In criminal practice, it is not uncommon to represent clients with complex and severe mental health issues. The test in R v Pritchard (1836) 7 C&P 303 which sets out the test for a Defendant’s fitness to plead does not always capture the vast array of clients with psychiatric diagnoses, meaning that it is possible to encounter those who are deemed fit but whose mental health conditions present as substantial mitigation and for whom, a psychiatric disposal at sentence may be most appropriate.

The Mental Health Act (MHA) 1983 makes provision for a number of orders which the court can impose at sentence for those suffering psychiatric illness.

Section 37 (1) MHA states:

Where a person is convicted before the Crown Court of an offence punishable other than an offence the sentence for which is fixed by law… the court may by order authorise his admission to and detention in such hospitals as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.

Section 37 (2) MHA sets out the procedure for imposing a hospital order:

The conditions referred to in subsection (1) above are that-

The court is satisfied on the written or oral evidence of two medical practitioners that the offender is suffering from a mental disorder and that either –

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…

The court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.

Such an order can only be made on the recommendation of two psychiatrists (at least one of which must be approved under section 12 of the Act) it is usual for a recommendation to consider both s.37 and the potential for a restriction order pursuant to section 41 MHA.

Section 41(1) MHA states:

Where a hospital order is made in respect of an offender by the Crown Court, and 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 so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section . . . ; and an order under this section shall be known as “a restriction order”.

There is a procedural distinction whereby, an order under s.41 cannot be made without the oral evidence of at least one of the registered medical practitioners before the court.

A hospital order is an alternative to a custodial sentence and, a restriction order under s.41 can be imposed in addition if the Defendant is deemed a risk to the public. This means that there are restrictions on both the Defendant and on their Responsible Clinician, one of which being the need to acquire the permission of the Secretary of State before a person detained under s.37/41 can be discharged.

Section 37 (4) MHA states that the written or oral evidence of the Approved Clinician or some other person representing the managers of the hospital that arrangements have been made for the Defendant’s admission into hospital and for his admission within 28 days from the making of such an order. As such, it is important, when commissioning the psychiatric reports that the author can either comment on the availability of a bed or is in a position to liaise with the hospital management to confirm this prior to the sentencing hearing.

An alternative provision is found at s.45A MHA. This is known as a hybrid order. On first glance, the terms appear identical to that of the s.37 order however, the hybrid provides that, should the offender’s health improve and their Responsible Clinician indicate that continued treatment is no longer required, the Secretary of State can direct their return to prison to serve the remaining part of their sentence. The purpose of the hybrid order is to ensure that offenders in need of treatment for their mental health are not prohibited from accessing it but, do not end up serving a significantly shorter sentence inside a mental health facility than they otherwise would have in custody.

The Sentencing Offenders with Mental Disorders, Developmental Disorders and Neurological Impairments guideline came into force on 1st October 2020 and sets out a useful framework for the considerations a court must undertake when sentencing Defendants with these conditions. In particular, section 2 of the guideline sets out the questions to be addressed when assessing the impact of the Defendant’s diagnoses on their culpability:

At the time of the offence, did the offender’s impairment or disorder impair their ability:

To exercise appropriate judgement

To make rational choices

To understand the nature and consequences of their actions

At the time of the offence, did the offender’s impairment or disorder cause them to behave in a disinhibited way?

Are there any other factors related to the offender’s impairment or disorder which reduce culpability?

The recent authority of R v Reynolds [2021] EWCA Crim 10 sets out the approach to be undertaken by the courts in deciding which if any of the mental health disposals are appropriate in a given case by summarising the authorities in this area.

The case of R v Vowles [2015] EWCA Crim 45 states that a court should not feel circumscribed by the opinion of the psychiatric experts and must consider:

(1) the extent to which the offender needs treatment for the mental disorder from which the offender suffers,

(2) the extent to which the offending is attributable to the mental disorder,

(3) the extent to which punishment is required and

(4) the protection of the public including the regime for deciding release and the regime after release.

There must always be sound reasons for departing from the usual course of imposing a penal sentence and the judge must set these out.

The approach in Vowles was clarified in R v Edwards [2018] EWCA Crim 595 at [12] Hallett LJ acknowledged a misunderstanding arising from Vowles as to how a judge should approach the making of a s.37 or s.45A order and the precedence allegedly afforded to s.45A stating that this does not provide a ‘default’ setting of imprisonment. The sentencing judge should consider if a hospital order may be appropriate under s.37 (2)(a), if so, before making such an order, the court must consider all the powers at its disposal including s.45A. Consideration of s.45A must come before making a hospital order because it includes a penal element and the court must have ‘sound reasons’ to depart from the usual course of imposing a sentence with a penal element.

Edwards also makes reference to the important consideration of the release regime attributed to each type of order stating: ‘However, the graver the offence and the greater the risk to the public on release of the offender, the greater the emphasis the judge must place upon the protection of the public and the release regime.’

The case of R v Nelson [2020] EWCA Crim 1615 considered the advantages and disadvantages of a hybrid order under s.45A versus a hospital order under s.37/41. Nelson concerned a violent offender who it was considered would suffer with a mental disorder his entire life but had responded well to treatment and supervision in hospital. In this case, the court concluded that the order that would best protect the public was a hospital and restriction order. While this order was not concerned with punishment, an important consideration was the release regime. With a s.37/41 order, the Secretary of State has a role in the release and recall of offenders sentenced to hospital orders. This should not be imposed as a marker of the seriousness of the offence but to protect the public from serious harm. This consideration justified a departure from the punitive element of a sentence to prioritise public protection. Had the court imposed a s.45A hybrid order, if the Defendant’s health had improved such that he no longer required hospital treatment, the Responsible Clinician or Tribunal notifies the Secretary of State who will generally remit the offender to prison under s.50(1) MHA to serve the rest of their sentence. In the case of a determinate sentence, the release from that sentence would be in accordance with the usual provision of the automatic release date. Under s.37/41, there is the provision of specialist aftercare following release.

Mental Health considerations are increasingly common when dealing with criminal sentencing. In the more severe psychiatric cases, it is important that practitioners have a working knowledge of the orders available to the Crown Court and the way in which judges will approach the imposition of different types of order, including the interplay between the authorities and sentencing guidelines.

This article  on the ‘Sentencing Disposals under the Mental Health Act 1983’ was written by Siân Beaven. To enquire about instructing Siân or any other member of our Criminal Team, please contact our clerking team via our switchboard on 01962 868 161 or email: clerks@pumpcourtchambers.com