Hybrid mental health orders: a "catch 21" situation?
Sections 45A and 45B of the Mental Health Act 1983 (“MHA”) were inserted on 1 October 1997 by virtue of the Crime (Sentences) Act 1997.
Section 45A MHA relates to a “hospital direction” (as it is called within the legislation itself), though it is often referred to as a “hybrid order”. It can be imposed upon “a person convicted before the Crown Court of an offence the sentence for which is not fixed by law”. Provided two clinicians are satisfied “that he is suffering from mental disorder; that the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and that appropriate medical treatment is available”, the provisions enable the judge to direct the offender’s removal to hospital after conviction for the offence.
At first blush, it would appear that section 45A MHA is an identical provision to section 37 MHA (under which a hospital order can be made). In fact, before imposing a hospital direction the court is required to first consider whether a hospital order would achieve the appropriate outcome. However, a hospital direction is different in that, if the offender’s responsible clinician indicates that continued treatment in hospital is no longer necessary, it provides for the Secretary of State for Justice to direct that the offender should be returned to prison to serve any remaining part of their sentence. With a hospital order, once treatment is no longer necessary, the offender would be subject to release and community care. Thus, section 45A MHA differs from an order under section 37 MHA in that once treatment is no longer necessary, the offender continues to serve out the remainder of their sentence but in a prison. Decisions about release are then taken by the Parole Board, not the Mental Health Review Tribunal system.
For example, a person convicted of manslaughter on the grounds of diminished responsibility may fall within the ambit of section 37 MHA, meaning that the court could impose a hospital order as an alternative to a custodial sentence. If a hospital order under section 37 MHA were imposed, even with a restriction under section 41 MHA, the offender would be released into the community without their liberty being further restricted if the responsible clinician became satisfied that detention in hospital for treatment were no longer needed. The consequence of this is that a convicted offender may be released into the community soon after conviction, irrespective of the seriousness of any offence committed and will not serve the remainder of any potential custodial sentence. On the other hand, a section 45A MHA hospital direction or “hybrid order” provides for the offender to be removed to prison for the balance of their sentence once no longer in need of inpatient care. Consideration for early release would then be governed by the Parole Board in the normal way at the normal time, as if the person had been made the subject of an immediate custodial sentence following conviction.
The hybrid order is designed to ensure that convicted offenders who are in need of necessary treatment for their mental disorder are not denied access to such treatment but also do not end up serving significantly less time in the secure mental health system when they would otherwise be made the subject of a substantial custodial sentence.
The judge in the Crown Court can also issue a “limitation direction” under section 45B MHA. This direction ‘restricts’ the hospital direction in just the same way that section 41 MHA restricts a hospital order under section 37 MHA. If the hospital bed is not immediately available on the day of sentence, provision is made (under section 45A(5) MHA) for the judge to direct that the offender be held in “a place of safety” until it is (provided the offender can be admitted to the hospital within 28 days of the making of the direction).
The “Catch 21” situation
A hospital direction imposed under sections 45A and 45B MHA is only available where “the court considers making a hospital order in respect of [the defendant] before deciding to impose a sentence of imprisonment (“the relevant sentence”) in respect of the offence”.
The difficulty arises when the defendant is under the age of 21 when convicted. In accordance with section 89 of the Powers of Criminal Courts (Sentencing) Act 2000 and R v Danga (Harbeer Singh) [1992] QB 476, a defendant under the age of 21 cannot be lawfully sentenced to a term of imprisonment – any custodial sentence must be a term of detention.
There is nothing within section 45A MHA that indicates that the term “imprisonment” is to include “detention”. The Court of Appeal has held that if the purpose of the provision was to apply to both sentences of imprisonment and sentences of detention it would be expressly stipulated either within the section itself or within an interpretation section.
As the court cannot lawfully impose a sentence of imprisonment upon a defendant under the age of 21 at date of conviction, it is not open to a court to impose an order under sections 45A and 45B MHA upon such a defendant. In R v Jamie Daniel Fort [2013] EWCA Crim 2332, a judgment which was handed down on 13 December 2013, the Court of Appeal held that there is no power to make an order under sections 45A and 45B MHA in relation to a defendant who is under the age of 21 years upon conviction (see particularly paragraphs 76 – 84). That followed the conclusion reached by the Court of Appeal in Attorney General’s Reference No 54 of 2011 [2011] EWCA Crim 2276 per Hughes LJ at paragraph 22.
In the circumstances, in relation to a defendant under the age of 21 at conviction and where a court is satisfied “that he is suffering from mental disorder; that the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and that appropriate medical treatment is available” the appropriate order is a hospital order under section 37 MHA and a restriction order under section 41 MHA. It is not open to the court to impose both a hospital order and a term of custody.
There does not appear to be any explanation as to the gap in the legislation or any reasoned or logical rationale as to why there is a distinction between offenders of 18, 19 and 20 and those of 21 and above which would suggest a deliberate decision to exclude the younger patients from its terms. It may be that the reason why the section is couched in terms of imprisonment is that when it was drafted it was anticipated that not long in the future imprisonment would be extended to all from the age of 18 onwards, but that has not happened.
The Court of Appeal has suggested that those who have the supervision of this legislation should at the very least consider whether there is any reason at all why patients of 18, 19 or 20 should be excluded from the public protection which an order under sections 45A and 45B MHA can give.
This article is intended as interest and information only. It should not be considered legal advice and the reader is encouraged to undertake their own research and study of the legislative changes before relying on the same.
