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Patients or prisoners? Time to reconsider the voting rights of mentally disordered offenders

  • Gareth Rees (a1) and James Reed (a1)
Summary

Although the Representation of the People Act 2000 permits most psychiatric in-patients to register on the electoral register, transferred prisoners and those admitted to hospital under hospital orders remain disenfranchised by law. This article clarifies the voting rights of individuals receiving in-patient psychiatric care and contends that the selective disenfranchisement of some mentally disordered offenders is problematic, discriminatory and may breach international human rights law. There are therefore strong arguments for the UK government to address this long-standing inequality before the next general election.

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Copyright
This is an open-access article published by the Royal College of Psychiatrists and distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.
Corresponding author
Correspondence to Gareth Rees (garethrees8@doctors.org.uk)
Footnotes
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Declaration of interest

None.

Footnotes
References
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1 Hale, B. Mental Health Law (5th edn). Sweet & Maxwell, 2010.
2 Brazier, M. Medicine, Patients and the Law (4th edn). Penguin, 2007.
3 Crown Prosecution Service. Mentally Disordered Offenders. CPS, 2014. Available at http://www.cps.gov.uk/legal/l_to_o/mentally_disordered_offenders/ (last accessed 15 February 2015).
4 Hirst v the United Kingdom (No 2) 74025/01 (2005) ECHR 681.
5 Home, A, White, I. Prisoners' Voting Rights (Standard Note: SN/PC/01764). House of Commons Library, 2014.
6 Electoral Commission. Who is eligible to vote at a UK general election? Electoral Commission, 2015. Available at http://www.electoralcommission.org.uk/faq/voting-and-registration/who-is-eligible-to-vote-at-a-uk-general-election (last accessed 15 February 2015).
7 McIntyre, J, Yelamanchilli, V. Uptake and knowledge of voting rights by adult in-patients during the 2010 UK general election. Psychiatrist 2012; 36: 126–30.
8 UK Parliament. General election turnout. UK Parliament, 2015. Available at http://www.parliament.uk/about/living-heritage/transformingsociety/electionsvoting/chartists/contemporarycontext/electionturnout/ (last accessed 15 April 2015).
9 Grisso, T, Appelbaum, PS. The MacArthur Treatment Competence Study. III: Abilities of patients to consent to psychiatric and medical treatment. Law Human Behav 1995; 19: 149–74.
10 Rees, G. Suffrage or suffering? Voting rights for psychiatric in-patients. Br J Psychiatry 2010; 197: 159.
11 Electoral Commission. Part B – Entitlement to Register. Electoral Commission, 2008 (http://www.electoralcommission.org.uk/___data/assets/pdf_file/0007/43954/Part-B-Entitlement-to-register-March-2010.pdf).
12 Department for Constitutional Affairs. The UK Government's response to the Grand Chamber of the European Court of Human Rights judgment in the case of Hirst v The United Kingdom. DCA, 2006.
13 Zigmond, T. A Clinician's Brief Guide to the Mental Health Act (3rd edn). RCPsych Publications, 2014.
14 Mental Disability Advocacy Centre. Venice Commission backs right to vote. MDAC, 2011. Available at http://mdac.org/en/19/12/2011/venice_commission_backs_right_to_vote (accessed 15 February 2015).
15 Emerson, P. Defining Democracy (2nd edn). Springer, 2012.
16 The Guardian. UK 2015 general election results in full? The Guardian, 2015; 7 May. Available at http://www.theguardian.com/politics/nginteractive/2015/may/07/live-uk-election-results-in-full (accessed 20 May 2015).
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BJPsych Bulletin
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  • EISSN: 2056-4708
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Patients or prisoners? Time to reconsider the voting rights of mentally disordered offenders

  • Gareth Rees (a1) and James Reed (a1)
Submit a response

eLetters

Voting and mentally disordered offenders: a Scottish (and Post-Brexit) supplementary

Alasdair D Forrest, ST4 in Forensic Psychiatry and Medical Psychotherapy, Royal Cornhill Hospital
Michael W Turner, CT3 in Psychiatry, Royal Cornhill Hospital
Daniel M Bennett, Honorary Senior Lecturer and Consultant Forensic Psychiatrist, University of Aberdeen and Royal Cornhill Hospital
25 August 2016

Rees and Reed advocate expanding the electoral franchise to convicted mentally disordered offenders [1], referring to a judgment of the European Court of Human Rights. The current prime minister has spoken in favour of withdrawing from jurisdiction of the Court [2] – a possibility in the era of Brexit – so their suggestion is unlikely to come to pass. However, they also provide a helpful summary of which mentally disordered offenders have the right to vote. We would like to reply with a summary of the situation in Scotland, which was notably omitted from their editorial.

The Representation of the People Act 1983 was amended in 2000 and has specific provisions for Scotland. Patients detained on civil provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 are eligible to vote by virtue of the amended 1983 Act, as are those subject to guardianship orders under the Adults with Incapacity (Scotland) Act 2000. Remand prisoners and civil prisoners are also eligible to vote.

Those at the pre-trial stage in Scotland may be detained in hospital on Assessment Orders or on Treatment Orders. As untried persons, they can vote. By virtue of Section 3A(3) of the amended 1983 Act, those subject to one of the various psychiatric disposals are ineligible to vote. These are a Compulsion Order, which authorises hospital treatment, or a Hospital Direction, which authorises hospital treatment and return to prison when well enough, or a Compulsion Order and Restriction Order, which involves special restrictions. Those found unfit for trial and subject to a temporary Compulsion Order cannot vote, neither can those admitted from prison on a Transfer for Treatment Direction.

That is all similar to England. However, in Scotland, patients can be subject to a unique form of community-based criminal detention without a precise English analogue. This is a Compulsion Order without a provision under Section 57A(2)(8)(a) to authorise detention in hospital. Such patients are ineligible to vote by a strict reading of the amended 1983 Act, which was probably not written with such a scenario in mind. Conditionally discharged restricted patients, living in the community, are also ineligible.

Even if the current position in Scotland is clear, the future is less clear. The Scotland Act 2016 has expanded the legislative remit of the Scottish Parliament with respect to electoral law and the voting age for local and Holyrood election has been lowered to 16, giving different franchises for elections to Holyrood and Westminster.

So Holyrood could now legislate to expand the franchise for Scottish elections. However, there may be little appetite for Rees and Reed’s recommendations, since the Scottish Parliament did not allow prisoners to vote in the 2014 independence referendum – a decision upheld in the Court of Session and the Supreme Court of the United Kingdom [3].

References

1 Rees G, Reed J. Patients or prisoners? Time to reconsider the voting rights of mentally disordered offenders. BJPsych Bull 2016; 40: 169–172.

2 Asthana A, Mason R. UK must leave European convention on human rights, says Theresa May. The Guardian, 2016; 25 April. Available at: http://www.theguardian.com/politics/2016/apr/25/uk-must-leave-european-convention-on-human-rights-theresa-may-eu-referendum

3 Moohan and another v Lord Advocate [2014] UKSC 67. Available at: https://www.supremecourt.uk/decided-cases/docs/UKSC_2014_0183_Judgment.pdf

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