Offenders with mental health problems are directed to local services
The courts are making insufficient use of the main non-custodial sentence available for addressing mental health problems, according to a charity.
The Sainsbury's Centre for Mental Health blames a lack of confidence in health services.
The mental health treatment requirement (MHRT) can be built into a community order to compel an offender to seek treatment for their problems.
But new government figures show it is used in fewer than 1% of cases.
Between July 2008 and June 2009, 754 MHTRs were handed out, compared with more than 13,000 Drug rehabilitation orders and 5,800 alcohol treatment orders.
Sean Duggan, the joint chief executive of the Sainsbury's Centre for Mental Health, told BBC Radio 4's Law in Action programme: "There isn't the confidence in the probation services to issue the MHRT, because the health services aren't able to provide the treatments that should be available."
Judge Robert Atherton, who sits on the Northern Circuit, feels that often imposing a compulsory order on someone with mental health problems can make things worse.
If they fail to comply with the order, the offender has to return to court and the order is made more onerous, which, Judge Atherton says "puts problem on problem so that they end up failing completely".
Another problem is the lack of knowledge about the treatment requirement. Brighton magistrate Andy Silsby told Law in Action he had never heard of the requirement in the six years he had been a magistrate, saying: "It had never been brought to my attention as an option for sentencing."
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A A Mental Health Court pilot scheme that aims to tackle some of the communication problems is running at the magistrates' courts in Brighton and in Stratford in east London.
Here too, few community orders with MHTRs have been issued. Between January and July, only 39 of the 180 offenders who were deemed to have a problem received a community order with a mental health element and these were not all MHRTs.
But the legal services manager at the magistrates' court in Brighton, Neil Ashton, said this was a sign of success because the court was avoiding unnecessary community orders, and that far from ignoring offenders with mental health problems they were "being served very well" by being given advice and directed to local services that could help them with their problems.
In a statement, the Ministry of Justice said that it was making "significant improvements for people with severe mental health problems in the community as well as in the prison estate, resulting in better access to care and treatment".
The ministry points to the Mental Health Courts as "a new and innovative way to deal with the root causes of offending and therefore work to cut re-offending further".
You can hear Clive Coleman's report in Law in Action on Tuesday 10 November at 1600 GMT and again on Thursday 12 November at 2000 GMT on BBC Radio 4.