Section 45A hybrid orders: hospital and limitation directions

What is a section 45A hybrid order?

A hybrid order is two directions given alongside a prison sentence. The hospital direction sends the person to hospital instead of prison. The limitation direction makes them a restricted patient, as if they had a restriction order (s45A(3)).

The court can't give one without the other (Ref Guide 16.3). The aim is to let courts deal with some of the hardest cases in a way that respects the need for treatment, justice, and the protection of others (Code 22.72).

Who can get a hybrid order?

• The Crown Court only, after a conviction for an offence other than murder (s45A(1)).
• Aged 21 or over. Courts can't sentence people under 21 to imprisonment, so s45A isn't available for them (Ref Guide 16.7; Code 22.52).
• Any mental disorder. It isn't limited to particular diagnoses, though learning disability alone counts only with abnormally aggressive or seriously irresponsible conduct (s1(2A), (2B)).
• Some remaining culpability. The Code says courts have generally looked for a significant degree of culpability, though they don't always apply that test (Code 22.74).

Section 45A criteria

The court must be satisfied of all of these (s45A(1), (2), (4), (5)):

• Two doctors. At least one is s12 approved, and at least one gives evidence in person (s45A(4), s54(1)).
• The medical test. A mental disorder of a nature or degree that makes detention in hospital for treatment appropriate, with appropriate medical treatment available.
• A hospital order considered first. The court must consider a hospital order before deciding on a prison sentence.
• A bed within 28 days. The approved clinician who'd be in charge, or someone for the managers, confirms admission within 28 days. Until then the court can direct a place of safety.

An interim hospital order can come first, to test treatment (s45A(8)). In an emergency, the Justice Secretary can direct admission to a different hospital within the 28 days (s45A(6)).

Section 45A or section 37/41? How courts choose

The choice is the court's, and there's no presumption it will make a hybrid order just because the evidence allows one (Code 22.74). The Sentencing Council says that if a penal element is appropriate, given culpability and seriousness, and s45A can deal with the disorder, the judge should use it.

Neither order is assumed to protect the public better. Sometimes a restriction order does, and sometimes a hybrid order does. The court needs your evidence on how each one ends, because the release route can't be changed once the order is made (Sentencing Council, Annex C).

What happens in hospital on a hybrid order

• Managed like a transferred prisoner. The hospital direction works as a transfer direction, and the limitation direction as a restriction direction (s45B(2)). Leave, transfer and discharge need the Justice Secretary's consent.
• Treatment. Part 4 applies, and the RC reports to the Justice Secretary at least once a year (s45B(3)).
• Unescorted leave is harder. MHCS generally won't agree unescorted community leave they wouldn't get from prison on temporary licence. The RC must consult the offender manager before applying (MHCS leave guidance 4.4).
• Remission stays open. Once they're well enough for leave, MHCS expects the RC to consider whether they still meet the criteria, or should go back to prison (MHCS leave guidance 4.3).
• Probation leads on risk. The probation service is usually the lead MAPPA agency for s45A patients (MoJ MAPPA guidance).

If treatment ends: remission to prison

Remission starts when the RC, another approved clinician or a tribunal tells the Justice Secretary one of two things. Either they no longer need treatment in hospital, or no effective treatment can be given there (s50(1), (5)). The Justice Secretary can then return them to prison for the rest of the sentence, or release them on licence if they'd be eligible.

Hold a section 117 meeting with the prison healthcare team before they go (Ref Guide 16.22). NHS England aims to complete remission within 14 days of the decision. Both directions end when they arrive in prison (Ref Guide 16.25). If they become unwell again, they can come back under s47/49 (MoJ restricted patient briefing).

Section 45A tribunal rights

• When they can apply. Once between 6 and 12 months after the directions, then once a year (s70). The Justice Secretary must refer them if 3 years pass without a hearing (s71(2)).
• What the tribunal decides. It tells the Justice Secretary whether they'd be entitled to discharge if they were on a restriction order (s74(1)).
• If the Justice Secretary agrees within 90 days, the tribunal discharges them, absolutely or conditionally (s74(2)).
• If not, they go back to prison, unless the tribunal recommended they stay in hospital if a conditional discharge isn't agreed (s74(3)).
• The Parole Board. That recommendation doesn't stop a Parole Board application. If the Parole Board directs release, the limitation direction ends then (s74(5A)). See the tribunal.

What happens at the release date?

The limitation direction ends on the release date, but the hospital direction doesn't (s50(2), (5)). If they're still in hospital, including on leave, they stay detained as an unrestricted patient: a notional s37 (Ref Guide 16.17; Code 22.75). If they were conditionally discharged and not recalled, they're treated as absolutely discharged (s74(6), s73(6)).

The release date is the day they'd have been entitled to leave prison, unconditionally or on licence. Parole Board powers and discretionary early release, such as home detention curfew, don't count (s50(3); Ref Guide 16.16). For a life or other indeterminate sentence, it's the date, if any, the Parole Board directs release.

After that, the RC and managers decide on leave and discharge, a CTO becomes possible, and the Justice Secretary has no say (Code 22.76). They can apply to the tribunal within 6 months (s69(2)). Section 117 aftercare applies when they leave hospital. Keep the offender manager and victim liaison officer involved until the sentence ends (Code 22.77).

Section 45 isn't the hybrid order

Section 45 is a different provision. It gives a right of appeal when a magistrates' court makes a hospital or guardianship order without convicting the person (s45). Section 45B, not s45, sets out how a hybrid order works once it's made.

Common mistakes with section 45A

• Forgetting the prison sentence. A s45A patient is a prisoner too. Recovery usually means remission, not discharge into the community (Sentencing Council, Annex C).
• Assuming the tribunal can discharge. It can only say they'd be entitled to discharge. The Justice Secretary decides (s74).
• Missing the release date. Diary it. The restrictions fall away automatically that day, and who decides changes with them.

A worked example

The limitation direction ends that day, but he stays detained under the hospital direction as a notional s37 patient. From then on the RC and managers decide about leave and discharge, and he can apply to the tribunal within 6 months. He may still be on licence, so keep his offender manager involved.