Jonathan Wilson, 'Mental health: update' (Legal Action, February 2019)

Case law update Jonathan Wilson considers mental health case law from the past year relating to deprivation of liberty in the community, tribunal procedure, detention criteria, pocket money, after-care and other matters.

About the article

This article was first published in Legal Action magazine and is reproduced by kind permission. This article and subscription details are available on their website. The previous mental health article was: Jonathan Wilson, 'Mental health: update' (Legal Action, February 2018). The next mental health article is: Jonathan Wilson, 'Mental health: update' (Legal Action, March 2020). Some cases may have been appealed since the article was written. You should check the relevant Mental Health Law Online pages, as these normally contain details of any appeals.

Jonathan Wilson considers mental health case law from the past year relating to deprivation of liberty in the community, tribunal procedure, detention criteria, pocket money, after-care and other matters.

Deprivation of liberty in the community

Conditional discharge and deprivation of liberty

Secretary of State for Justice v MM

The patient (MM) had invited the First-tier Tribunal (Mental Health) (FTT) to rule on whether it would be lawful to discharge him from detention under Mental Health Act (MHA) 1983 s37/41 on condition that he comply with a care plan that would amount to a deprivation of liberty by requiring him to live at a particular place, from which he would not be free to leave, and from which he would not be allowed out without an escort.

The Court of Appeal reversed the Upper Tribunal (UT) decision and agreed with the FTT decision that it had no such power (see [2015] UKUT 644 (AAC)M; April 2016 Legal Action 32 and [2017] EWCA Civ 194M; February 2018 Legal Action 29). The Supreme Court dismissed the patient’s appeal, deciding four to one that the MHA 1983 does not permit either the FTT under s73(2) or the secretary of state under s42(2) to impose conditions amounting to detention or a deprivation of liberty on a conditionally-discharged restricted patient.

Lady Hale, giving the majority judgment, concluded that, although the Act says nothing about what the conditions may be, there are the following compelling reasons not to construe the relevant sections in the way proposed by the patient.

High principle

The power to deprive a person of liberty is an interference with the fundamental right to liberty of the person, which engages the rule of statutory construction known as the principle of legality: fundamental rights cannot be overridden by general or ambiguous words, and in the absence of express language or necessary implication to the contrary, the courts presume that even the most general words were intended to be subject to the basic rights of the individual. The wording of the sections was as general as it is possible to be, and parliament had not been asked to consider whether they included a power to impose a form of detention.


The patient’s willingness to comply may be motivated more by the desire to get out of hospital than by a desire to stay in the community setting. There are no coercive powers over conditionally-discharged patients (breach of conditions is not a criminal offence or automatic ground for recall). The patient could withdraw consent at any time and demand to be released. While it is possible to bind oneself contractually not to revoke consent to a temporary deprivation of liberty, here there is no contract.

Scheme of the MHA 1983

The MHA 1983 provides in detail for two forms of detention: detention for no more than 36 hours in a place of safety under ss135 and 136, and detention in a hospital. In each of these cases, including for patients' leave of absence under MHA 1983 s17, the Act gives specific powers (to convey, detain, and retake following absconsion) for which there is no equivalent for conditionally-discharged patients.


The different periods of tribunal eligibility for hospital order patients and conditionally-discharged patients are at least an indication that it was not thought that the patients required the same degree of protection as those deprived of their liberty.

The patient’s appeal was therefore dismissed.

Community treatment orders and deprivation of liberty

Welsh Ministers v PJ

In this case, the patient (PJ) took the opposite view: he argued that he was deprived of his liberty by a community treatment order (CTO), that this was unlawful, and that he therefore should be discharged from it.

He met with mixed success. The Mental Health Review Tribunal (MHRT) for Wales upheld the CTO, saying he was not deprived of his liberty and in any event the CTO framework must take precedence over any human rights issues. His appeal to the UT was successful, though the case was not remitted to the MHRT as by then he had been discharged from the CTO (see [2015] UKUT 480 (AAC)M; April 2016 Legal Action 31). The Court of Appeal decided that a CTO provides the power to provide for a lesser restriction of movement than detention in hospital that may nevertheless be an objective deprivation of liberty provided it is used for the specific purposes set out in the CTO scheme (see [2017] EWCA Civ 194M; February 2018 Legal Action 29).

Finally, the Supreme Court overturned that decision, allowing PJ’s appeal, deciding unanimously that there is no power to impose conditions in CTOs that have the effect of depriving patients of their liberty. In doing so, the court took an approach that was consistent with the approach taken to conditional discharge in MM.

