Last month's article on the use of the insanity defence (Griffith, 2022) highlighted that, where possible, people with a mental disorder should receive care and treatment from health and social services (Home Office, 1990). Even where there is sufficient evidence to show that a person with a mental disorder has committed a crime, prosecutors should give careful consideration to alternatives, such as admission to hospital for treatment, before deciding that a prosecution is necessary (Home Office, 1990). The diversion-into-care approach to managing people with mental disorders who commit offences has long been criticised as endangering public safety and contrary to the criminal justice system's aims of retribution and punishment (Home Office, 1996).
A decision to prosecute a person with a mental disorder is made by the Crown Prosecution Service (CPS) in accordance with guidance and a threshold test set out in its Code, focusing on the seriousness of the offence and whether it is in the public interest to prosecute (CPS, 2018). The more serious the offence, the greater the public interest in prosecution.
Concerns over serious reoffending by patients discharged from hospital following initial diversion from prosecution and prison led to an amendment to the Mental Health Act 1983, introducing a hospital direction and limitation order (Home Office, 1996). The aim of the order was to protect the public from serious, dangerous and persistent offenders who were also in need of treatment for a mental disorder at the time of sentencing (Laing, 1996).
Hospital direction and limitation orders
The Crime (Sentences) Act 1997 introduced hospital and limitation directions into the Mental Health Act 1983. Section 45A of the Mental Health Act 1983 allows the Crown Court to issue a hospital direction and limitation order in the case of a person, aged 21 or over, who has been convicted before the court of an offence punishable by imprisonment, except for murder.
Before issuing the order 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, and at least one of whom must have given evidence orally, that:
- The person is suffering from a mental disorder of a nature or degree which makes it appropriate for the offender to be detained in a hospital for medical treatment, and
- Appropriate medical treatment is available and
- Written or oral evidence from the person's approved clinician or managers of the detaining hospital confirm that arrangements have been made for the person to be admitted to that hospital within 28 days of the order being issued.
Hospital and limitation directions are used by the Crown Court in cases of people with mental disorders where a penal element is considered appropriate, based on the culpability of the person and seriousness of the crime.
The judge in the case will pass a sentence of imprisonment with a hospital direction and limitation. The person will then be admitted to hospital for treatment of their mental disorder. The limitation direction prevents the person being discharged from hospital. The person will, instead, be transferred to prison to complete their sentence when well enough to do so. This is why the hospital direction and limitation order is also referred to as a ‘hybrid order’.
The use of hospital direction and limitation orders was initially only available in cases where the person convicted was experiencing a psychopathic disorder (Crime (Sentences) Act 1997, section 46). When the legal classification of mental disorders was amended by the Mental Health Act 2007, the order became available to all those with a mental disorder convicted by the Crown Court (R v Vowles [2015]).
Hospital orders
When a person with a mental disorder is convicted by a Court and evidence is presented that the person's mental disorder requires treatment, the Court will consider issuing a hospital order under section 37 of the Mental Health Act 1983 so the person can be detained in hospital for the treatment of their mental disorder. A hospital order has no penal element and effectively moves the person away from the criminal justice system into the care of mental health services, where the person has similar rights to those detained for treatment under the civil provisions of the Mental Health Act 1983. In cases where it is considered necessary to protect the public from serious harm, the hospital order can be made subject to a restriction under section 41 of the Mental Health Act 1983 that prevents the person's discharge, leave or transfer from hospital without the consent of the Secretary of State for Justice.
The key difference between a hospital order and a hybrid order is the inclusion of the penal provision, punishment by imprisonment, in the hybrid order. A person in recovery from their mental disorder who is subject to a hybrid order will be transferred to prison to complete their sentence. A person in recovery and subject to a hospital order can be discharged by their responsible clinician unless there is a restriction order where the consent of the Secretary of State is required. Even with a restriction order the person would remain in hospital and not be moved to prison (Mental Health Act 1983, section 41).
When should the courts use hybrid orders?
The Sentencing Council, which issues guidance to judges on the sentencing of people convicted of criminal offences, now requires judges to consider the use of hybrid orders with the penal element before hospital orders. Judges must now give written reasons why a hybrid order was not suitable in cases where they opt to impose a hospital order (Sentencing Council, 2020).
In R v Edwards [2018] the Court of Appeal summarised the principles to be considered by those sentencing people with mental disorders when deciding between a hospital order under section 37 and 41 of the Mental Health Act 1983 and a hybrid order under section 45A of the 1983 Act. Judges are required to consider the following:
- Whether a hospital order may be appropriate
- Then consider all sentencing options, including a hybrid order
- Decide on the most suitable disposal. The judge should remind him- or herself of the importance of the penal element in a sentence
- Decide whether a penal element to the sentence is necessary, assess the offender's culpability and the harm caused by the offence. The fact that an offender would not have committed the offence but for their mental illness does not necessarily relieve them of all responsibility for their actions
- Failure to take prescribed medication is not necessarily a culpable omission; it may be attributable in whole or in part to the offender's mental illness
- If the judge decides to impose a hospital order, they must explain why a penal element is not appropriate.
In R v Nelson [2020] the Court of Appeal held that a hybrid order was suitable where:
- Notwithstanding the offender's mental disorder, a penal element to the sentence was appropriate; and
- The offender had a mental disorder where there were real doubts that he would comply with any treatment requirements in hospital.
In R v Westwood [2020] the Court of Appeal held that a man, sentenced to 21 years imprisonment for manslaughter by reason of diminished responsibility, had low culpability for the offence because of his mental disorder. The judge had therefore erred in sentencing him to imprisonment with a hybrid order. The Court of Appeal imposed a hospital order with restriction under sections 37/41 of the Mental Health Act 1983 instead.
Conclusion
Judges are required to consider imposing a hybrid order under section 45A of the Mental Health Act 1983 when sentencing a person with a mental disorder who has been convicted of a crime punishable by imprisonment. The penal element of the hybrid order is more in line with the aims of the criminal justice system than diversion to mental health services that results from the imposition of a hospital order under section 37/41 of the Mental Health Act 1983.
Crown Court judges are now required to give written reasons why a hybrid order was not suitable before imposing a hospital order.
KEY POINTS
- The diversion-into-care approach to managing people with mental disorders who commit offences has long been criticised as a potential danger to public safety
- Hospital and limitation directions are used by the Crown Court in cases of people with mental disorders where a penal element is considered appropriate
- Under the directions, a person imprisoned by the Court is initially admitted to hospital for treatment of their mental disorder then transferred to prison to complete their sentence when well enough to do so
- Judges must now give written reasons why a hybrid order was not suitable in cases where they opt to impose a hospital order