Preventing ‘Risky Remands’: The Forensic Psychiatrist’s Crucial Role in Identifying and Managing Severe Mental Illness in Police and Court Custody

The justice system faces a persistent challenge in appropriately managing defendants presenting with mental health needs, particularly those with severe mental illness, within police and court custody. Recent high-profile cases and parliamentary discussions have underscored the critical issue of ‘risky remands’ – situations where individuals with acute psychiatric conditions are held in unsuitable environments, often leading to tragic outcomes. For criminal defence solicitors and barristers, recognising and responding effectively to indicators of severe mental illness is not only a matter of justice but also of preventing significant medico-legal and humanitarian risks. This article explores the indispensable role of the forensic psychiatrist in navigating these complexities, ensuring that appropriate psychiatric assessment and disposal options are considered from the earliest stages of criminal proceedings.

Identifying Severe Mental Illness: More Than a ‘Custody Concern’

In forensic psychiatric practice, the presentation of a defendant with what may initially appear as erratic or challenging behaviour in custody often warrants careful scrutiny for underlying severe mental illness. This extends beyond general ‘custody concerns’ to encompass a range of diagnosable psychiatric disorders that can profoundly impact an individual’s engagement with the legal process. Expert psychiatric opinion may address conditions such as:

• Psychotic disorders (e.g., schizophrenia, schizoaffective disorder), characterised by disturbances in thought, perception, affect, and behaviour, potentially manifesting as delusions, hallucinations, or disorganised speech.
• Major depressive disorder with psychotic features, where severe depression is accompanied by psychotic symptoms.
• Bipolar affective disorder, involving significant mood swings between depressive and manic or hypomanic states, which can lead to impulsive, disinhibited, or aggressive behaviour.
• Severe Post-Traumatic Stress Disorder (PTSD) or complex trauma responses, which may manifest as profound dissociation, emotional dysregulation, or re-experiencing phenomena that can mimic other psychiatric conditions or contribute to offending behaviour.

It is widely recognised in criminal casework that distinguishing genuine psychiatric disorder from the effects of drug and alcohol intoxication is paramount. While substance misuse can mimic psychiatric symptoms, a forensic psychiatrist meticulously assesses for underlying or co-occurring mental illness, considering the individual’s mental state when not intoxicated, their psychiatric history, and corroborative information. Furthermore, the interface between personality disorder and criminal behaviour is frequently encountered; while personality disorders do not typically negate criminal responsibility in the same way as severe mental illness, they can significantly influence an individual’s decision-making, risk-taking, and response to stress, providing crucial context for sentencing considerations.

Psychiatric Disorder and its Impact on Criminal Proceedings

The presence of severe mental illness has profound implications at various stages of criminal proceedings, influencing both the viability of a defence and the appropriate disposal. Expert forensic psychiatric evidence is critical for addressing complex legal questions:

Fitness to Plead and Stand Trial

A defendant’s fitness to plead and participate effectively in their trial is a foundational principle of justice. In the experience of forensic practitioners, severe mental illness is a primary reason for challenging fitness. The criteria for fitness to plead, as established in the case of R v Pritchard (1836) and clarified in subsequent case law such as R v Marcantonio [2016] EWCA Crim 1466, require a defendant to have sufficient mental capacity to:

• Understand the nature of the charge.
• Understand the difference between a plea of guilty and not guilty.
• Instruct solicitors.
• Challenge jurors.
• Understand the evidence.
• Give evidence in their own defence.
• Follow the course of the proceedings.

A comprehensive forensic psychiatric assessment will evaluate whether a severe mental illness prevents the defendant from meeting these criteria. If found unfit, alternative pathways, such as a trial of the facts, become necessary, often leading to a Mental Health Act disposal.

Diminished Responsibility and Criminal Responsibility

For offences such as murder, severe mental illness may give rise to a partial defence of diminished responsibility. Expert psychiatric opinion provides the medical evidence for the defence to argue that the defendant’s mental functioning was ‘substantially impaired’ due to an ‘abnormality of mental functioning’ arising from a ‘recognised medical condition’. This impairment must affect their ability to:

• Understand the nature of their conduct.
• Form a rational judgement.
• Exercise self-control.