Existence of deprivation of liberty

In the Supreme Court, the Welsh ministers adopted a new argument: that conditions cannot deprive patients of their liberty because they cannot be enforced (there is no power to detain or impose treatment, no sanction apart from recall, and no power to recapture) and, because they do not amount to deprivation of liberty, they can lawfully be imposed. This argument was rejected. It is necessary to look at the ‘concrete situation’ and decide whether in fact there is a deprivation of liberty:

Otherwise, all kinds of unlawful detention might go unremedied, on the basis that there was no power to do it. That is the antithesis of what the protection of personal liberty by the ancient writ of habeas corpus, and now also by article 5 of the [European Convention on Human Rights (ECHR)], is all about (para 18).

The Welsh ministers also argued that the ‘acid test’ of deprivation of liberty (whether the person is under continuous supervision and control and not free to leave: Cheshire West and Chester Council v P [2014] UKSC 19M) should be modified in cases where the object is to enhance rather than further curtail the patient’s freedom. This argument was also rejected because ‘purpose’ is not relevant to the question of whether there is a deprivation of liberty (also, Lady Hale stated that the Supreme Court was not being asked to decide on that issue).

Power to deprive of liberty

Lady Hale stated that the Court of Appeal had put the cart before the horse by wrongly stating the purpose of a CTO and wrongly working back from that to imply powers that were not there. Her approach was to start from the proposition that to deprive people of their liberty is to interfere with a fundamental right, so the principle of legality applied (see ‘High principle’ in MM, above). She said that the purpose of the CTO was not ‘the gradual reintegration of the patient into the community’ (as stated by the Court of Appeal) but ‘to allow suitable patients to be safely treated in the community … to help prevent relapse and any harm … that this might cause … to help patients to maintain stable mental health outside hospital and to promote recovery’ (as stated in the MHA 1983 Code of Practice (Department of Health, 2015), para 29.5, page 328) and that the strict test for a necessary implication of a deprivation-of-liberty power was not met as there was no reason to suppose that parliament would have included such a power in the MHA 1983 had it been thought of.

She also relied on the wording of the Act (similarly as in MM, under ‘Scheme of the MHA 1983’, above), saying that as parliament expressly decided not to allow compulsory treatment on a CTO, it could not have intended an even greater interference with fundamental rights, and that the CTO provisions have none of the detailed rules to be expected if detention in a community facility were to be authorised.

Finally, Lady Hale stated that she had reached her conclusions purely on common law grounds, but expressed doubt that the European Court of Human Rights (ECtHR) would regard the ill-defined and ill-regulated power implied into the MHA 1983 by the Court of Appeal as meeting the ECHR standard of legality.

Tribunal’s powers

The patient argued that if the tribunal finds on the facts that a community patient is being deprived of liberty then, either under its discretion or because ‘appropriate treatment’ cannot be provided under unlawful detention, it should order discharge. This might or might not lead to re-detention.

Lady Hale described the problem as more theoretical then real, and decided that – while the patient’s situation may be relevant to the tribunal’s discharge criteria, and the tribunal may explain the true legal effect of a CTO (for the responsible clinician (RC) to act on that information) – if a patient is being unlawfully detained then the remedy is either habeas corpus or judicial review. She also noted that the information provided to the patient under MHA 1983 s132A would include the legal position as explained in her judgment, and that a conscientious RC can be expected to abide by it.

Inherent jurisdiction and deprivation of liberty

Hertfordshire CC v AB

This judgment was handed down by Gwynneth Knowles J shortly after the Supreme Court decision in MM. AB had capacity to consent to the care, support and accommodation arrangements that were being provided as part of his conditional discharge but, following the MM case, there was an unlawful deprivation of liberty.

AB argued that the High Court should extend its inherent jurisdiction so that it could regularise the position of a capacitous detained mental health patient who is subject to a deprivation of liberty as part of a conditional discharge from hospital. Gwynneth Knowles J agreed to this course of action, noting that, first, it was clear that there was no legislative provision governing AB’s situation in that the MHA 1983 provided no remedy; second, extension of the inherent jurisdiction was in the interests of justice; and, third, there were sound and strong public policy justifications.

The court’s order authorised the deprivation of liberty for 12 months; required the council to apply to court if the restrictions increased, and no less than one month before the expiry of the authorisation; and provided for a review on the papers unless a party requested or the court required an oral hearing.


