the person's absence. Subsections (2A)), (2B) and (4) set out procedures related to the temporary compulsion order. Subsection (7) sets out requirements for notice to be given if insanity in bar of trial is to be put forward. Subsection (8) defines terms used in section 54.

51 If a court is presented with evidence from two medical practitioners (at least one of whom is an AMP in terms of section 61) that a person is not in their opinion sane and fit to plead, either before the trial has commenced or during a trial (section 54(1)), the court may find the person insane in bar of trial. This may occur in the person's absence if it is not practicable or appropriate for him/her to appear, and he/she (or the person acting on his/her behalf) has no objection (section 54(5)).

52 Before making a finding of insanity in bar of trial the court may adjourn the case for investigation into the person's mental condition (section 54(3)). This may occur if the court does not have the necessary medical evidence or if there is conflicting evidence.

53 If the question of insanity in bar of trial arises in a jury trial, the judge may adjourn the case, without having to dismiss the jury until the question is decided one way or another - whereupon the trial would either continue (with the same jury) or be discharged.

54 If an accused person intends to intimate a plea of insanity in bar of trial in a summary case, he/she must give notice of the plea and relevant witnesses to the prosecutor before the first prosecution witness is sworn (section 54(7)).

55 Following the finding in terms of section 54(1)(a) that the accused person is insane in bar of trial the court discharges the trial diet and orders an EOF (section 54(1)(b)). Whilst awaiting the EOF the person may be remanded on bail or in custody, or may be placed on a temporary compulsion order (section 54(1)(c)). The court may also desert the diet pro loco et tempore (ended for the moment) on the application of the prosecutor (section 54(2)).

Criteria for making a temporary compulsion order (section 54(1)(c))

56 To make a temporary compulsion order, in accordance with section 54(2A), the court must be satisfied on the evidence from two medical practitioners that:

• the person has a mental disorder;
• medical treatment is available which would be likely to prevent the mental disorder worsening, or alleviate any of the symptoms or effects of the disorder;
• if such medical treatment were not provided there would be a significant risk to the person's health, safety or welfare, or to the safety of any other person;
• a hospital is available and suitable for the person's detention (this hospital will be specified in the order).

Effect of a temporary compulsion order section 54(2B)

57 Measures which may be authorised are:

• that the person be conveyed to the specified hospital within 7 days of the making of the order by any of the following: a constable, a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of section 54(2B), or another specified person;
• the detention of the person in the specified hospital;
• the giving to the person of medical treatment in accordance with Part 16 of the 2003 Act (which includes medication, psychological or social interventions).

Advance Statement

58 Where any person is giving medical treatment under the 2003 Act to a person with mental disorder who is subject to the 1995 Act, that person must have regard to any advance statement (which complies with the 2003 Act) made by the person and not withdrawn. For further information about advance statements see Chapter 6 of Volume 1 of this Code of Practice.

What should happen during a temporary compulsion order?

59 As soon as practicable after the patient's admission to hospital the hospital managers have a duty under section 260(5)(a) of the 2003 Act to ensure that the patient and his/her named person are fully informed of, and understand the "relevant matters" as set down in sections 260(5)(a) to (h) of that Act, and also informed of the availability of independent advocacy services under section 259. For further information on these procedures see Chapter 4 of Volume 1 of this Code of Practice.

60 Although a temporary compulsion order does not qualify as a "relevant event" in terms of section 232 of the 2003 Act, best practice would suggest that in those cases where a temporary compulsion order is made and an RMO and an MHO have not previously been allocated for the patient's case, this action should be considered by the hospital managers and the local authority respectively.

61 It would be expected that the allocated MHO would work in close collaboration with the RMO and other members of the multi-disciplinary team and prepare a Social Circumstances Report (unless he/she considers it would serve little or no practical purpose to do so) which would be used by the RMO to inform his/her assessment.

62 It would be expected that in all cases the most appropriate disposal under section 57(2) should already have been recommended to the court in the reports that were given in evidence regarding insanity in bar of trial. These recommendations should be reviewed during the temporary compulsion order by the RMO and the MHO and the other members of the multi-disciplinary team where relevant and appropriate.

63 The length of time on a temporary compulsion order will not usually be sufficient to undertake a thorough multi-disciplinary assessment, particularly in more complex or serious cases. No further reports need to be submitted unless these are requested by the court or the initial recommendations are no longer appropriate.

Revocation or variation of temporary compulsion order (section 54(4))

64 The court may review the order at any point and take into consideration any changes in circumstances. If there is a change in circumstances at any point during the temporary compulsion order the RMO should report this to the prosecutor and have them seek to have the order varied or revoked. Examples of such circumstances may include the following:

• it has become clear during the temporary compulsion order that the person does not have a mental disorder;
• it is apparent that the risk that the person poses is such that he/she requires a higher or lower level of security than that provided at the hospital where the person is currently detained. This decision would be made by the RMO in consultation with the MHO and the other members of the multi-disciplinary team where relevant and appropriate.

65 The RMO's report to the prosecutor should set out the grounds for requesting the variation or revocation of the temporary compulsion order, and if recommending variation, should set out the recommendation.

66 If the variation proposed is that the person be admitted to a different hospital then arrangements should be made with that hospital for the person to be admitted there following the variation of the temporary compulsion order by the court. The court may then:

• revoke the order, and remand the person on bail or in custody (section 54(4)(a);
• confirm or vary the order (section 54(4)(b)(i)); or
• revoke the order and make such other order under section 54(4)(1)(c) or any other provision of the 1995 Act as the court considers appropriate.

Insanity at the time of the offence

General: sections 54 and 55

67 Section 54(6) allows the court to acquit a person on account of insanity at the time of the offence. If a court finds that a person was insane at the time of an offence it must declare whether the person is acquitted on the ground of insanity, given that even though the person was insane the acquittal may also be on other grounds. Acquittal on account of insanity is available under both solemn and summary procedure.

Examination of Facts ( EOF)

68 Section 55 sets out the procedures for an EOF following a finding of insanity in bar of trial. The court determines whether the person committed the offence(s) (subsection (1)) and makes a finding to this effect (subsection (2)). If the court finds that it is not established beyond reasonable doubt that the accused committed the offence(s), he/she will be acquitted (subsection (3)). If the court finds that the accused person did commit the offence(s), the court will also consider whether on the balance of probabilities there are any grounds for acquittal, which includes insanity (subsection (4)). Subsection (5) allows for the EOF to proceed in the person's absence, and subsections (6) and (7) set out the rules of evidence and their duration.

69 Section 56 sets out supplementary procedures to be followed: where an accused is found insane in bar of trial after the trial has commenced and the citation of the person and witnesses in those circumstances (subsection (1)); legal representation (subsection (3)); charge to be dealt with at the EOF (subsection (4)); if an EOF is deserted pro loco et tempore (subsection (5)); and if a person is subsequently charged with an offence which it has already been established that they committed at an EOF (subsection (7)).

70 The primary purpose of the EOF is to examine available evidence in order to determine beyond reasonable doubt, whether the person committed the offence(s) and whether, on the balance of probabilities, there are any grounds for acquitting him/her.

71 An EOF shall consider any evidence already given in a trial ( i.e. where the finding of insanity in bar arises part way through a trial) and any evidence led by any party at the EOF itself (section 55(1)).

72 The secondary purpose of the EOF is to identify the appropriate disposal for the person. However, where the court on examining the relevant facts, is not satisfied beyond reasonable doubt that the accused person is responsible for the offence(s) libelled it must acquit him/her of the charge(s). In such circumstances the court may detain the person for a medical examination under section 60C. (For further information about this procedure see Part 1, Chapter 6 of this Volume of the Code of Practice).

73 The diagram on page 98 shows the different findings that a court may make at an EOF.

74 The EOF can take place directly after the trial has been discharged. The citation of the person and witnesses to appear at the trial is also valid for them to appear at the EOF (section 56(1) and (2)).

Disposal of case where accused found to be insane (section 57)

75 Where a person has been acquitted on account of insanity or has been found insane in bar of trial and the court has found beyond reasonable doubt that he/she committed the offence then the following disposals are available under section 57(2):

(a) a compulsion order;
(b) a restriction order in addition to the compulsion order under (a);
(bb) an interim compulsion order;
(c) a guardianship order;
(d) a supervision and treatment order;
(e) no order.

76 The diagram on page 99 illustrates the range of disposals in the case of insanity. All of these disposals, except (d) above are almost identical to options available for mentally disordered offenders following conviction, and the same issues are pertinent in both circumstances. For information on assessing the most appropriate disposal under section 57 with respect to (a), (b), (bb) and (c) above medical practitioners should refer to Part 1, Chapters 4 and 5 of this Volume of the Code of Practice.

77 The 2003 Act makes no change to the supervision and treatment order (" STO") and so guidance about this order is not included in this Code of Practice. However given that both an STO and a compulsion order (" CO") provide for treatment and supervision in the community it should be noted that only the CO allows compulsory treatment for mental disorder under the 2003 Act as well as compulsory admission to hospital if the person is non-compliant. The choice between these two orders will therefore depend on the individual circumstances in each case. If the person meets the criteria for a CO authorising compulsory measures in the community and the less restrictive alternative of an STO is not appropriate or feasible considering the likely risk to the person or others and/or the likelihood and consequences of non-compliance, then it would be expected that a CO would be the appropriate disposal. Where this is not the case an STO would be expected to be the appropriate disposal.

78 Section 57(3A),(4),(4A),(4B),(4C) and (6) relate these disposals to those available following conviction making appropriate changes in the wording and process of the latter, to take into account that following a finding of insanity the person has not been convicted of an offence and therefore could not be subject to criminal justice sanctions. This notwithstanding a record would still be made on the person's Scottish Criminal Records Office data. If the offending behaviour was sexual, the person may also be subject to the notification provisions of the Sexual Offences Act 2003 or to a Sexual Offences Prevention Order under that Act.

79 Therefore, for example, reference to the terms 'offence' and 'offender' are removed from the wording of the paragraphs dealing with these disposals; and an interim compulsion order ceases to have effect if the court makes an order under section 57(2)(a), (b), (c) or (d), or decides under 57(2)(e) to make no order ( i.e. the final disposal at the end of the interim compulsion order cannot be a penal disposal).

80 If a compulsion order and a restriction order are being considered as the final disposal, then it would be expected that, as with cases following conviction, an interim compulsion order would be made first, to allow for a period of assessment and treatment.

81 A compulsion order authorising detention in hospital or compulsory measures in the community would be made according to the same criteria as set out under section 57A for convicted persons.

82 A guardianship order would be made according to the same criteria as set out under section 58 for convicted persons.

83 Section 57(5) refers to Schedule 4 of the 1995 Act, which sets out procedures relating to the supervision and treatment order.