Mental Health Act 1983
(as amended)

Law as at 19/11/11

Part III contents

35, 36, 37, 38, 39, 39A, 40, 41, 42, 43, 44, 45, 45A, 45B, 46, 47, 48, 49, 50, 51, 52, 53, 54, 54A, 55

All Parts

I, II, III, IV, 4A, V, VI, VIII, IX, X, Schedules

Overview of the MHA 1983
Plain text for printing
Legislation.gov.uk

See Hospital direction for details.

See Victims' rights to make representations and receive information for information relevant to some Tribunal hearings.

Changes made by Mental Health Act 2007

• Mental disorder no longer split into separate classifications 3/11/08
• Appropriate treatment test replaces treatability test and applies to all patients under long-term detention 3/11/08
• Responsible Clinician/Approved Clinician replaces Responsible Medical Officer 3/11/08

Related cases

Any cases with a hyperlink to this legislation will automatically be added here. There may be other relevant cases without a hyperlink, so please check the mental health case law page.

• AG's ref (no 54 of 2011) (2011) EWCA Crim 2276 — (1) The restricted hospital order was quashed and a six-year IPP imposed. The judge had failed to take into account the differences between the two regimes: (a) release on licence from IPP depends on lack of danger for any reason, whereas release from hospital order depends on lack of danger for medical reasons only; (b) an IPP licence can be revoked for danger resulting from crime, whereas a conditional discharge can only be revoked if the medical condition relapses. It was essential in this case that the power to recall upon criminal relapse was available. (2) The s45A hybrid order regime would have been perfect in this case, but it is only available to those subject to imprisonment; however, the defendant was under 21 and imprisonment is only available to those 21 or over (the court recommended that this be reconsidered). (3) The notional determinate term of 12 years was not unduly lenient. (4) The hearing was adjourned in order to allow for an immediate s47 transfer ..→
• R (D and M) v SSWP (2010) EWCA Civ 18 — (1) That prisoners detained under s47, s47/49 or s45A, in contrast with civil patients or hospital order patients, receive no welfare benefits until their release date is not unlawful discrimination under Article 14 taken with A1P1. (2) On a proper construction of the statutory language, lifers detained under the MHA are entitled to Income Support or State Pension Credit when they reach their tariff expiry date. [Caution.]

• R (EM) v SSWP (2009) EWHC 454 (Admin) — The Regulations which deprive of welfare benefits transferred prisoners (s47/49 and s45A patients until they would be entitled to release if in prison) are lawful; this is because there is enough of a relevant difference between them and civil/s37 patients to justify different treatment (i.e. they have been sentenced to a term of imprisonment to which they remain subject); in general, this applies all determinate and indeterminate sentence prisoners, including post-tariff lifers, technical lifers being the only exception because they had not been considered when the Regulations were drawn up and there is not enough of a relevant difference present.

• R v Ahmed (2012) EWCA Crim 99, (2012) MHLO 178 — (1) The appellant sought a s37/41 restricted hospital order in place of an IPP sentence. (2) The Responsible Clinician argued for a s45A hybrid order, for reasons summarised by the court as follows: 'The appellant is an illegal immigrant. In order to be discharged from hospital he would have to undergo a period of controlled supervision. This would be in appropriate accommodation. Dr Swinton tells us that this is not an option open to an illegal immigrant like the appellant. Thus he cannot be discharged into the community because he cannot undertake the necessary conditioning which would satisfy the hospital that he was safe to be left in the community on his own. As a consequence he has to remain in hospital and he will take up a bed, apparently permanently. This is damaging to the wider public interest. If a section 45A order were made, then although the appellant would receive precisely the same treatment under a section 47 transfer as he currently does, a discharge can ..→
• R v House (2007) EWCA Crim 2559 — (1) The judge was plainly right to pass the sentence of two concurrent life sentences with a s45A order; (2) a minimum term should be specified unless the punitive and retributive element required detention for life and, on the facts, a 9-year minimum term would be set.