The only clear-cut solution is legislative reform. The final report of the Independent Review of the MHA 1983 (Modernising the Mental Health Act: increasing choice, reducing compulsion, Department of Health and Social Care, December 2018) stated (on page 195):

Given the Supreme Court judgment, we suggest that the government should legislate to give the tribunal the power to discharge patients with conditions that restrict their freedom in the community, potentially with a new set of safeguards.

It also stated (footnote 137 on page 126) that ‘there is a strong case that the tribunal should be able to authorise a conditional discharge that amounts to a deprivation of liberty’.

In the meantime, as always, ways will be found to muddle through. In January 2019, HM Prisons and Probation Service (HMPPS) (an executive agency sponsored by the Ministry of Justice) published an operational policy in relation to patients affected by the issue of discharge conditions that amount to a deprivation of liberty (Mental Health Casework Section – guidance: discharge conditions that amount to deprivation of liberty, January 2019). The aim is to ensure that, where appropriate, restricted patients can continue their rehabilitation in a community-based setting.

For patients who lack capacity to consent to deprivation of liberty and the risk is to themselves, the January 2019 policy is to allow conditional discharge with deprivation of liberty authorised under the Mental Capacity Act (MCA) 2005. For patients who lack capacity and the risk is primarily to others, and also for patients who have capacity, the policy, if further treatment and rehabilitation can be given in a community setting, is to consider use of long-term MHA 1983 s17 escorted leave for an initial period of up to 12 months. The policy takes the view that use of the inherent jurisdiction, as in AB (above), is not the correct approach. For patients already on conditional discharge, the following options will be considered: (a) variation of conditions; (b) recall, with or without instantaneous grant of escorted leave to the current placement; (c) absolute discharge; (d) referral to the tribunal. The policy mentions reassessing patients who present risks to themselves in order to see if they lack capacity after all, which may make a MCA 2005 authorisation possible.

Difficulties, though probably not insurmountable ones, may arise from the authorities on ‘long leash’ s17 leave (the most recent being KL v Somerset Partnership NHS Foundation Trust [2011] UKUT 233 (AAC)M), the probable need for a care home to seek a concurrent deprivation of liberty safeguards (DoLS) authorisation (MCA 2005 Sch A1 para 24, which conflicts with the policy), and the likelihood that the liberty protection safeguards (the proposed replacement for DoLS) will only allow deprivation of liberty to prevent harm to the cared-for person. It might have been simpler to have embraced the inherent jurisdiction idea as a counterpart to the Court of Protection’s powers over patients lacking capacity, and/or applied the long-term leave policy equally to patients with and without capacity.

The Supreme Court decision in MM has wrongly been understood as being about consent – eg, the report of the Independent Review of the MHA 1983 said (on page 194) that it meant ‘that patients cannot consent to conditions attached to their discharge from hospital, if the conditions in effect deprive them of their liberty’ – when in fact the decision was based purely on statutory construction of the powers to discharge conditionally. The Supreme Court did not fully address MM’s argument that his ‘valid consent’ to confinement meant that the subjective element of deprivation of liberty was not present, and that consequently there was no deprivation of liberty and no problem with the proposed conditional discharge. This is something that the ECtHR could consider. The logical answer, though, must be that there can be no ‘valid consent’ to confinement if confinement would occur whether or not consent is given.

The Supreme Court also did not fully address MM’s argument that the unjustified different treatment of patients with and without capacity was in breach of ECHR article 14 (in conjunction with article 5 or article 8). Lady Hale stated that even if there were an incompatibility ‘it would make no difference to the outcome of this case’ (para 27), which is a surprising conclusion given that MM had been arguing for a declaration of incompatibility in those circumstances. The ECtHR could consider the article 14 issue in more detail, although it may be that a willingness to use long-term escorted leave and/or the High Court’s inherent jurisdiction sufficiently reduces the difference in treatment between the two categories of patient.

It is understood that MM plans to make an application to the ECtHR.

Conditions of detention

Djaba v West London Mental Health NHS Trust

  • UKSC 2017/0217,
  • 15 March 2018

The patient in this case (Mr Djaba) was detained in a ‘super seclusion suite’ in Broadmoor hospital and argued that his detention was not proportionate in a way that complied with ECHR article 5. The Court of Appeal decided that the tribunal’s powers were limited to assessing the statutory criteria (see [2017] EWCA Civ 436M; February 2018 Legal Action 30).

