Diminished Responsibility and Disposals under the Mental Health Act 1983

Introduction

Nigel Edwards QC leading George Hazel-Owram, instructed by Eric Watson of Watson Woodhouse Solicitors, recently defended a man charged with the horrific murder of his mother. 

The Defendant suffered from paranoid schizophrenia and, before and at the time of the murder, believed he was dead and had returned to earth to live. 

Despite medication being prescribed he had failed to adhere to the regiment of daily tablet taking and he went on to stab his mother multiple times, including through and excising the eye ball, causing her death. His reason for killing her was said to be so she could come back to be with him and live forever.

After consideration of three psychiatric reports the Prosecution, unsurprisingly accepted a plea to be manslaughter by reason of diminished responsibility. 

A difficult sentencing exercise?

The key issue for the sentencing court was whether the defendant should have been made the subject of an order pursuant to sections 37 and 41 of the Mental Health Act 1983 or whether he should have received an indeterminate sentence, in this case a sentence of life imprisonment, combined with a hospital and limitation direction order made under section 45A of the Mental Health Act 1983.

Was the failure to self-medicate deliberate or part of his condition? 

What was the Defendants overall culpability? and 

What in the public interest was the best disposal available?

This article addresses the differences between the two and considers the approach the sentencing court may adopt, or can be persuaded so to take.

The Options

The issues here must always be considered on a case by case basis and are always specific and peculiar to the individual offender, the circumstances as they pertain at the time of sentence and those likely to be extant going forward.

Hospital and Restriction Orders

Section 37 of the Mental Health Act 1983 deals with the powers of the court to make a hospital order when certain conditions are satisfied.

Section 41 of the Mental Health Act 1983 deals with the powers of the court to make a restriction order again provided certain conditions are satisfied. 

When a hospital order is made in accordance with section 37, the court cannot also impose a sentence of imprisonment, or impose a fine, or impose a community order. A hospital order lapses after six months but can be renewed for a further six months and then at yearly intervals. The renewals are made in instances where the responsible medical officer considers further detention necessary for the protection of the public or in the interests of the patient’s own health and safety.

Only the Crown Court can make a restriction order and such an order can only be imposed together with a hospital order made under section 37. A restriction order would almost certainly be imposed for an unlimited period. A restriction order does not lapse and require renewal like a hospital order. 

When a hospital order and a restriction order are imposed, in accordance with sections 37 and 41, the responsible medical officer and the hospital manager are unable to discharge the offender without the consent of the Secretary of State or the First Tier Tribunal. 

Hospital and Limitation Direction Orders 

Hospital and limitation direction orders, commonly known as a hybrid order, can be made in accordance with section 45A and 45B of the Mental Health Act 1983.

Such an order is imposed in cases where the sentencing court hears evidence that the offender is suffering from a mental disorder and thus a hospital order is deemed appropriate but in addition, in the event that the offender completes a period of treatment in hospital and is no longer deemed to be suffering from a mental disorder, the offender is transferred to prison to serve the remainder of the sentence. A hospital and limitation direction order would thus be imposed alongside a sentence of imprisonment. 

Such a sentence appears most often to be imposed where the sentencing court concludes that the offender has a greater degree of responsibility or culpability for the offence. A commonly cited example, of an instance where the offender has a greater degree of responsibility for the offence, is the situation where an offender is suffering from a mental disorder but has voluntarily stopped taking his required medication leading to a relapse and the commission of the offence.

The release regime, for those offenders who are made the subject of a section 45A order, differs depending on the penal element of the sentence, namely whether the offender is serving a determinate or indeterminate sentence of imprisonment. 

Where the offender is serving a determinate sentence of imprisonment and the offender is made the subject of a section 45A order, in situations where the offender’s mental health improves to the point where the offender is deemed no longer to require treatment in hospital, the Secretary of State will remit the offender to prison to serve the remainder of his sentence provided that the automatic release date has not passed. 

The section 45A order would not have effect as soon as the offender was returned to prison. The offender would then be released from prison at the time he was due for automatic release.

Determinate sentences

Where the offender is serving a determinate sentence of imprisonment and the offender is made the subject of a section 45A order, in situations where the offender is still suffering from a mental disorder at the point he would be due for automatic release, then the offender will remain in hospital and he will be treated as though he was the subject of an unrestricted hospital order. His discharge from hospital would then be a matter for those treating him and not the Secretary of State. 

