Criminal Procedure Act
The Criminal Procedure Act includes provisions for people who are accused of a criminal act and who may have a mental disorder.
If the police believe a person has done something wrong, they may have to go to court.
There may be criminal proceedings. These are the steps the police and courts take to decide if a person is guilty or not guilty.
These are some of the things that happen:
There may be criminal proceedings. These are the steps the police and courts take to decide if a person is guilty or not guilty.
- The court can ask a doctor to examine you to find out about your mental disorder
- The doctor gives the court a report
- The report helps the court decide if you need treatment
- The court decides what to do about your case
For more information follow the links below.
Criminal Procedure (Scotland) Act flowchart
Part VI of the Criminal Procedure (Scotland) Act 1995 (CPSA) includes a complex series of options for courts who are dealing with accused or convicted persons who have a significant mental illness or learning disability.
These include Assessment Orders, Treatment Orders, Interim Compulsion Orders, Temporary Compulsion Orders, Compulsion Orders, Compulsion Orders with Restriction Orders, Guardianship Orders, and Hospital Directions. The law also provides for Community Payback Orders with a condition of mental health treatment, orders for remand for inquiry into a mental condition, and the Transfer for Treatment Direction for prisoners who become mentally unwell.
These are important provisions, but are used in a relatively small number of criminal cases. Many professionals, including lawyers, doctors, and social workers, find it difficult to understand which option is most appropriate in a particular set of circumstances, and what evidence is needed for the court to make the appropriate disposal.
The Commission has produced this flowchart to help people understand what the various orders are for, and to find the right option for each situation. The information is correct as at 2 August 2018.
How the flowchart works
The flowchart is a macro-enabled Excel spreadsheet, this means it contains code which allows it to be an interactive experience. You may download the file onto your computer, although it may not work on mobile devices.
When the flowchart opens, click to enable macros. You can make it a trusted document if you like, this will save you enabling macros every time you open the file.
The flowchart has three tabs, Main, Disposal in case of insanity, and Final disposal.
Select an order from the list on the left, and the relevant parts of the flowchart light up and informative text appears. When you select an order, the flowchart automatically navigates to the relevant tab. Once selected, you can browse to the other tabs to view the full path from arrest to your order.
Further information
Greens Annotated CPSA (16th edition, 2017) contains detailed analysis of these provisions.
If you have any questions or suggestions about our flowchart, please contact the Mental Welfare Commission at enquiries@mwcscot.org.uk or call our advice line on 0131 313 8777.
Assessment order
When would this be used?
You are waiting for your trial and the court thinks you are ill. They ask a doctor to examine you. The doctor says that you need to go to hospital to be examined.
How long can an Assessment Order last?
The court can order you to stay in hospital for 28 days. This allows a psychiatrist to examine you. Seven days can be added if the doctor needs more time.
What happens next?
The psychiatrist gives a report to the court. The court then decides if you are well enough to go to trial. They can also decide you need to stay in hospital for treatment.
What if I don't agree to treatment?
If you do not agree to treatment the doctor must get a second doctor to agree. Then you can be given treatment.
Can I appeal this order?
Appeal means you ask the court to change its decision. You cannot appeal against this order. Your doctor tells the court if the order should be changed or stopped.
Treatment order
When would this be used?
You are waiting for your trial and the court thinks you are ill. The court can order you to stay in hospital for treatment. The court can only do this if two doctors examine you and agree. One of the doctors must be a psychiatrist.
How long can a Treatment Order last?
The treatment order lasts until the court make a decision to convict or acquit you. There are rules about when your trial must start. This depends on the seriousness of the offence you have been charged with.
What if I don't agree to treatment?
You could be treated under Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003. There is further information on our page on safeguarding treatments under mental health law. There is also information in a Scottish Government leaflet 'A guide for people involved in criminal justice proceedings'.
Can I appeal this order?
Appeal means you ask the court to change its decision. You cannot appeal against this order. Your doctor tells the court if the order should be changed or stopped.
Temporary compulsion order
When would this be used?
The court decides that your trial cannot start, or must stop, because of your mental illness or related condition. The court orders you to stay in hospital for treatment.
The court can only do this if two doctors examine you and agree.
How long can a Temporary Compulsion Order last for?
There is no fixed time for this order. It lasts until the court decides what to do about your case.
What happens next?
Once the order is made you have to stay in hospital. The court continues to "examine the facts". This means they try to find out if you did the thing you have been charged with. There are rules about when this process must start. This depends on the seriousness of the offence you have been charged with.
Agree to treatment?
You can be treated under Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003. There is further information on our page on safeguarding treatments under mental health law. There is also information in a Scottish Government leaflet 'A guide for people involved in criminal justice proceedings'.
Can I appeal against this order?
Appeal means you ask the court to change its decision. You cannot appeal against this order.
Interim compulsion order
When would this be used?
If you are convicted of an offence, and the sentence is prison:
- the court asks for more information about your health
- the court asks two doctors to examine you
- the doctors must say you need to go to hospital for examination
How long can the order last for? The court can keep you in hospital for 12 weeks. This order can be renewed every 12 weeks for up to one year.
What happens next?
In hospital, doctors will examine you and decide what treatment you require. The doctor's report helps the court to decide what to do next.
Agree to treatment?