The Supreme Court refused him permission to appeal, stating that, while it cannot be ruled out that the conditions of a patient’s detention in hospital might be relevant to the detention criteria and whether continued detention is compatible with article 5, in this case it was clear that the criteria were met and therefore there was no violation of article 5. The Supreme Court also stated that the most unusual conditions of the patient’s detention might well found a claim under articles 3 and 8, but this would be in judicial review or Human Rights Act 1998 s7 proceedings rather than before the tribunal as currently constituted.

Capacity to make tribunal application

VS v St Andrew’s Healthcare

In this case, UTJ Jacobs decided that the capacity required by a patient to bring proceedings before the FTT in its mental health jurisdiction is as follows:

The patient must understand that they are being detained against their wishes and that the First-tier Tribunal is a body that will be able to decide whether they should be released (para 19).

This is a lower threshold than the capacity to conduct proceedings and is consistent with the approach in the Court of Protection, which ‘simply requires P to understand that the court has the power to decide that he/she should not be subject to his/her current care arrangements’ (RD v Herefordshire Council [2016] EWCOP 49B at para 86(1)(a)).

The legal representative appointed under Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 SI No 2699 r11(7)(b) requested to withdraw the application in the best interests of the patient (VS), but the FTT refused to consent ‘as the patient had made an application for a hearing when he had capacity and had not specifically given instruction to his solicitor to withdraw’ (see para 22).

The UT confirmed that it is permissible to request withdrawal in these circumstances. However, on the facts, having been presented with a clash between the desire of VS to come before a tribunal and the solicitor’s assessment of what was in his best interests, the tribunal was entitled to give effect to the patient’s own wish for the tribunal to decide his case.

Finally, UTJ Jacobs stated that when a tribunal lacks jurisdiction, it should strike out the proceedings, but if the proceedings were conducted fairly then the use of withdrawal rather than strike-out is unlikely to be a material error of law.

Non-disclosure and covert medication

M v Abertawe Bro Morgannwg University Health Board

The MHRT for Wales gave a direction prohibiting the disclosure to the patient of information relating to covert medication. MHRT for Wales Rules 2008 SI No 2705 r17 states that the tribunal must give a direction prohibiting the disclosure of a document or information to a person if it is satisfied that: (a) such disclosure would be likely to cause that person or some other person serious harm; and (b) having regard to the interests of justice that it is proportionate to give such a direction.

It was agreed between the parties that disclosure was likely to cause serious harm to M. The issue was therefore whether the second limb of the test was met. His lack of mental capacity was relied on in finding that any disadvantage or prejudice flowing from withholding the information ‘is outweighed by the amelioration of the risks that would arise to Mr M and others if that information were disclosed to him’ (see para 28). That decision was challenged on appeal.

The trust disclosed during the appeal proceedings that covert medication had ceased three months before the MHRT hearing, and argued that therefore the appeal was academic. UTJ Mitchell disagreed, as there was a realistic prospect of the same issue arising in future hearings.

In RM v St Andrew’s Healthcare [2010] UKUT 119 (AAC)M, the UT had previously held that when considering the ‘interests of justice’, the key test to be applied is whether or not non-disclosure of the document or information would allow the patient to make an effective challenge to detention. In RM’s case, without knowing that he was being covertly medicated the patient would have been unable effectively to challenge his detention, so the non-disclosure decision was set aside and remade.

M’s case differed in that he lacked the capacity to appoint a representative or to conduct proceedings; however, the tribunal’s obligation under the overriding objective to ensure, so far as practicable, that the patient is able to participate fully in the proceedings does not disappear upon the appointment of a legal representative. The tribunal’s ‘participative duty’ is consistent with the Law Society’s January 2015 guidance to representatives (Representation before mental health tribunals, Law Society practice note, 22 January 2015)[1] that ‘the closer the patient is to having capacity, the greater the weight you must give to their wishes in seeking to formulate and advance submissions on their behalf’.

The tribunal had failed to turn its mind to the extent to which (despite his lack of capacity to conduct proceedings) M was capable of participating in proceedings before addressing the test for non-disclosure. The appeal was allowed and the matter remitted to the tribunal to remake its decision.

In the course of the judgment, it is also stated what, while the two limbs of r17 are independent tests that are not to be merged, the nature of the likely serious harm must be relevant once the tribunal goes on to decide whether, having regard to the interests of justice, non-disclosure would be proportionate.

Comment: This case concerned the Welsh tribunal rules, but the only material difference is that if the two limbs of the test are met, the MHRT for Wales is obliged to make a non-disclosure direction whereas, under Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 r14, the English tribunal is merely empowered to do so. In practice, the approach appears to be the same.