Indeterminate sentences

Where the offender is serving an indeterminate sentence of imprisonment and the offender is made the subject of a section 45A order, in situations where the offender’s mental health improves and the offender is no longer deemed to require treatment in hospital and the offender has not served the minimum term of his sentence, then the Secretary of State will remit the offender to prison. The section 45A order would no longer have effect when the offender is transferred to prison. 

The offender would then have to serve the remainder of the minimum term and be considered for release by the Parole Board. 

Where the offender is serving an indeterminate sentence of imprisonment and the offender is made the subject of a section 45A order, in situations where the offender is still suffering from a mental disorder at the point he would have served his minimum term, then he will remain in hospital. 

When he is deemed to be fit for release then he may be conditionally discharged by a Tribunal and the Secretary of State, although it is more likely that the offender would be referred to the Parole Board for consideration of his release. Supervision post release in such cases will always be subject to review and monitoring.

The Manslaughter Definitive Guideline

The Sentencing Council have issued the Manslaughter Definitive Guideline. 

Page 21 of the Guideline sets out the section which deals with manslaughter by virtue of diminished responsibility. 

The Guideline outlines the following eleven step approach to determining sentence: 

(i)             Assessing the degree of responsibility retained by the offender. 

(ii)           Determine the appropriate starting point and category range. 

(iii)         Consider the issue of dangerousness.

(iv)          Consider mental health disposals. 

(v)           Consider any other factors which would warrant an adjustment to sentence. 

(vi)          Consider assistance to the prosecution. 

(vii)        Credit for plea.

(viii)      Totality.

(ix)          Compensation and ancillary orders. 

(x)           The duty to give reasons and explain the sentence. 

(xi)          Consideration for time spent on bail. 

R v Edwards [2018] 4 WLR 64 CA

In Edwards the Court of Appeal specifically considered the approach to sentencing offenders who were suffering from mental disorders. 

Three of the appellants in that case were appealing against life sentences imposed in conjunction with a section 45A order. Those appellants submitted that a hospital order combined with a restriction order, in accordance with sections 37 and 41, was the appropriate sentence. 

The defence submitted that the post release regime under a hospital order, involving supervision by medical experts, rather than the post release regime following release from prison under the probation service, was the appropriate disposal in the case of Edwards. 

The Court of Appeal heard evidence given de bene esse from the doctor treating the appellant. 

 The following is an extract from the judgment in Edwards: 

'In addition to providing the update Dr Dodge was asked to comment on the difference between post-release supervision regimes under section 45A and sections 37/41. He said there was little experience of the way in which the Probation Service would supervise licence conditions under section 45A. 

Whilst it might be possible to impose conditions relating to attending medical appointments and co-operating with medical care after a section 45A release, in his view, there would be a difference in the level of supervision available under a section 37/41 release; there would be more frequent conduct and such supervision would be by medical professionals rather than a probation officer.’ 

In the case of the appellant Edwards, the Court came to the conclusion that a penal element to the sentence had been required in that case and thus a life sentence with a section 45A order and a limitation direction could not be criticised. In this respect the appeal was not successful. However, the Court did reduce the length of the minimum term and to that extent the appeal was allowed. 

The Court of Appeal gave guidance at paragraph 34 on the general principles to be adopted in cases of this nature: 

(i)             The first step is to consider whether a hospital order may be appropriate. 

(ii)           If so, the judge should then consider all his sentencing options including a section 45A order. 

(iii)         In deciding the most suitable disposal the judge should remind him or herself of the importance of the penal element in a sentence. 

(iv)          To decide whether a penal element to the sentence is necessary the judge should assess (as best he or she can) the offender’s culpability and the harm caused by the offence. The fact that an offender would not have committed the offence but for their mental illness does not necessarily relieve them of all responsibility for their actions. 

(v)           A failure to take prescribed medication is not necessarily a culpable omission; it may be attributable in whole or in part to the offender’s mental illness. 

(vi)          If the judge decides to impose a hospital order under sections 37/41 he or she must explain why a penal element is not appropriate. 

(vii)        The regimes on release of an offender on licence from a section 45A order and for an offender subject to section 37/41 orders are different but the latter do not necessarily offer a greater protection to the public, as may have been assumed in R v Ahmed. Each case turns on its own facts. 

(viii)      If an offender wishes to call fresh psychiatric evidence in his appeal against sentence to support a challenge to a hospital order, a finding of dangerousness, or a section 45A order he or she should lodge a section 23 application. If the evidence is the same as was called before the sentencing judge the court is unlikely to receive it. 

Commentary

In the present case the issue for the sentencing judge was the same as in Edwards. The court had to determine whether a hospital order combined with a restriction order under sections 37 and 41 was the appropriate disposal as opposed to whether a sentence of life imprisonment combined with a section 45A order should be imposed. 

