Hybrid orders & section 45A of the mental health act 1983: recent developments

What is the point of section 45A?

Section 45A of the Mental Health Act 1983 (‘MHA’) was inserted by the Crime (Sentences) Act 1997.  The idea behind it is that where an offender who suffers from a treatable mental disorder is before the Court, a hybrid sentence can be imposed.  The offender is treated, and then in an appropriate case returned to prison to serve the rest of their sentence.     If is they are still in hospital when the sentence expires, they remain in hospital, but unrestricted[1].  It came into force on the 1st  October 1997.

The alternatives are a prison sentence, or a sentence under section 37 and 41 of the MHA, in which the offender receives a hospital order with the restriction that they cannot be released without the permission of the Secretary of State[2].

More detail, please, but not much more.

It applies where a person is convicted before the Crown Court of an offence the sentence for which is not fixed by law, and the court considers making a hospital order before deciding to impose a sentence of imprisonment (s. 45A(1)).   It is limited to offenders aged 21 and over.

The Court must be satisfied of three things on the written or oral evidence of two registered medical practitioners (see s45A(2)).

  • The offender is suffering from a mental disorder.
  • The mental disorder that the offender is suffering from is of a nature or degree which makes it appropriate for the offender to be detained in a hospital for medical treatment.
  • Appropriate treatment is available.

The second part above is important.  The section used to read: ‘that such treatment is likely to alleviate or prevent a deterioration of his condition’[3].  That was known as the ‘treatability test’.  It was removed in 2007 with the new Mental Health Act 2007.

When did it come into force?

  1. That was obviously rather a long time ago. The relevant provisions were being debated in the House of Lords on the date that the press reported that Dolly the sheep had been created[4]. I note from the relevant Radio Times that on that date Ricky (Butcher) was in trouble in East Enders, and it fell to Grant (Mitchell) to help him out.  The more discerning reader will point out that this plot line was not unique to that date.

At about the same time their Lordships tore themselves away from their television sets and debated this provision in committee.   Those debates foresaw some of the problems with sentencing provisions of this kind.

What was the background?

The background was that a committee in 1994[5] had wrestled with the problem of defendants who had a psychopathic personality disorder.  The dilemma, as described by Lord Alderdice  was “it is not easy to know how far one can modify, change, help, mature, or develop, the personality of someone with such a demeanour.”  As a result, those treating would find that they were unable to modify the behaviour of the offender.

As a result, psychiatrists were left with a dilemma.  If they took such psychopathic personality disordered offenders into their care, they were left with patients who were difficult to treat when the money could have been better used elsewhere. To put the matter crudely (and to use the words of Lord Alderdice) the bed would be blocked.   So the suggestion from the Reed Committee was that hospital treatment could be tried, and if it did not work the person would be returned to prison.

There is an obvious problem with prison following treatment , whether for those with psychopathic personality disorders or other types of mental disorder.  Such progress as has been made will be taken to pieces on return.

Further, as Lord Alderdice also pointed out, there were, and are serious problem with definitions of mental disorder.   At the time the Act was passed the MHA 1983 distinguished between those with ‘mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind’[6].  That definition was replaced with one of ‘any disorder or disability of the mind’.

The problem of the definition of mental disorder is covered with typical lucidity by Baroness Hale in Mental Health Law[7].

  • There is a school of thought that all mental disorders are susceptible to organic causes.
  • There is another which rejects the notion of such organic causes and seeks other cures at the level of the offender’s psyche or at its interaction with family or societal pressures.
  • The third concentrates on the behavioural manifestations.

This matters in the context of the correct sentence to be imposed, because many such offenders have multi-faceted problems, making the assessment of ‘culpability’ very difficult. Baroness Hale suggested that the better questions are now ‘what works to make things better’ and the notion of ‘recovery’.

Was Lord Dubs right?

Back to the Lords: Lord Dubs suggested that the relevant power might well not work for two reasons.

  • Clinicians would feel it was inappropriate to return an offender to prison, and as a result they would keep them in hospital longer than was clinically necessary.
  • The second was that arrangements made by a hospital on release are different from those that are made by a prison. The position is also complicated by the fact that the offender might be in a prison further away from his or her home than the hospital was, and so supervision could be provided more easily. We will return to this topic at the end.


R v Vowles  [2015] EWCA Crim 45 was the leading case for some time. Lord Thomas CJ said that in every case in which it appears to the judge that a hospital order (with or without a restriction order) may be an appropriate way of dealing with the case the court should first consider whether the case can appropriately be dealt with by a hospital and limitation direction. If it can, such an order should be made.

There are four questions to be answered following Vowles.

  • The extent to which the offender requires treatment for the mental disorder from which he suffers.
  • The second question is the extent to which the offending is attributable to the mental disorder.
  • The third question is the extent to which punishment is required.
  • The fourth question to be addressed is which regime for deciding release will provide the most protection for the public.

However, in R v Edwards [2018] EWCA Crim 595, Hallett LJ explained that the decision in Vowles did not amount to a ‘default setting’ of imprisonment in these cases. The case must be one where a hospital order, with or without a restriction order, may be appropriate. It would apply in a case where neither a hospital order on its own or a sentence imprisonment on its own were suitable. In deciding the penal element that was necessary the court should assess as best as it could the offender’s culpability and the harm caused.

Culpability in the context of mental disorder is a particularly difficult exercise, since in many such cases the offender has a mixture of problems: sometimes more than one mental disorder, and very often problems with drink and/or drugs.

Statistics about the use of section 45A.

In 2022 the Ministry of Justice provided the statistics below about the use of section 45A[8], compared to restriction orders.