The UT made various criticisms of the evidence in this case (including the lack of any evidence at all about the patient’s capacity, the best interests decision-making process or policy on covert medication, the SOAD (second opinion appointed doctor) certificate, or an accurate chronology), which should be useful for other cases.

‘Nature’ of mental disorder

LW v Cornwall Partnership NHS Trust

The UT in CM v Derbyshire Healthcare NHS Foundation Trust [2011] UKUT 129 (AAC)M; July 2011 Legal Action 36 summarised previous Administrative Court decisions as follows:

If the nature of a patient’s illness is such that it will relapse in the absence of medication, then whether the nature is such as to make it appropriate for him to be liable to be detained in hospital for medical treatment depends on an assessment of the probability that he will relapse in the near future if he were free in the community and on whether the evidence is that without being detained in hospital he will not take the medication … (para 12).

In the current case, the patients argued that in detention cases there was a principle that proximity in time between discharge and the likely need for readmission determined the decision on discharge, and that this principle applied equally to discharge from a CTO.

UTJ Ward considered the statutory framework of CTOs and the legislative purposes behind them, and concluded, primarily on that basis, that in cases where there is a risk of a relapse that might necessitate recall, it will be a relevant consideration when it is thought likely such a relapse will occur. However, other factors, including the risk to the patient and/or others if a relapse were to occur, may also be relevant, and there is no requirement for likely relapse to be ‘soon’, ‘in the near future’ or within the permitted duration of a CTO.

Addressing the patients’ arguments on the analogy between detention and CTO cases, he stated that while there are some parallels between the s3 regime and CTOs, they are not such that the same principles necessarily apply to both. To the extent necessary to reach a view on the detention cases, he stated that neither of the previous judgments cited in CM provided an authoritative basis for the views (that imminence of relapse is the only factor or need be in the near future) expressed in the paragraph quoted above.

In applying this decision to the facts, UTJ Ward stated that the FTT was 'entitled to take risk into account and that involves taking into account the consequences if the risk materialises as well as the possibility that it may’ (para 71). Each patient's appeal was unsuccessful.

Reasons and misdirection

M v An NHS Trust

  • [2017] MHLO 39 (UT),
  • 28 April 2017

In this case (published in January 2018), UTJ Jacobs complained that, in relation to the adequacy of reasons, there are ‘far too many decisions that appear to create a series of rules and sub-rules’ and that ‘silo citation’ (para 3) leads to duplication between authorities in each area of law. He concluded as follows:

There is, in truth, only one thing that really has to be said about the quality of reasons, which is that they must be adequate. Everything else is merely application of that principle to the circumstances of a particular case (para 3).

The UT considered (at para 7) the first three sentences of the FTT’s reasons:

A cardinal issue of this application is whether the patient should be discharged from hospital by a CTO. This issue involves knowledge of the nature of a CTO. A CTO may only be imposed by the patient’s RC …

UTJ Jacobs concluded that the tribunal’s reasons were inadequate as they left open the possibility that it had misdirected itself about its powers in relation to a CTO. The decision was not set aside as the patient was no longer subject to a CTO.

Comment: It is clear that the tribunal did not misdirect itself, so this is a surprising decision.

After-care during s17 leave

R (CXF) v Central Bedfordshire Council

The patient’s (CXF’s) mother drove weekly to accompany her son on escorted community leave bus trips. When he turned 18, Children Act 1989 funding ceased and she sought judicial review of the refusal to fund her travel costs under MHA 1983 s117.

The Court of Appeal agreed with the Administrative Court’s decision (for which, see [2017] EWHC 2311 (Admin)M; February 2018 Legal Action 31), concluding that the patient did not ‘cease to be detained’ or ‘leave hospital’ within the meaning of s117(1) when on leave, and so was not a person to whom s117 applied, and that the services provided did not constitute ‘after-care services’ within the meaning of s117(6). The Court of Appeal added (obiter) that it was difficult to see how s117 could have covered the mother’s costs in any event as there was no evidence that she was authorised to provide services on behalf of any clinical commissioning group or local authority.

The court was critical of and provided guidance in relation to the quality of pleadings in statutory interpretation cases. In relation to this case, it stated that the MHA 1983 Code of Practice is analogous to delegated legislation (which can only be used as an aid to interpretation if it formed part of parliament’s background knowledge when legislating) and so, dating from 2015, cannot be used to construe s117(1), which is part of the original text. The court, having also criticised the intervenor’s submissions (which included irrelevant evidence in breach of the court’s prior order granting permission to intervene), noted that the matters that are admissible are so limited in statutory interpretation cases that it may be that there is nothing useful an intervenor can contribute.