• R v Jenkin (2012) EWCA Crim 2557, (2012) MHLO 141 — Having pleaded guilty to GBH with intent (for gouging his girlfriend's eyes out), the appellant was sentenced to life imprisonment with a six-year minimum term, combined with a hospital direction and limitation direction under s45A MHA 1983. He appealed against sentence, arguing for a restricted hospital order or alternatively an IPP sentence. (1) A hospital order means that 'release is dependent on the responsible authority being satisfied that the defendant no longer presents any danger which arises from his medical condition': this would be inadequate as, irrespective of his delusional disorder, the appellant posed a significant risk of serious harm to the public. (2) A life sentence should be reserved for those cases where the culpability of the offender is particularly high or the offence itself particularly grave (R v Kehoe): both those limbs were met in this case. (3) The s45A hybrid order was appropriate as the criteria were met and the disorder was treatable, but when ..→
• R v Stead (2012) EWCA Crim 92, (2012) MHLO 9 — The appellant, who had been sentenced to ten years' detention in a young offender institution together with an indefinite Sexual Offences Prevention Order, successfully argued for the imposition of a hybrid order under MHA 1983 s45A.

See also

• Reference Guide to the Mental Health Act 1983, 5. Hospital and limitation directions, 12. Detention in hospital — chapter 5 (also paragraphs 12.96 and 12.97)
• Mental Health Act 1983 Code Of Practice for England, 33. Patients concerned with criminal proceedings

Law

Power of higher courts to direct hospital admission

45A.—(1) This section applies where, in the case of a person convicted before the Crown Court of an offence the sentence for which is not fixed by law—

(a) the conditions mentioned in subsection (2) below are fulfilled; and

(b) [...] the court considers making a hospital order in respect of him before deciding to impose a sentence of imprisonment ("the relevant sentence") in respect of the offence.

(2) The conditions referred to in subsection (1) above are that the court is satisfied, on the written or oral evidence of two registered medical practitioners—

(a) that the offender is suffering from [mental disorder];

(b) 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

[(c) that appropriate medical treatment is available for him.]

(3) The court may give both of the following directions, namely—

(a) a direction that, instead of being removed to and detained in a prison, the offender be removed to and detained in such hospital as may be specified in the direction (in this Act referred to as a "hospital direction"); and

(b) a direction that the offender be subject to the special restrictions set out in section 41 above (in this Act referred to as a "limitation direction").

(4) A hospital direction and a limitation direction shall not be given in relation to an offender unless at least one of the medical practitioners whose evidence is taken into account by the court under subsection (2) above has given evidence orally before the court.

(5) A hospital direction and a limitation direction shall not be given in relation to an offender unless the court is satisfied on the written or oral evidence of the [approved clinician who would have overall responsibility for his case], or of some other person representing the managers of the hospital that arrangements have been made-

(a) for his admission to that hospital; and

(b) for his admission to it within the period of 28 days beginning with the day of the giving of such directions;

and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety.

(6) If within the said period of 28 days it appears to the Secretary of State that by reason of an emergency or other special circumstances it is not practicable for the patient to be received into the hospital specified in the hospital direction, he may give instructions for the admission of the patient to such other hospital as appears to be appropriate instead of the hospital so specified.

(7) Where such instructions are given—

(a) the Secretary of State shall cause the person having the custody of the patient to be informed, and

(b) the hospital direction shall have effect as if the hospital specified in the instructions were substituted for the hospital specified in the hospital direction.

(8) Section 38(1) and (5) and section 39 above shall have effect as if any reference to the making of a hospital order included a reference to the giving of a hospital direction and a limitation direction.

(9) A hospital direction and a limitation direction given in relation to an offender shall have effect not only as regards the relevant sentence but also (so far as applicable) as regards any other sentence of imprisonment imposed on the same or a previous occasion.

(10)-(11) [...]

Amendments