Section 37/41: hospital order with restrictions: Difference between revisions

Revision as of 09:24, 16 June 2021

This is a hospital order under s37 with restrictions under s41.

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

Criteria

The restrictions under section 41 may be given only by the Crown Court, and if (s41(1)):

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

It is the harm which must be serious (rather than just the risk of committing further offences) (R v Birch (1990) 90 Cr App R 78).

The sentencing judge may impose restrictions even if this is contrary to the medical recommendations (see, for instance, R v Parkins [2012] EWCA Crim 856^M, [2012] MHLO 50).

Effects of restrictions

The main effects of the restrictions, which are set out in s41(3), are as follows:

The section need not be renewed at the usual periods: it continues indefinitely until discharged (s41(3)(a)).
A Community Treatment Order is not available (s41(3)(aa)).
The usual Tribunal eligibility rights (in s66 and s69) do not apply (s41(3)(b)).
The Justice Minister’s consent is required for (i) s17 leave of absence, (ii) s19 transfer, or (iii) s23 discharge (s41(3)(c). This means that the hospital managers effectively have no power of discharge so there is rarely any point in applying for a hearing.
If the patient goes AWOL the ability to return him is indefinite (s41(3)(d)).

Since the MHA 2007 amendments on 3/11/08, ‘time limited’ restriction orders cannot be made. In other words, restrictions must be for indefinite duration. There are no time-limited restriction orders still in existence (email from Head of MHCS, 16 March 2016).

Discharge

Routes to discharge	Mental Health Tribunal Ministry of Justice (invariably only at RC’s request) Hospital managers’ hearing (with MoJ permission: theoretical only) Responsible Clinician (with MoJ permission: theoretical as MoJ uses its own power) No nearest relative Court of Appeal
Tribunal eligibility	Following hospital order made by court: no application during first six-month period; once during subsequent six-month period; once during each annual period thereafter. Following recall: as above. (Following a conditional discharge: no application during the first 12-month period; once during subsequent 12-month period; once during each 24-month period thereafter.)
Types of discharge	Absolute discharge Conditional discharge Deferred conditional discharge
References	Discretionary reference by Secretary of State for Justice Three-year reference by Secretary of State for Justice (even if under 18)

The relevant Tribunals Service target was for the hearing to be held within 17 weeks of receipt of application.

Conditional discharge

The routes to a conditional discharge (or deferred conditional discharge) are discussed below, together with a description of the regime under which the patient will find himself.

Conditional discharge by Tribunal

A conditional discharge must be granted where:

The Tribunal is not satisfied that the ‘s3’ criteria for detention are met (s72(1)(b), applied by s73(1)(a)).
The Tribunal is not satisfied that ‘it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment’ (s73(1)(b))

As usual, the burden of proof is on the responsible authority to prove the former; however, the burden of proof in relation to the latter rests with the patient.

If liability to be recalled is considered to be not appropriate, an absolute discharge must be granted instead.

There is no general discretion in relation to discharge in restricted cases.

It is lawful to grant a conditional (as opposed to absolute) discharge for patients with no mental disorder at all (Johnson v UK 22520/93 [1997] ECHR 88^M, R (SSHD) v MHRT, re BR [2005] EWCA Civ 1616^M). The patient would then be able to apply for an absolute discharge at a later stage.

Deferred conditional discharge by Tribunal

The Tribunal ‘may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to its satisfaction’ (s73(7)).

It cannot defer to see if the patient’s mental health improves, or to allow for testing of his mental state in the community (as that testing amounts to further treatment). The patient needs to be ready for conditional discharge on the day of the hearing (subject to any necessary arrangements being made).

It cannot defer to a specific future date, in contrast to a delayed discharge in unrestricted cases. It can only grant a deferred conditional discharge when (a) it has found, on the balance of probabilities, that the patient should not be detained but should be subject to recall, and (b) it has drafted the conditions for the discharge (DC v Nottinghamshire Healthcare NHS Trust [2012] UKUT 92 (AAC)^M, [2012] MHLO 53).

Often deferrals are made in order for suitable accommodation, or supervision, to be arranged.

Following the decision there is a duty on the relevant bodies to make ‘reasonable endeavours’ to ensure the arrangements can be met (R (K) v Camden and Islington Health Authority [2001] EWCA Civ 240^M).

A deferred conditional discharge decision is provisional, rather than final, so the Tribunal can reconvene after a period to consider the case afresh if it has been impossible to give effect to the conditional discharge (R (IH) v SSHD [2003] UKHL 59^M). When granting the deferred conditional discharge the Tribunal should set a date to reconvene if necessary. The Tribunal will grant the conditional discharge on the papers if the RC writes to state that the necessary arrangements have been made.