The Prosecution submitted that the defendant had a higher degree of responsibility due to the fact he had voluntarily discontinued taking his medication which resulted in him suffering from a relapse.

The three consultant psychiatrists differed from the Crown and all recommended a disposal under sections 37 and 41. 

Expert evidence is essential

It cannot be stressed sufficiently the importance of calling evidence from the expert psychiatrists to deal with all of the issues as they may pertain to any given defendant on an individual basis as set out above. This is important as the Court of Appeal will be unwilling to hear evidence on appeal that could and should have been called at the original sentencing hearing. 

In our case the psychiatric evidence was crucial to determining sentence for two reasons. 

Firstly, the expert gave evidence on whether the defendant’s decision to discontinue his medication would have been conscious or not conscious. This was an important issue which would determine the culpability/responsibility of the defendant. The defendant had a long history of suffering from paranoid schizophrenia. The expert explained that the answer to this question was not clear cut. One of the main problems in managing schizophrenic patients in the long term is keeping them on their anti-psychotic medication. It is very common for them to discontinue medication due to them having a lack of insight into their mental illness. That discontinuance can then result in a relapse. The expert explained that on the one hand you could say the discontinuance of the medication was a characteristic of the mental disorder and that poor compliance with medication was linked with the mental illness but, on the other hand, the patient does have a degree of control. However, the expert explained that his preferred opinion for the discontinuance of the medication was to see it as part of the mental illness. The medication and what he was being told to do was evil.

Secondly, the most significant and important part of the expert’s evidence related to the appropriate disposal and specifically the release regimes under section 37/41 and section 45A. The expert explained that in a section 37/41 case if the defendant was released by the Home Office or a mental health review tribunal then he would be conditionally discharged. The terms of the conditional discharge would vary but would have two mandatory conditions which include the fact that the defendant would have to be followed up by a responsible clinician and social worker and that he would be liable to be recalled to hospital if his mental health deteriorates. Many other conditions can be imposed and in this case a routine condition would be that the defendant continues his medication. Conditions of residence can also be imposed. The expert explained that there was a high level of supervision under the watch of mental health professionals. If the defendant was released after a prison sentence following a section 45A order, the supervision would be by the Probation Service and the defendant would be liable to be recalled to prison. 

The expert categorically stated that in a case dealing with major mental illness the most appropriate way of protecting the public would be an order under sections 37 and 41. The expert formed this view because the post-supervision was by a consultant psychiatrist and a social worker. The expert described this as double supervision. The expert explained that these would probably be the people who had dealt with the defendant in hospital and so would be much more tuned into the risk of discontinuance of medication and be aware of signs of relapse. 

The expert evidence also referred to the benefits of a section 37/41 order to the defendant’s own mental and physical health. One of the experts expressed concerns about the impact prison would have on the defendant’s health and this was viewed as another reason for a section 37/41 order been the appropriate disposal. This is an easy factor to forget and is an important part of the decision-making progress. 

Following consideration of the three expert reports, and particularly after hearing live evidence from one consultant psychiatrist, the Learned Judge viewed the appropriate disposal as a hospital order under section 37 combined with a restriction order under section 41. 

The Learned Judge remarked that the defendant’s level of culpability in this case was low and that the decision not to take the medication was more linked to the defendant’s mental illness than a conscious decision.

Comment

A significant feature to be considered in many cases of this type is what is likely to happen to a defendant once he or she had served their sentence. 

The reality for many in most parts of the country is that the provision of mental health services upon release from any sentence is limited or even none existent. NHS Trusts and the Probation Services have limited resources and provide only those services they have to, or alternatively are able to fund and choose to.

Release from a determinate sentence where a S45A order has been imposed places no requirements for either mental health services or the Probation to put in place any provision for post release follow up. The reality is, as far as we are aware or have been advised, this is rarely provided. In any event there is no duty or power to do so or for the court to order the same. In relation to indeterminate sentences this will of course be a matter for the Home Office and the conditions imposed upon the order for release. 

The benefit of S37 and S41 orders is that upon release, if that ever comes, the offender will monitored, as best can be provided, and may be subject to their being returned to the hospital environment subject to the breach of discharge conditions as set out above.

In seeking to persuade the court what may be the most appropriate sentence or disposal going forward one must be careful to weigh up the advice and opinion provided by the experts and at the same time closely consider what is in the best interests not only the lay client, but in our respectful view the best interests of public safety. 

Nigel Edwards QC, George Hazel-Owram and Eric Watson