I’ve been waiting quite a while for a relevant case by which to demonstrate this rarely used, little known section of the Mental Health Act 1983 – even some forensic mental health professionals admit that they know of these cases only very infrequently despite that fact that all such patients would required admission within the secure, forensic system.
Section 45A of the Act relates to something often referred to as a “hybrid order” – within the legislation itself it is known as a “hospital direction”. It can be imposed upon “a person convicted before the Crown Court of an offence the sentence for which is not fixed by law”. The order, in short, allows the judge to direct someone’s removal to hospital after conviction for the offence as long as two clinicians are satisfied “that he is suffering from mental disorder; 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 that appropriate medical treatment is available”; safe in the knowledge that once treatment is no longer necessary, the patient can be taken to prison to serve out the remainder of their sentence in prison and decisions about release be taken by the Parole Board, not the Mental Health Review Tribunal system.
So this order cannot apply to people convicted of murder – for which the sentence is fixed by law as mandatory life sentence – and it cannot apply to someone who had been found not guilty by reason of insanity or to anyone who had been found unfit to plead or stand trial. It may still apply to people who are convicted of manslaughter on the grounds of diminished responsibility.
WHY IS THIS DIFFERENT TO ANYTHING ELSE?
You may be thinking, “How does this differ to a (restricted) hospital order?” and indeed the court is required to consider whether a hospital order would achieve the best outcome before deciding on a hospital direction. The difference with the latter is that the Secretary of State for Justice may direct a person’s removal to prison to serve any remaining part of their sentence if their Responsible Clinician indicates that continued treatment in hospital is no longer necessary. With a hospital order, the patient would be subject to release and community care.
So imagine a person convicted of manslaughter on the grounds of diminished responsibility who is therefore considered culpable and would normally be considered for a life sentence with a recommendation that they serve eighteen years in prison. Were a hospital order under s37 to be given, even where restricted under s41, if the responsible clinician became satisfied after five years that detention in hospital for treatment were no longer needed, there is no mechanism to serve out the remainder of the sentence in prison. Under a s45A hospital direction or “hybrid order”, there is: the offender, once no longer in need of inpatient care, could be removed to prison for the remaining thirteen years of their sentence; with consideration for early release occurring in the normal way at the normal time by the Parole Board, as if the person had been convicted and taken straight to prison.
The hybrid order is designed to ensure that convicted offenders who could normally expect to attract a significant custodial sentence, do not end up serving significantly less time in the secure mental health system, but are also not denied access to necessary treatment for their mental disorder. If the judge in the Crown Court thinks it necessary, he can issue a “limitation direction” which ‘restricts’ the order in just the same way that s41 restricts a hopsital order under s37. And if the hospital bed is not immediately available on the day of sentence, then the judge may direct that the person be held in “a place of safety” until it is. In this context, place of safety does not mean the same thing as for ss135/6 MHA – it is slightly different, defined in section 55.
A final legal point, mainly for police officers who may bump into the scenario: those who abscond prior to their admission to hospital may be retaken under s138 MHA; those who abscond after arrival are treated, by virtue of s45B MHA “as if” they had been detained on a hospital order (with restrictions) and can be re-detained under s17 MHA as AWOL from the Act. There is no time restriction on re-detaining them and a warrant is required under s135(2) if it is necessary to force entry to do so, however such patients are also considered to be unlawfully at large, for the purposes of s49(2) of the Prisons Act 1952.
The case which prompts this post, occurred in Birmingham in December of 2012 – Anthony BROWN was killed after being tortured by two of his housemates, all three suffering from various mental health disorders. Michael HERRINGTON pleaded guilty to manslaughter on the grounds of diminished responsibility at the start of a trial during which Joseph SNAPE, the main offender, pleaded not guilty. He was yesterday sentence to life after conviction for murder and HERRINGTON was sentenced to life with a minimum recommendation of eighteen years in custody. HERRINGTON, however, was then subject to a hospital direction under s45A MHA with a limitation direction. So the judge issues a criminal sentence AND a bybrid order.
This means he will be removed to a secure mental health unit for treatment, but if the need for that treatment should conclude, the Secretary of State can then decide whether he is taken to prison to serve the remainder of his sentence or whether he is released on licence. It allows the future decision to be taken at the time, not predicted from this point when the duration and outcome of treatment is not known.
These orders are rare: in the case of R v JENKIN (2012), the imposition of a hybrid order was challenged, argument being presented that the court should have imposed either a restricted hospital order OR a criminal sentence known as an “IPP” (an indeterminate sentence for public protection). The Court of Appeal ruled that the hybrid order was appropriate for reasons set out in the judgement.
John WARD was pleaded guilty in October 2013 to killing two men in Birmingham City Centre, Big Issue sellers Wayne BUSST and Ian WATSON-GLADWISH. Reading between the lines of media coverage, it would appear likely that he has also been sentenced to a hybrid order, because the judge set a minimum tariff on his sentence and mentioned the Parole Board determining whether or not he’ll ever be released. Had he been sentenced to a restricted hospital order, no minimum sentence would be set and the Tribunal System and / or the Ministry of Justice would determine release.
The judge in this case has stated that WARD may never be released and he remains detained in Ashworth Hospital in Merseyside, one of the four High Secure hospitals along with Broadmoor (Berkshire), Rampton (Nottinghamshire) and Carstairs (Scotland).
The conviction in December 2013 of Karl ADDO shows again where this order is useful. He pleaded guilty to the manslaughter of Sergio MARQUEZ on the grounds of diminished responsibility and has been detained initially at Broadmoor under s45A. However, in passing sentence the judge has remarked that he will be made subject to a minimum term of six and a half years in custody (this figure is reduced because of his guilty plea) and this is the indication that the particular order imposed is a hybrid order under this section. Given that this tarrif is relatively short, it does suggest a likelihood that ADDO will serve his whole sentence in hospital and may be detained there for a great deal longer than the minimum period, just as if he’d been sentenced to a restricted hospital order.
However, should treatment in Broadmoor lead to recovery before that period has concluded, he will be transferred to the prison sytem and subject to the Parole Board in determination of any release decision. Very similar to both of the cases mentioned above.
Reference Guide to the Mental Health Act 1983 – chapter 5.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown OBE, 2019
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk