The sentencing framework for community orders is set out in Part 12 of the Criminal Justice Act 2003. This provides courts with options to create a community order with one or more requirements from a menu of twelve: 

• Unpaid work (known as community payback);
• Residence (requiring an offender to reside at a place specified in the court order);
• Mental health treatment;
• Drug rehabilitation;
• Alcohol treatment;
• Supervision (requiring an offender to attend appointments with probation officer);
• Attendance centre (requiring offenders under 25 to attend a particular centre at specified times);
• Prohibited activity (requiring an offender to refrain from participating in certain activities as set out in the court order);
• Curfew (confining an offender to his or her home for a specified number of hours per day);
• Exclusion (prohibiting the offender from entering a place specified in the court order);
• Programme (requiring the offender to participate in an accredited programme such as anger management courses);
• Activity (requiring the offender to participate in certain activities such as attend basic skills classes).

The National Offender Management Service provides guidance on the implementation of Drug Rehabilitation Requirements, Alcohol Rehabilitation Requirements, and Mental Health Treatment Requirements. 

A psychiatrist may assist the court by considering what factors destabilise the defendant’s mental health and therefore increase the risk of further offending. For example:

• the availability of stable housing
• the severity and impact of drug misuse
• the severity and impact of alcohol misuse
• interpersonal difficulties which may benefit from therapeutic programmes

A psychiatrist may also consider recommending the Probation Service consider management within the Offender Personality Disorder Pathway. Offenders on this pathway are those who are unlikely to be willing or able to access other types of services or, at least, are unable to do so without additional support.

Part 9 of the Sentencing Act 2020

Available in the Crown Court and Magistrates’ Court

This may be applied to a Community Order or Suspended Sentence Order where the offender is suffering from a mental health condition that requires and is susceptible to treatment, but does not necessitate a treatment under a hospital or guardianship order.

A Section 12 registered medical practitioner assessment is not required to make this order; it can be completed by any suitability qualified mental health practitioner.

Treatment may be as a resident in a care home or hospital or under a registered medical practitioner (including a GP) or registered psychologist. The court must be satisfied appropriate arrangements have been agreed prior to making such an order.

The offender must consent to this order and treatment cannot be compelled. Enforcement of an MHTR by probation is concerned with breaching the conditions of the order but not the treatment itself. An MHTR is not court ordered treatment it is treatment entered into by an individual and endorsed by the court.

The probation provider’s role includes, for example:

• Supervising the offender’s attendance at the specified treatment activity appointments
• Responding appropriately to the offenders’ failure to comply with the terms of the MHTR
• Managing breach or recall to court activity
• Maintaining day-to-day communication with mental health treatment providers.

Further Guidance:

National Offender Management Service – Mental Health Treatment Requirements: Guidance on Supporting Integrated Delivery

Royal College of Psychiatrists – Mental health treatment requirements (MHTRs): A Royal College of Psychiatrists’ Position Statement on customising community sentencing for offenders with mental disorder 

Section 5(1) and Schedule 1A Criminal Procedure (Insanity) Act 1964

Available in the Crown Court

A supervision order enables treatment to be given to the defendant. It is non-punitive, intended to provide a framework for treatment, and is supervised by either a social worker or probation officer. It may last no more than two years and can include a requirement to be treated by or under a registered medical practitioner.

A requirement for medical treatment requires written or oral evidence from two or more registered medical practitioners that the mental condition of the supervised person

• is such as requires and may be susceptible to treatment; but
• is not such as to warrant the making of a hospital order within the meaning of the Mental Health Act 1983.

Section 37 MHA 1983

Available in the Crown Court and Magistrates’ Court for defendants over 16 years of age convicted of an imprisonable offence. 

The court must be satisfied on the written or oral evidence of two doctors, at least one of whom must be approved under section 12; that the offender is  suffering from a mental disorder of a nature or degree which warrants the offender’s reception into guardianship under the Act and;

The court must be of the opinion having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with the offender, that a guardianship order is the most suitable method of dealing with the case.

The court must also be satisfied that the local authority or proposed private guardian is willing to receive the offender into guardianship. The guardian may be a local authority, or an individual such as a relative of the patient, who is approved by a local authority

Guardians have three specific powers:

• The residence power allows guardians to require patients to live at a specified place
• The attendance power lets guardians require the patient to attend specified places at specified times for medical treatment, occupation, education or training.
• The access power means guardians may require access to the patient to be given at the place where the patient is living, to any doctor, approved mental health professional, or other specified person.