This assessment requires a nuanced understanding of the causal link between the psychiatric diagnosis and the defendant’s mental state at the time of the offence.

Sentencing and Mental Health Act Disposals

Where severe mental illness is identified, particularly at the point of conviction, the court must consider specialist psychiatric disposals under the Mental Health Act 1983 (MHA). These can include:

• Section 37 Hospital Orders: Authorising detention in hospital for treatment.
• Section 37/41 Hospital Orders with Restriction Order: For cases requiring additional safeguards due to the defendant posing a significant risk to the public, giving the Ministry of Justice authority over discharge and leave.
• Section 45A Hybrid Orders: A ‘hospital and prison’ direction allowing initial treatment in hospital with a transfer to prison to serve the remainder of the sentence once deemed fit for discharge, if appropriate. This option is particularly relevant for serious offenders who require substantial mental health treatment but also a period of punishment.

Such disposals are designed to balance public protection with the therapeutic needs of the defendant, often providing a more appropriate and humane pathway than a custodial sentence, especially in cases involving severe mental illness that might otherwise lead to a ‘risky remand’. Psychiatric mitigation, informed by expert reports, also plays a crucial role in sentencing, especially in Newton hearings, where the impact of a mental disorder on culpability is considered, or within pre-sentence reports.

The Forensic Psychiatrist as an Expert Witness: More Than Diagnosis

The role of the forensic psychiatrist extends far beyond merely providing a diagnosis. A comprehensive expert report will:

• Provide an independent opinion: Detailing the psychiatric assessment, relevant history, and diagnostic formulation.
• Address legal questions directly: Applying clinical findings to the specific legal tests for fitness to plead, diminished responsibility, or mitigation.
• Conduct thorough risk assessments: Utilising structured professional judgement tools such as the HCR-20 (Historical Clinical Risk Management-20), to evaluate the risk of harm to self and others, which is crucial for determining appropriate disposals and management plans.
• Consider symptom validity and malingering: Forensic psychiatrists are adept at identifying indicators of malingering (feigning or exaggerating symptoms) or symptom validity issues, ensuring that the evidence presented is robust and reliable.
• Detail treatment needs and prognosis: Advising on the recommended psychiatric treatment and the likely impact on the defendant’s mental state and risk profile.
• Highlight the limitations of prison psychiatric care: Critically, expert reports often detail the significant limitations of general prison healthcare settings in managing acute severe mental illness, underscoring why MHA disposals are often medically necessary to prevent such ‘risky remands’ and potential deterioration.

Practical Guidance for Solicitors: Early Intervention is Key

The instructing solicitor should consider seeking specialist forensic psychiatric input at the earliest opportunity, especially if there are any indications of mental health issues from the police station stage or initial court appearances. This early intervention can be pivotal in preventing ‘risky remand’ situations involving severe mental illness.

When instructing a forensic psychiatrist, it is crucial to provide a comprehensive brief, including:

• Full disclosure of the police interview and charge.
• Any available medical records (GP, previous mental health services, hospital admissions).
• Details of any unusual behaviour observed in custody or during interviews.
• Specific questions the court requires the expert to address (e.g., fitness to plead, diminished responsibility, disposal options).

A quality forensic psychiatric report will not only answer these questions but also provide a nuanced understanding of the defendant’s mental state within the context of their alleged offending, assisting the court in making informed and just decisions.

Ultimately, a collaborative approach, combining the legal expertise of defence practitioners with the clinical and medico-legal acumen of forensic psychiatrists, is essential for ensuring that defendants with severe mental illness receive appropriate care and that their cases are handled fairly within the criminal justice system. Preventing ‘risky remands’ and ensuring humane, effective management for those with severe mental illness requires vigilant, informed action from all involved.

Specialist forensic psychiatric assessment can be pivotal in cases of this nature.