11.2.4 Psychiatric disposals after conviction

Purposes of sentence

• The court decides disposal after a conviction, an insanity verdict or a finding that an unfit defendant did the act.

• Section 57 of the Sentencing Act 2020 sets five purposes of adult sentencing: punishment, crime reduction, rehabilitation, public protection and reparation.

• Relevant Mental Health Act orders are statutory exceptions to these purposes, so hospital treatment and prison serve different legal aims. A hybrid order combines them.

Disposals across the four jurisdictions

Statutes: Mental Health Act 1983 (MHA), Criminal Procedure (Scotland) Act 1995 (CP(S)A), Mental Health (Care and Treatment) (Scotland) Act 2003 (MH(CT)(S)A), Mental Health (Northern Ireland) Order 1986 (MH(NI)O) and the Republic of Ireland's Criminal Law (Insanity) Act 2006 (CL(I)A). In the table, "s" means section and "art" means article.

Hospital order (section 37)

• The order needs evidence from two registered medical practitioners, at least one approved under section 12.

• The court weighs the nature or degree of disorder, whether hospital treatment suits, whether appropriate treatment is available, and whether this is the most suitable disposal.

• The hospital must be able to admit within 28 days; a prospective bed that is not secured is not enough.

• The appropriate medical treatment test replaced the treatability requirement in the 2007 reforms.

• Treatment must aim to alleviate or prevent worsening of the disorder or its symptoms; it need not cure.

• A programme's label or a secure bed does not by itself show that suitable treatment exists for this patient.

• Security level is assessed separately for each patient: people on the same section may need open, low, medium or high secure care.

• Check which Mental Health Act 2025 amendments have commenced before applying revised criteria in England and Wales.

Interim hospital order (section 38)

The court uses it for further assessment before final disposal. It lasts 12 weeks at first, with extensions of up to 28 days, to 12 months in total.

Restriction order (section 41)

• Only the Crown Court can add it to a section 37 order, where necessary to protect the public from serious harm, considering offence, history and risk of reoffending.

• Restrictions have no end date.

• Leave and transfer need the Justice Secretary's consent; the Justice Secretary or the tribunal can discharge.

• Absolute discharge ends both orders, whereas removing restrictions alone can leave an unrestricted hospital order.

• Supervised discharge, since 18 February 2026, lets qualifying restricted patients be conditionally discharged with conditions amounting to deprivation of liberty, under new criteria and more frequent tribunal review.

• Ordinary conditional discharge gives no authority to impose such conditions.

Hybrid order (section 45A)

• Hospital and limitation directions attach to a prison sentence, so treatment starts in hospital while the sentence runs.

• Return to prison, release or continued detention depends on treatment needs, sentence stage and statutory powers; improvement does not mean automatic return.

• It began in 1997 and the 2007 reforms extended it to all mental disorders.

Transfer from prison

• Section 47 transfers sentenced prisoners on two medical reports and a Justice Secretary direction, which lapses after 14 days without admission.

• Section 49 adds restrictions.

• Section 48 covers certain unsentenced detainees, including some remand, civil and immigration detainees, who need urgent treatment.

• Some sentenced transferees stay as notional section 37 patients after their sentence ends; acquittal or other changes need legal review.

• A National Audit Office review of 2016 to 2017 data found only about one third of transfers met the then 14-day standard.

Mental health treatment requirement

• It attaches to a community or suspended sentence order when the offender is willing to comply.

• The court needs an identified, willing provider and a treatable condition that does not warrant hospital or guardianship.

• Treatment may be residential, outpatient or under a named practitioner, and may be combined with alcohol or drug treatment requirements.

• Probation supervises; breach without reasonable excuse can return the person to court.

• It is underused, and availability varies locally.

Prison and equivalence of care

• Prisoners should get care equivalent to the community; England's prison healthcare is NHS-commissioned but limited by staffing, facilities and routines.

• The MHA does not authorise forced treatment in an ordinary prison; when compulsory treatment is needed, seek transfer.

• The Mental Capacity Act can allow treatment of a prisoner lacking capacity, and not only in emergencies.

• Lack of capacity is not a prerequisite for MHA treatment.

• Section 117 aftercare applies only to specified qualifying sections.

The psychiatrist's role

• The psychiatrist gives diagnosis, functional effects, risk formulation, realistic treatment options and confirmed admission arrangements.

• The psychiatrist recommends a disposal and the court decides; the report should say plainly when no bed, provider or workable plan exists.

Rights and review

• Detention must meet Article 5 requirements, stay reviewable and use the least restrictive suitable setting.

• Services should review ethnic inequalities in detention, treatment access, interpretation and progression, without letting group data decide individual risk.

• Eligible victims of violent or sexual offences may make representations about discharge conditions; an unrestricted order does not remove every entitlement.