Comment: Although there was no s117 duty to provide after-care in this case, the Court of Appeal stated that in other cases, such as a patient living in the community on either a full-time or a part-time trial basis, the s117 duty could arise. This would clearly include patients on long-term leave under the new HMPPS policy noted above.

Pocket money

R (Mitocariu and Lazarel) v Central and North West London NHS Foundation Trust

In this claim, two hospital order patients (Mr Mitocariu and Mr Lazarel) contended that if, for any reason, they were not in receipt of welfare benefits then the trust should provide regular payments to ensure their dignity was maintained while in care (in the same way as many other trusts provide for restricted transferred prisoners). Originally, the claim was made on the basis that they had no recourse to public funds, but it proceeded on the basis that it was reasonably impracticable for them to obtain benefits (the second claimant had refused to disclose information about ownership of overseas property and it seems that both may have been entitled to benefits).

David Casement QC (sitting as a deputy High Court judge) decided that the trust did have a power to make payments to patients. This did not arise from MHA 1983 s122 as originally pleaded, as the power of the health secretary (now the health and social care secretary) under that section had been repealed by Health and Social Care Act 2012 s41. It instead arose from NHS Act 2006 s43 (which identified the functions of foundation trusts), and either s46 or s47 (which provided sufficiently general powers). In so far as any contract with NHS England purported to restrict the statutory power to make payments, the contract would be ultra vires. Similarly, any payment outside the s43 purposes (namely, the provision of services to individuals for or in connection with the prevention, diagnosis or treatment of illness and the promotion and protection of public health) would be ultra vires. The amount, timing and frequency of payments was a matter for the discretion of the trust, taking into account all relevant factors, including the specific therapeutic requirements of the patient.

On the facts, the trust had lawfully exercised its power: the financial circumstances of the patients were regularly considered and addressed appropriately (eg, paying for a winter coat and travel costs). The absence of a policy did not mean that the trust had acted unlawfully. A standardised approach of making regular payments irrespective of and unrelated to the therapeutic needs of the patient, as sought by the patients, would be outside the powers granted to a foundation trust.

Comment: The Welsh ministers retain the old MHA 1983 s122 ‘pocket money’ power. Most trusts in England have a ‘standardised approach involving making regular payments irrespective of and unrelated to the therapeutic needs of the patient’ (para 34) for restricted transferred prisoners, which would now appear to be unlawful.

The case involved a foundation trust, but it seems likely that the same conclusion would be reached for non-foundation NHS trusts. NHS Act 2006 s25(1) states that NHS trusts are ‘to provide goods and services for the purposes of the health service’ and Sch 4 para 14(1) states that an NHS trust ‘may do anything which appears to it to be necessary or expedient for the purposes of or in connection with its functions’, both of which are in similar terms to s43 and s47(1) respectively for foundation trusts.


R v Edwards

The Court of Appeal set out the following principles in relation to sentencing (at para 34) because previous guidance in R v Vowles [2015] EWCA Crim 45M (in relation to the order in which a judge should consider MHA 1983 ss37 and 45A, and the precedence allegedly given in that case to s45A) had been misunderstood:

i. The first step is to consider whether a hospital order may be appropriate.

ii. If so, the judge should then consider all his sentencing options including a s45A order.

iii. In deciding on the most suitable disposal the judge should remind him or herself of the importance of the penal element in a sentence.

iv. To decide whether a penal element to the sentence is necessary the judge should assess (as best he or she 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.

v. 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.

vi. If the judge decides to impose a hospital order under s37/41, he or she must explain why a penal element is not appropriate.

vii. The regimes on release of an offender on licence from a s45A order and for an offender subject to s37/41 orders are different but the latter do not necessarily offer a greater protection to the public, as may have been assumed in [R v Ahmed [2016] EWCA Crim 670M] and/or or by the parties in the cases before us. Each case turns on its own facts.

The judgment includes a detailed comparison of release regimes under s37/41 and s45A, and a discussion of the principles relating to the rules governing applications to the Court of Appeal to advance new grounds or fresh evidence.


  1. A new version of the guidance was published on 27 May 2016.

About the author

Jonathan Wilson is a consultant solicitor at Campbell Law Solicitors and runs Mental Health Law Online (


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Type: Journal article🔍

Title: Mental health: update

Author: Wilson, Jonathan🔍

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Date: 1/2/19🔍

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