Hospital Orders

Guidance is laid out by the Sentencing Council and the CPS

The Law

Section 38 Interim Hospital Order:

Section 38 of the Mental Health Act 1983 contains the provisions enabling the Crown Court and Magistrates’ courts to make an interim hospital order following conviction for an offence punishable with imprisonment (other than where the sentence for an offence is fixed by law).

It requires the written or oral evidence of two registered medical practitioners, one of whom is employed by the hospital to be specified in the order. The court must be satisfied that the offender is suffering from a mental disorder, and there is a reason to support this such that it may be appropriate for a hospital order to be made.

Arrangements must have been made for the offender to be admitted to hospital within 28 days of the order being made.

The interim order should be for a period not exceeding twelve weeks. It may be further renewed thereafter for 28-day periods, subject to an overall maximum period of twelve months.

Section 37 Hospital Order:

A hospital order authorises the detention of a patient in hospital for medical treatment in place of imprisonment. The order initially lasts for 6 months but can be renewed by the hospital for a further 6 months at a time if the conditions for making the order are still satisfied.

Section 37 MHA 1983

(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order.

(2) (a)the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from a mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; or

(b)the court is 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 him, that the most suitable method of disposing of the case is by means of an order under this section.

Section 41 Restriction Order:

This is available in the Crown Court only as an additional order given with a hospital order.

Section 41 MHA 1983

(1)Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section; and an order under this section shall be known as “a restriction order”.

(2)A restriction order shall not be made in the case of any person unless at least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2)(a) above has given evidence orally before the court.

Section 45A Hybrid Order

Section 45A MHA 1983

The conditions for the order are the same as those for a hospital order. It is used where the court is of the view a penal element is required in addition to hospital treatment. It is only available for offenders aged 21 or over at the point of conviction.

The offender is transferred to hospital within 28 days of making the order. They may be transferred back to prison if the Secretary of State is notified by the offender’s responsible clinician, approved clinician, or by the Tribunal, that:

the offender no longer requires treatment in hospital for mental disorder, or
no effective treatment for the disorder can be given in the hospital in which the offender is detained.

When notified in this way by the responsible clinician, or any other approved clinician, the Secretary of State may:

direct the offender’s removal to a prison (or another penal institution) where the offender could have been detained if not in hospital, or
discharge the offender from the hospital on the same terms on which the offender could be released from prison.

Case Law and Key Judgements

Factors to consider for S37/41 vs S45A: Vowles (Lucinda) [2015] EWCA Crim 45

A judge must therefore consider, where the conditions in s.37 (2) (a) are met, what is the appropriate disposal. In considering that wider question the matters to which a judge will invariably have to have regard to include

(1) the extent to which the offender needs treatment for the mental disorder from which the offender suffers,

(2) the extent to which the offending is attributable to the mental disorder,

(3) the extent to which punishment is required and

(4) the protection of the public including the regime for deciding release and the regime after release.

There must always be sound reasons for departing from the usual course of imposing a penal sentence and the judge must set these out.

The summary of principles: R v Edwards [2018] EWCA Crim 595

First, consider whether a hospital order may be appropriate;
If so, the judge should then consider all sentencing options including a section 45A order;
In deciding on the most suitable disposal the judge should remind himself or herself of the importance of the penal element in a sentence;
To decide whether a penal element to the sentence is necessary the judge should assess (as best they can) 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;
A 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 under section 37/41, they must explain why a penal element is not appropriate.

Various cases have revealed what may be considered in the decision between a Section 41 and a Section 45A.

Whether by the end of a Section 45a sentence, treatment is likely to have been entirely successful, or the effective control of the illness outside a secure hospital entirely assured, such that his release into the community could be contemplated. Westwood v R [2020] EWCA Crim 598
The likelihood of a deterioration of the defendant’s mental illness on return to prison, including the possibility of increasing their risk upon release. Westwood v R [2020] EWCA Crim 598; R v Miller [2021] EWCA Crim 1955
If sentenced under section 45A, the appellant could not, after his release, be compelled to accept medical treatment. And the process for his recall could prove slower and more cumbersome than the process under sections 37 and 41. Westwood v R [2020] EWCA Crim 598; Cleland v R. [2020] EWCA Crim 906 (16 July 2020)
When considering the regime for release, the court may consider that probation officers are not trained to detect the subtle signs of a mental health deterioration, nor have the powers to intervene and arrest any such deterioration: Nelson v R [2020] EWCA Crim 1615
The mental health condition involved does not have to be “treatable” for it to “need treatment” or for the regime following release to favour a Section 41: Cleland v R. [2020] EWCA Crim 906 (16 July 2020) (ASD); R v Miller [2021] EWCA Crim 1955 (ID and psychopathy)