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Hospital Directions under Section 45A of the Mental Health Act 1983

Document Cited authorities 5 Cited in Related
Vincent
AuthorMichael Butler
Pages127-130

Chapter 13


Hospital Directions under Section 45A of the Mental Health Act 1983

13.1 INTRODUCTION

This chapter considers section 45A of the MHA 1983, which provides a relatively under-used sentencing option for the Crown Court dealing with a mentally disordered offender. It allows for the imposition of a prison sentence in the normal way, together with a direction that the offender should immediately be sent to hospital for treatment. The offender is then treated as if subject to a transfer and restriction direction under section 47 and section 49.

The sentence might be thought an attractive option to sentencing judges in that it allows for a mentally disordered offender to be sent to prison, perhaps to reflect a degree of culpability associated with the offending, but also provides the reassurance that the offender will receive treatment for his mental disorder during the course of his sentence. It is, therefore, perhaps surprising that it is used as infrequently as it is (see Appendix 7).

Until the amendments made by the MHA 2007, the sentence was only available in respect of offenders with a psychopathic disorder. Since then, it has been available for offenders with any form of mental disorder.

13.2 WHICH OFFENDERS?

The order may be imposed whenever an offender is convicted of an imprisonable offence (except murder) in the Crown Court (section 45A(1)). It can only, therefore, be imposed in respect of offenders who are 21 years or over, a sentence of imprisonment being unavailable in respect of anyone any younger (AG’s reference (No 54 of 2011) [2011] EWCA Crim 2276 and R v Fort [2013] EWCA Crim 2332).

128 A Practitioner’s Guide to Mental Health Law

13.3 CRITERIA

According to section 45A(2) of the MHA 1983, the Crown Court may impose the sentence whenever it is satisfied that:

(a) the offender is suffering from mental disorder;
(b) 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

(c) appropriate medical treatment is available for him.

13.4 THE COURT’S DISCRETION

A court may impose the sentence whenever the criteria are met, but it is not required to do so. That would make no sense, as the criteria are exactly the same as those for the imposition of a hospital order under section 37 of the MHA 1983. The point is simply to provide a court with the discretion to choose a third way as an alternative, where appropriate...

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