Hybrid Orders – Hospital and Limitation Directions

What is a hybrid order?

Hospital and Limitation Directions under section 45A of the Mental Health 1983, as amended in 2007, are commonly known as hybrid orders. Using this order, a judge can mandate that a convicted offender has hospital treatment whilst also giving a custodial sentence. Once treatment in hospital is completed, the offender can be transferred back to prison to complete their sentence.

For more information on hospital orders, please click here: Hospital Orders

Closeup portrait of a disappointed young man

When might a hybrid order be given?

As with other hospital orders, for example under section 37 of the Mental Health Act as amended in 2007, for a hybrid order to be given:

  • The defendant must be convicted of an offence (other than murder)
  • This offence must be punishable by a custodial sentence
  • There must be sufficient evidence from two registered medical practitioners that the defendant is suffering from a mental disorder of a nature or degree which makes it appropriate for them to be detained in hospital for treatment
  • At least one of the reports must confirm appropriate medical treatment is available within 28 days of sentencing

For a hybrid order, the defendant must be over 21. There are specific elements of the case that judges will consider when making a hybrid order, as detailed below.

What is needed in an expert report for a hybrid order to be given?

As with other hospital orders, expert evidence should focus on the defendant’s mental disorder, the nature and degree of this disorder, and appropriate treatment. Experts may give an opinion on which hospital order would be most appropriate. However, medical experts should bear in mind that hybrid orders also consider the need for a penal element of a sentence which is ultimately a matter for the court to decide.

What will the judge consider before giving a hybrid order sentence?

One of the most significant pieces of case law judges will consider when making a hybrid order is R v Vowles [2015]. This sets out that “in a case where…in the light of all the circumstances referred to, a hospital order… might be an appropriate way of dealing with the case, a judge should consider whether the mental disorder could appropriately be dealt with by a hospital and limitation direction under section 45A; if it could, then the judge should make such a direction.” That is, once a court is satisfied that a hospital order would be appropriate, a hybrid order should be considered before an alternative hospital order such as under section 37 Mental Health Act, as amended in 2007. 

The more recent case R v Edwards [2018], further clarified this point. Ms Edwards had previously been detained under section 37/41 Mental Health Act as amended 2007, and was subsequently convicted of manslaughter by reason of diminished responsibility. She was initially sentenced to a hybrid order in conjunction with life imprisonment to serve a minimum of 10 years before being considered for parole. Following Ms Edwards’ appeal, the following guidelines for judges were established: 

  1. The first step is to consider whether a hospital order may be appropriate.
  2. If so, the judge should then consider all his or her sentencing options including a s.45A order.
  3. In deciding on the most suitable disposal the judge should remind him or herself of the importance of the penal element in a sentence.
  4. To decide whether a penal element to the sentence is necessary the judge should assess…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.
  5. 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.
  6. If the judge decides to impose a hospital order under s.37/41, he or she must explain why a penal element is not appropriate.

Other considerations with hybrid orders

As Judge Bevan stated in his sentencing remarks in the case of R v Edwards, “I am conscious that a hybrid order creates immediately an internal tension because… a section 37/41 order is non-punitive, whereas a hybrid order is partially custodial”. Although medical experts are not expected to comment on the need for a penal element of a sentence, it should be noted that courts often heavily rely on medical evidence in such cases, particularly where the situation is complex or nuanced. This will also determine the manner of follow-up a patient receives; under a section 37/41 hospital order monitoring and support in the community will be provided by mental health services, whereas following release from a hybrid order this is ultimately a matter for probation. 

How does a hybrid order end?

Unlike other hospital orders, a hybrid order is time-limited as mandated at sentencing. If the offender is still in hospital following a successful parole hearing or the end of the sentence, the section will be treated as a notional section 37 Mental Health Act as amended 2007, and can therefore end by first-tier mental health tribunal or discharge by the Responsible Clinician. 

Leave from the hospital can only be given with permission from the Secretary of State and is unlikely to be given until the patient is nearing discharge. 

This blog has been written by Dr Alexandra Blackman, Consultant Forensic Psychiatrist.