The Hospital Order with Restrictions
| DOI | 10.1177/002201839405800107 |
| Published date | 01 February 1994 |
| Author | Benjamin Andoh |
| Date | 01 February 1994 |
| Subject Matter | Article |
THE
HOSPITAL
ORDER
WITH
RESTRICTIONS
Benjamin Andoh*
One
of the doctrines of English criminal law has been that no person
should be criminally responsible for any action or omission if, at the
material time, ie at the time of the act/omission, he was suffering from
mental disorder. IThus, such offenders could rely, usually when charged
with murder, on the defence of insanity;' diminished responsibility, etc.
The
successful pleading of insanity used to lead automatically to the
offender being ordered by the court to be admitted to a mental hospital
and detained there until the
Home
Secretary directed otherwise." Before
1991, the status of such a patient was just like that of a patient under a
hospital
order
with restrictions on his discharge, etc (Mental Health Act
1983, s 41) or a prisoner transferred to a mental hospital with similar
restrictions (Mental Health Act 1983, s 47). But, according to the
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, s 3 and
Sched 1,
para
2 such an offence may be treated now as if he had been
admitted under ahospital order under the Mental Health Act 1983, and,
if the court directs it, as if restrictions had been imposed on his discharge
as under s 41 of the Mental Health Act 1983. The court, in its flexibility
as granted by the
1991
Act, may also make a guardianship order, a
supervision and treatment
order
or an
order
for absolute discharge (s 5).
On the
other
hand, once diminished responsibility has been successfully
pleaded, the court may (not must) make a hospital order with or without
restrictions. This is because that defence only reduces the offence of
murder to manslaughter and so the court is at liberty, in theory, to
impose on the offender any sentence ranging from life imprisonment to
an absolute discharge." Arestriction
order
is a hospital order with
• LLM, PhD (London), Barrister (of Gray's Inn), Lecturer in law, Southampton Institute
of Higher Education. I wish to thank the following people for reading an earlier draft of
this article: His Honour Judge G Jones and the late Mr John C Freeman, formerly Senior
Lecturer, in Law, King's College, London (this article is respectfully dedicated to his
memory).
ISee eg Second Report
of
Her Majesty's Commissioners for Revising and Consolidating
the Criminal Law (London, 1846), ch I, art 2.
2Specifically, not guilty by reason of insanity. See the M'Naughton Rules, formulated
after R v M'Naughton (1843) 4 State Trials (New Series) 847. The term, 'insanity', in the
expression, 'not guilty by reason of insanity', really ought to be changed to 'mental
disorder' because the Mental Health Act 1983 refers to 'mental disorder' rather than
'insanity' or 'lunacy', which are now old-fashioned terms.
3Criminal Procedure (Insanity) Act 1964,s 5.
4See Homicide Act 1957, s 2 and also R v Morris (1961) iQB 237 (sentence of life
imprisonment), R v Harvey and Ryan [1971] Crim LR 664 (where H pleaded diminished
responsibility and received a life sentence which was upheld on appeal), R v Courtney
(1988) 9 Cr App R (S) 404, CA (restriction order quashed) and RvBirch (1990) 90
Cr App R (restriction order quashed).
97
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