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Section 45A: hospital direction

This is an order which the Crown Court can make at the same time as imposing a prison sentence.

Introduction

This ‘hybrid order’ is available on conviction alongside a sentence of imprisonment (except where the sentence is fixed by law, i.e. murder) for an offender who suffers from mental disorder: s45A(1),(2). A ‘limitation direction’ must also be given: s45A(3). It is available only to those aged 21 and over (AG’s ref (no 54 of 2011) [2011] EWCA Crim 2276M).

A hospital direction has the same effect as a transfer direction under s47; a limitation direction has the same effect as a restriction direction under s49.

The sentenced person goes straight to hospital but is treated as if he had been transferred to hospital from prison under s47/49. So before the end of the sentence he can be transferred ‘back’ to prison to serve the remainder of the sentence. This dual nature of the sentence led to the term ‘hybrid order’.

When it was enacted, s45A was only available for ‘psychopathic disorder’-classified patients. Following the abolition of the classifications of mental disorder, it is now available to all mentally disordered offenders but remains rare. The Court of Appeal had stated in R v Vowles [2015] EWCA Crim 45M that in cases where medical evidence suggests mental disorder, the offending is partly or wholly attributable to that disorder, treatment is available and a hospital order may be appropriate, the court should consider (and, if appropriate, make) a s45A order before considering making a hospital order; more recent Court of Appeal guidance on sentencing can be found in R v Edwards [2018] EWCA Crim 595M:

[T]o assist those representing and sentencing offenders with mental health problems that may justify a hospital order, a finding of dangerousness and/or a s.45A order, we summarise the following principles we have extracted from the statutory framework and the case law.

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 s.45A 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 s.37/41, he or she must explain why a penal element is not appropriate.

vii. The regimes on release of an offender on licence from a s.45A order and for an offender subject to s.37/41 orders are different but the latter do not necessarily offer a greater protection to the public, as may have been assumed in Ahmed and/or or by the parties in the cases before us. Each case turns on its own facts.

At the release date (for determinate sentence prisoners only) the restrictions cease and the patient becomes a ‘notional s37’ patient.

The patient is subject to the Part 4 ‘Consent to Treatment’ provisions.

Discharge

  Before restrictions cease After restrictions cease
Routes to discharge As for s47/49 As for notional s37
Types of discharge
References
Tribunal eligibility As for s37/41. No application during first six-month period; once during subsequent six-month period; once during each annual period thereafter.

No nearest relative

Recommendations

The same considerations apply as to s37/41 patients (see Section 37/41: hospital order with restrictions).

MHA 2007

The following changes made by the Mental Health Act 2007 are relevant:

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