YearRestricted patients admittedAdmitted under section 45AProportion of restricted patients

Dr Ailbhe O’Loughlin at the Sentencing Academy wonders why, post R v Vowles, the numbers of s45A orders did not go up[9].  Since it had been widely (and somewhat erroneously assumed) that the default setting was a section 45A order, it was instructive that the numbers had remained the same.

She has pointed out that prisons pose a serious risk of harm to those who suffer from mental disorder. That is not a particularly controversial observation: at the time of writing the report into HMP Exeter by HM Chief Inspector of Prisons had just been released[10]. It is one of a long list of such reports, in which 77% of inmates said that they had a mental health condition and in which there were 10 self-inflicted deaths since 2018.

She explained that there is evidence that s.45A orders are unpopular amongst psychiatrists, and this may mean that they are reluctant to recommend the order to judges. The Royal College of Psychiatrists recommended abolishing s.45A in 2018 on the grounds that it posed risks to patient safety while failing to enhance the safety of the public[11].  She also pointed out that there are not anything like enough hospital beds as the prison population rises.

Recent authorities

In R v Nelson [2020] EWCA Crim 1615 the Court of Appeal considered which of the statutory regimes (45A or s37/41) afforded most protection for the public, in light of the Sentencing Guidelines for these types of offenders.  Dingemans LJ pointed out (at §37) that there remain some mental disorders which are not treatable, and the order could not apply to those persons.

The Court found that section 45A MHA orders were particularly appropriate in two situations:

  • the first was where, notwithstanding the existence of the mental disorder, a penal element to the sentence was appropriate;
  • and the second was where the offender had a mental disorder but there were real doubts that he would comply with any treatment requirements in hospital, meaning that the hospital would be looking after an offender (who might be dangerous) who was not being treated.

The Court needed to consider the different release regimes (§34).  A restriction order protected the public because:

  • There are monthly reports to the Secretary of State for those detained under s37/41.
  • There are reviews by the Mental Health First Tier Tribunal.
  • The Mental Health FTT can ensure that appropriate conditions are attached to any conditional release, including abstinence.
  • Any release will take place with the Community Mental Health Team which will include a consultant psychiatrist, a senior social worker and, in most cases, a mental health nurse.

There are also problems with returning an offender to prison (§36).

  • One practical example is that of offenders who are treated for delusional disorders in hospital and who are required to take anti-psychotic medicine. This was that many such offenders ceased to take the medication on return to prison. There was no advantage to the offender in taking the medication, and the side effects mean that awareness was supressed which some prisoners considered made them vulnerable.
  • The expert evidence[12] also showed that illegal drugs were more likely to be available in prisons than in hospital, all of which could lead to a deterioration of the mental disorder of such an offender followed by a return to hospital.

The release regime is different from prison under a s45A order.

  • Any release on licence will be supervised by the probation officer. That will not be as regular as from a s37/41 order.
  • The evidence was that the Parole Board did not impose conditions such as a requirement to take anti-psychotic medicine, and that a probation officer would not be able to intervene in the event of a subtle deterioration of mental state. Such an intervention would only take place in the event of the commission of further offences.

In terms of the protection of the public Dr Cumming gave the important evidence that those released under s37/41 MHA orders were likely to reoffend in 4 per cent of cases. By way of comparison Dr Cumming said that 28 per cent of those released under life licences would reoffend.

Since Nelson was decided there have been five decisions in the Court of Appeal dealing with section 45A[13]. Of those only R v Lall [2021] EWCA Crim 404 is of any particular significance, because of the finding about what protected the public most effectively. The case involved an offence of manslaughter in which a schizophrenic had not taken his medication.  The Court found that a s37/41 order was not unduly lenient because all three psychiatrists instructed explained that there would be more protection for the public under such an order. That was because, in the event of the Appellant ever being released, mental health specialists were more likely than probation officers to pick up subtle signs of relapse, and under the s37 /41 regime recall could take place as quickly as within two hours.


It is clear that a sentence under s45A is appropriate in some cases: as set out by LJ Dingemans above, and especially where the culpability is particularly high. But increasingly the Courts appear to be focusing on whether the public are better protected by a disposal that allows the psychiatrists to concentrate on treatment, without the risk of any progress being undone, and where the offender can be given assistance in the community, including close supervision, on release.

[1] See the definitive guidelines: https://www.sentencingcouncil.org.uk/overarching-guides/magistrates-court/item/sentencing-offenders-with-mental-disorders-developmental-disorders-or-neurological-impairments/

[2] Subject to the review of the First Tier Tribunal.

[3] This change came in as a result of the Mental Health Act 2007, which in turn was as a result of the ‘Bournewood Judgment’ HL v UK (Application No.45508/99).

[4] A topic which then became the subject matter of part of an opera by Steve Reich in 2002:  Three Tales.

[5] Department of Health and Home Office, Report of the Department of Health and Home Office Working Group on Psychopathic Disorder. (Chairman, Doctor John Reed, CB. (1994, HMSO).

[6] Categorisations of this kind date back to the Mental Deficiency Act 1913,  which distinguished between idiots, imbeciles, feeble minded persons and moral imbeciles.

[7] 2017 Thompson Reuters. See Chapter 2 in particular.


[9] See “Sentencing mentally disordered offenders in England and Wales: towards a rights-based approach: Crim. L.R. 2021, 2, 98-112

[10] 16/2/2023

[11] https://www.rcpsych.ac.uk/docs/default-source/improving-care/better-mh-policy/policy/policy-rcpsych-mha-review-submission-2018.pdf?sfvrsn=27993a01_2

[12] From among others Dr Cumming.

[13] R v Crerand [2022] EWCA Crim 962; R v Skana [2022] EWCA Crim 186; R v Lundy [2021] EWCA Crim 1922 Rv Lall [2021] EWCA Crim 404; R v Reynold [2021] EWCA Crim 10.

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