TO BE CONTINUED

INFORMATION

What links here:

@@ Line 1: / Line 1: @@
 {{Information-header}}
-...
+This is a hospital order under [[s37]] with restrictions under [[s41]].
+The patient is subject to the Part 4 ‘Consent to Treatment’ provisions.
+==Criteria==
+The restrictions under section 41 may be given only by the Crown Court, and if (s41(1)):
+<blockquote>
+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
+</blockquote>
+It is the harm which must be serious (rather than just the risk of committing further offences) (R v Birch (1990) 90 Cr App R 78).
+The sentencing judge may impose restrictions even if this is contrary to the medical recommendations (see, for instance, R v Parkins [2012] EWCA Crim 856, [2012] MHLO 50).
+==Effects of restrictions==
+The main effects of the restrictions, which are set out in s41(3), are as follows:
+* The section need not be renewed at the usual periods: it continues indefinitely until discharged (s41(3)(a)).
+* A Community Treatment Order is not available (s41(3)(aa)).
+* The usual Tribunal eligibility rights (in s66 and s69) do not apply (s41(3)(b)).
+* The Justice Minister’s consent is required for (i) s17 leave of absence, (ii) s19 transfer, or (iii) s23 discharge (s41(3)(c). This means that the hospital managers effectively have no power of discharge so there is rarely any point in applying for a hearing.
+* If the patient goes AWOL the ability to return him is indefinite (s41(3)(d)).
+Since the MHA 2007 amendments on 3/11/08, ‘time limited’ restriction orders cannot be made. In other words, restrictions must be for indefinite duration. There are no time-limited restriction orders still in existence (email from Head of MHCS, 16 March 2016).
+==Discharge==
+{| class="wikitable"
+! Routes to discharge
+|
+* Mental Health Tribunal
+* Ministry of Justice (invariably only at RC’s request)
+* Hospital managers’ hearing (with MoJ permission: theoretical only)
+* Responsible Clinician (with MoJ permission: theoretical as MoJ uses its own power)
+* No nearest relative
+* Court of Appeal
+|-
+! Tribunal eligibility
+|
+* Following hospital order made by court: no application during first six-month period; once during subsequent six-month period; once during each annual period thereafter.
+* Following recall: as above.
+* (Following a conditional discharge: no application during the first 12-month period; once during subsequent 12-month period; once during each 24-month period thereafter.)
+|-
+! Types of discharge
+|
+* Absolute discharge
+* Conditional discharge
+* Deferred conditional discharge
+|-
+! References
+|
+* Discretionary reference by Secretary of State for Justice
+* Three-year reference by Secretary of State for Justice (even if under 18)
+|}
+The relevant Tribunals Service target was for the hearing to be held within 17 weeks of receipt of application.
+==Conditional discharge==
+The routes to a conditional discharge (or deferred conditional discharge) are discussed below, together with a description of the regime under which the patient will find himself.
+===Conditional discharge by Tribunal===
+A conditional discharge must be granted where:
+* The Tribunal is not satisfied that the ‘s3’ criteria for detention are met (s72(1)(b), applied by s73(1)(a)).
+* The Tribunal is not satisfied that ‘it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment’ (s73(1)(b))
+As usual, the burden of proof is on the responsible authority to prove the former; however, the burden of proof in relation to the latter rests with the patient.
+If liability to be recalled is considered to be not appropriate, an absolute discharge must be granted instead.
+There is no general discretion in relation to discharge in restricted cases.
+It is lawful to grant a conditional (as opposed to absolute) discharge for patients with no mental disorder at all (Johnson v UK 22520/93 [1997] ECHR 88, R (SSHD) v MHRT, re BR [2005] EWCA Civ 1616). The patient would then be able to apply for an absolute discharge at a later stage.
+===Deferred conditional discharge by Tribunal===
+The Tribunal ‘may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to its satisfaction’ (s73(7)).
+It cannot defer to see if the patient’s mental health improves, or to allow for testing of his mental state in the community (as that testing amounts to further treatment). The patient needs to be ready for conditional discharge on the day of the hearing (subject to any necessary arrangements being made).
+It cannot defer to a specific future date, in contrast to a delayed discharge in unrestricted cases. It can only grant a deferred conditional discharge when (a) it has found, on the balance of probabilities, that the patient should not be detained but should be subject to recall, and (b) it has drafted the conditions for the discharge (DC v Nottinghamshire Healthcare NHS Trust [2012] UKUT 92 (AAC), [2012] MHLO 53).
+Often deferrals are made in order for suitable accommodation, or supervision, to be arranged.
+Following the decision there is a duty on the relevant bodies to make ‘reasonable endeavours’ to ensure the arrangements can be met (R (K) v Camden and Islington Health Authority [2001] EWCA Civ 240).
+A deferred conditional discharge decision is provisional, rather than final, so the Tribunal can reconvene after a period to consider the case afresh if it has been impossible to give effect to the conditional discharge (R (IH) v SSHD [2003] UKHL 59). When granting the deferred conditional discharge the Tribunal should set a date to reconvene if necessary. The Tribunal will grant the conditional discharge on the papers if the RC writes to state that the necessary arrangements have been made.
+'''TO BE CONTINUED'''
 {{Information-footer
 |maincat=Criminal detaining sections
 }}