It’s a couple of years since I first wrote an explanatory post about what some people call ‘hybrid orders’ under s45A of the Mental Health Act. These are still comparatively rare, combining a period in hospital under the Mental Health Act with the possibility of being transferred to prison if inpatient care is no longer required. The fuller post goes into various details that I won’t repeat here as well as giving some real examples of where such orders have been used.
This post covers an Appeal Case from last year – the case of R v POOLE (2014). In it, we saw a very technical legal argument about when such orders can be imposed, but it’s an argument I thought I’d summarise for those amongst you who like this sort of thing! —
Matthew POOLE is a man with a long history of criminal offending totalling 90 convictions. He had also previously been a s3 inpatient. At the point of committing further offences leading up to this Appeal Court hearing in 2014, he was a s37 (hospital order) patient after being found unfit to plead after being charged with burglary. It is worth me emphasising, in order to explain this case, that he was not a s37/41 (restricted hospital order) patient. As a result of the hospital order for burglary, he was detained in a medium secure unit in Bury, Greater Manchester where he stole bank cards and money from three other patients, amount to over £7,000 in total. He was charged alongside a care worker from the hospital who was also convicted and sentenced to almost two years in prison for his part, whilst Mr POOLE was given the same 22 month prison sentence and a ‘hospital direction’ under s45A of the Mental Health Act.
HOSPITAL ORDER v HYBRID ORDER
The argument being put forward on Mr POOLE’s behalf concerns the technicalities of s45A. If you’re so interested that you’ve read this far(!) it may be worth you opening the text of s45A Mental Health Act in another tab or browser, if you can. If not, might want to click into it and back again as you continue. I re-read the damn thing about five times trying to digest what this Appeal was about! You need to keep in mind what a ‘hospital direction’ is under this section; as well as what a ‘limitation direction’ is.
- A hospital direction – this is the legal order which means that the defendant in question will spend time in hospital before any consideration of the prison sentence that has been imposed.
- A limitation direction – this is the legal order which means that whilst the defendant is in hospital prior to any period of imprisonment, they shall be subject to the restrictions outlined in s41 of the Act, making them a restricted patient.
So this is the legal question for the Appeal – when the judge is imposing a s45A order, must they impose the limitation direction in addition to the hospital direction? Mr POOLE’s lawyers argued that they were under a duty to do so and had failed in that responsibility. They went further, arguing that consideration of s45A as a whole requiring the original court to impose the limitation direction, they trial judge could not legally impose the s45A hospital direction either. No-one had argued at any stage argued that the defendant posed “a serious risk of harm” to the public – his offending had been largely acquisitive in nature, not violent and so the grounds for imposing a limitation direction to ensure s41 restrictions were not met. The Appeal Court ruled that the original trial judge was correct and the appeal was denied. It is legal to impose a s45A hospital direction without a limitation direction to make the defendant a restricted patient. In that respect there are two kinds of ‘hybrid’ order: the restricted and the unrestricted versions and in that respect, this ruling confirms that these orders are like s37 hospital orders as well as those transfer directions under s47 and s48 for those sentenced to imprisonment who need to be transferred to hospital whilst serving their sentence.
All clear?! Excellent!
Incidentally, do you remember the “Sorry? … What?!” post from a week or two ago. I was trying to draw attention to the fairly horrific idea of a “Part III Place of Safety” where a court can direct that a police station be used for up to 14 days pending the identification of a bed in hospital. This can follow from a judge sentencing a defendant to a (s37) hospital order; a (s38) interim hospital order; or a (s37/41) restricted hospital order. In researching this post, I re-read section 45A for the first time in a while and realised, to my further horror, that where a Part III place of safety is required pending the admission to hospital of someone who has been made subject to a s45A order, they may be detained in a police station (as well as a prison or other location) for up to 28 days. Again – it’s a fairly medieval idea that has survived into our twenty-first century law.
But can you just imagine the custody sergeant’s face?! … “What?! … 28 days?!!”
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