The Domestic Violence, Crime and Victims [DVCV] ACT 2004, contains a number ofmeasures to extend the Government’s programme of improving services and supportto victims of mentally disordered offenders subject to hospital orders with restriction orders.
The Act and New Victim Provisions
These apply where a person is convicted of a sexual or violent offence and receives a restricted hospital order, (including an order made under criminal insanity legislation), or a hospital and limitation direction. They also apply following the transfer to hospital of a sentenced prisoner where a transfer and restriction direction is made. They confer the same rights on victims of such offenders as are available to victims of crimes whose perpetrators receive a prison sentence.
The extended duty is not retrospective, and applies only to cases where an
order or direction is made on or after 1′ of July 2005.
Under the DVCV Act, the Victim Liaison Unit of the National Probation Service is required to identify whether a victim, or someone else acting for the victim, wishes to:
- Make representations about whether the patient should be subject to any conditions if discharged from hospital and, if so, what conditions should be imposed.
- Receive information about any conditions relating to the victim to which the patient is to be subject in the event of his/ her discharge.
- The Victim Liaison Unit (VLU) must provide such information to the victim. In practice this will be done through the Victim Liaison Officer (VLO).
Children as Victims
Section 47 of the Children Act 1989 places a duty on the local authority to make whatever enquiries are necessary to enable them to decide whether they should take any action to safeguard and promote a child’s welfare. (Children Act 1989). Any professional who is concerned that a child may be suffering or may be at risk of suffering significant harm from a mentally disordered offender should always refer this matter to the Local Authority Social Services Department. A child is in need of protection if he/she is suffering or is likely to suffer significant harm.
There is a statutory duty placed on the following authorities to provide information. The Victim Liaison Unit must make contact with the victims of relevant offences and explain the sentence of the Court, noting any concerns that victims may wish to have relayed to decision makers in the case. The VLO must inform the victim whether the patient is to be subject to any conditions if discharged, provide details of conditions relating to contact with the victim or his/her family, notify the victim of the date when a restriction order ceases to have effect, and provide such information to the victim as the VLO considers appropriate in all the circumstances of the case. The VLO should consult victims about any representations they may wish to make relating to the discharge conditions and forward them to the Tribunal Office, in a similar format to the submissions made to the Parole Board, by the specified date.
Victims should be made aware that no guarantees can be given that any representations they make will not be disclosed to the patient. The Home Office Mental Health Unit [MHU] carries out the Home Secretary’s responsibilities under the Mental Health Act 1983 and related legislation. They direct the admission to hospital of patients transferred from prison, and consider recommendations from the Responsible Clinician (RC) in hospital for leave, transfer or discharge of restricted patients. The MHU also prepare documentation for the Mental Health Review Tribunals (MHRT), and monitor patients who are conditionally discharged. Each restricted patient has a caseworker at the MHU.
Where discharge is considered by the Home Secretary; the MHU must inform the VLU whether the patient is to be discharged and, if so, whether it is to be a conditional or absolute discharge. In the event of a conditional discharge, the MHU must inform the VLU of those conditions that relate directly to the victim. The MHU must inform the VLU if the conditions of discharge are varied or the patient is recalled to hospital, and the date when the restriction order ceases to have effect.
Mental Health Review Tribunal (MHRT).
A detained restricted patient may apply to have his/her case heard by a MHRT once a year. If the patient does not apply, their case will be referred to the MHRT by the Home Secretary every three years. In addition, after a conditionally discharged patient has been recalled, the Home Secretary must refer the case to a Tribunal within one month of recall. The MHRT will consider whether the patient needs to remain detained in hospital for the purposes of mental health treatment. Where an application is made to the MHRT by the patient or referred by the Home Secretary, the MHRT must inform the VLU whether the patient is to be discharged. In the event of a conditional discharge, the MHRT must inform the VLU of any conditions relating to the victim and of any subsequent variations of such conditions by the MHRT. If the restriction order is lifted, the MHRT must inform the VLU of the date it ceases to have effect.
When the Home Secretary refers a patient to the MHRT, the MHU will forward the details of the relevant VLO to the MHRT office. When an application is made to the Tribunal, the MHRT Secretariat will then inform the VLO of the Tribunal date once it has been set, as well as the date by which a victim’s representations must be received in order to be considered at the hearing. The Regional Chairmen of the MHRT have determined that there should be a presumption in favour of granting the victim the right to give evidence at the hearing in question. This presumption could in limited circumstances still be rebutted, if evidence is provided by the patient, the Home Office or the responsible authority justifying such a rebuttal, and the Tribunal agrees [p 4, J Cooper 2005].
Any application by a vlctim to attend the Tribunal hearing and glve oral evidence must be considered by the existing MHRT. However, the DVCV Act confers no new rights or obligations in respect of either attendance at or oralt evidence heard by the MHRTs.
Non-Statutory Cases Prior To 1stJuly2004
The DVCV Act 2004 does not apply to victims of offences for which an order or direction was made prior to the above date, as the Act is not retrospective. The MHRT has determined however that in such circumstances, if victims wish to have access to any future Tribunal proceedings concerning that patient, they will be required to give notice in writing to the MHRT of their wish to be informed of any future Tribunal proceedings. The MHRT will log and acknowledge in writing all such applications. The victim will be informed of the date, time and place fixed for any hearing concerning that patient in advance of the hearing. The victim shall have the right to apply to attend the hearing in order to give evidence and to submit any written evidence. The Victim Liaison Unit will give careful consideration to whether they can assist on a discretionary basis a victim wishing to make representations about a restricted patient, who is the subject of an order or direction made before the above date. In deciding whether they have the necessary resources to assist the victim, the VLU will take into account the potential risk of harm to the victim.