You can be treated under Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003. There is further information on our page on safeguarding treatments under mental health law. There is also information in a Scottish Government leaflet 'A guide for people involved in criminal justice proceedings'.
Can I appeal against this order?
You can appeal to the court against the order being made. Appeal means you ask the court to change its decision. You cannot appeal against it being renewed. Your doctor tells the court if the order needs to be changed or stopped.
Compulsion order
When would this be used?
If you are convicted and your sentence is prison, the court can decide not to send you to prison. They can decide that you must stay in hospital for treatment or have treatment in the community.
You will be examined by two doctors, one must be a psychiatrist. They must believe that:
- you have a mental illness, learning disability, dementia, or related condition
- your condition is treatable
- without treatment, your health, safety, or welfare would be at a risk, or you would be a risk to other people's safety
- you cannot be treated without using the order
How long can this order last for?
The order lasts for six months. If your psychiatrist thinks it should last longer, they will apply to the Mental Health Tribunal for a further six-month extension. After that, the psychiatrist renews it annually, in the same way as a compulsory treatment order.
The psychiatrist will keep the need for the order under review, and can discharge you from the order if they think it is no longer needed.
Treatment in the community
If you are to be treated in the community, the court tells you:
- where you must go to get care and treatment
- where you must live, and your mental health officer must agree if you wish to move somewhere else
The people who must visit you include:
- your mental health officer
- your doctor
- any person your doctor says should give you care or treatment.
If you do not follow the order, your case may go to the Mental Health Tribunal to decide. You can be taken to hospital for your own safety.
Agree to treatment?
You could be treated under Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003. There is further information on our page on safeguarding treatments under mental health law. There is also information in a Scottish Government leaflet 'A guide for people involved in criminal justice proceedings'.
Can I appeal against this order?
You can appeal to the court against the order being made. Appeal means to ask the court to change its decision. You and your named person can ask the Mental Health Tribunal to change or stop the order.
Restriction order
When would this be used?
The court can add a restriction order to a compulsion order. This is only done if the court thinks a person is a serious risk to the public. It will order detention in hospital with the powers of a compulsion order. In addition, Scottish Ministers need to give approval to:
- any move to a different hospital
- any periods you spend out of hospital
How long can this order last for?
There is no time limit to the order. Your psychiatrist will review the order annually and submit a report to Scottish Ministers. Ministers must refer your case to the Mental Health Tribunal if:
- your psychiatrist thinks the order should be changed, or that you should be discharged, or
- the Tribunal has not examined your case in the last two years, or
- the Commission tells them to refer your case.
If the Tribunal thinks it is safe to do so, it may order you to be 'conditionally discharged' from hospital. This will mean that you can leave hosiptal but must comply with anything that Scottish Ministers order. For example, there may be restrictions on where you can go and you might be told not to use drugs or alcohol.
Only the Tribunal can decide to lift the restriction order. If they do so, you may still be on a compulsion order.
Can I appeal against this order?
You can appeal to the court against the restriction order being made. Appeal means to ask the court to change its decision. You and your named person can ask the Mental Health Tribunal to change or stop the order.
Hospital direction
When would this be used?
If you are given a prison sentence the court can decide you need treatment for your mental disorder. You should be examined by two doctors, one should be a psychiatrist. They must believe:
- you have a mental illness, learning disability, dementia, or related condition
- you need treatment to keep you and others safe
How long can this order last for?
This order ends at the same time as your prison sentence.
If the order stops before your sentence, you go to prison for the rest of the time left.
If you are in hospital at the end of your prison sentence, your doctor may think you need to stay in hospital. They can ask the Mental Health Tribunal to decide this.
What happens next?
The Scottish Ministers:
- must agree if you move to another hospital
- must agree if you leave the hospital
- must keep reviewing if you need to be on the order
- can sometimes order you to go to prison for the rest of the sentence
Agree to treatment?
You could be treated under Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003. There is further information on our page on safeguarding treatments under mental health law. There is also information in a Scottish Government leaflet, 'A guide for people involved in criminal justice proceedings'.
Can I appeal against this order?
You can appeal to the court against the order being made. Appeal means to ask the court to change its decision. You and your named person can ask the Mental Health Tribunal to change or stop the order. This would mean that you would return to prison.
Transfer for treatment direction
When would this be used? If you are serving a prison sentence and your doctors believe you have a mental disorder and you need treatment to keep you and others safe, then you can be taken to hospital for care and treatment.
How long can this order last for?
This order ends at the same time as your prison sentence.
If the order stops before your sentence, you go to prison for the rest of the time left.
If you are in hospital at the end of your prison sentence, your doctor may think you need to stay in hospital. They can ask the Mental Health Tribunal to decide this.
What happens next?
The Scottish Ministers:
- must agree if you move to another hospital
- must agree if you leave the hospital
- must keep reviewing if you need to be on the order
- can sometimes order you to go to prison for the rest of the sentence
Agree to treatment?
You could be treated under Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003. There is further information on our page on safeguarding treatments under mental health law. There is also information in a Scottish Government leaflet, 'A guide for people involved in criminal justice proceedings'.
Can I appeal against this order?
You can appeal to the court against the order being made. Appeal means asking the court to change its decision. You and your named person can ask the Tribunal to change or stop the order. This would mean that you would return to prison.
If you are in hospital at the end of your prison sentence your doctor may think you need to stay in hospital. They can ask the Tribunal to decide this.