Hospital Orders

Rehabilitation period 5 years (Rehabilitation of Offenders Act 1974 s 5(7))

Who can get one? There appears to be no age restriction.

 What does it mean? A court can, instead of ordering an offender to serve a term of detention or imprisonment, order them to be detained in a hospital, in order to receive treatment for a mental disorder.


General Under MHA 1983 s 37(1), an order may be made where a person is convicted of an offence punishable with imprisonment and the test is satisfied.

Without conviction MHA 1983 s 37(3) provides a power to order without the need for a conviction, where the court is satisfied that the accused did the act or omission charged.


The test which must be satisfied is:

  1. On the evidence of two medical practitioners, the defendant is suffering from a mental disorder, and the disorder makes it appropriate for him to be detained in a hospital for treatment, and that treatment is available.
  2. The court is satisfied, having regard to all the circumstances, that a hospital order is the most suitable method of dealing with the defendant. (MHA 1983 s 37(2))

The order is discretionary.

Human Rights Act 1998

R v Drew 2003 UKHL 25 held that Hospital Orders are not incompatible with the European Convention on Human Rights Articles 3 or 5.

Link between illness and offence

R v McBride 1972 Crim LR 390 held that there does not need to be a link between the offence and the illness.


When Magistrates’ Courts commit a defendant to the Crown Court under MHA 1983 s 43(1), they usually do so either on bail or in custody. Where they are satisfied, on written or oral evidence, that the proper disposal would be a Hospital Order, they may order him to be admitted to a hospital for him to be detained there until the conclusion of his Crown Court trial. (MHA 1983 s 44(1))

Restriction Orders

The power is contained within MHA 1983 s 41(1). The court must have imposed a hospital order before considering a restriction order.

These are only available for over 14s.

The test is if, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm, the court may impose a restriction order in addition to a hospital order.

The test is concerned with risk of future harm, not the seriousness of the risk that the defendant will reoffend.

Only the Crown Court can impose this order.

The restrictions include that the power to discharge, transfer and grant leave to the patient cannot take place without the consent of the Secretary of State. (MHA 1983 s 41(3))


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