When a court is considering how to dispose of a case where a defendant is suffering from a treatable mental illness, there are several options available. In this article, Mark Pritchard examines the significance of an assessed risk of serious harm and the use of a Restriction Order.
What is a restriction order?
When dealing with the disposal of a case, the court has the power, under section 37 of the Mental Health Act 1983, to order hospital admission if the prerequisite criteria are met. The court may then go on to impose a restriction order under s.41 of the MHA.
If that order is made, the person detained cannot be granted leave, transferred to another hospital or discharged without the consent of the Secretary of State for Justice.
What is the test that the court must apply?
Firstly, the court cannot impose a freestanding restriction order; it must be made alongside a s.37 order. While a Magistrates’ Court has the power to impose an s.37 order, it has no power to make a s.41 order, and must commit the matter for sentence to the Crown Court.
The test that the Crown Court must consider is that the making of the order is “… necessary for the protection of the public from serious harm”.
The court must have regard to the “nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large” when making the decision to impose a restriction order.
The case of Birch distinguishes serious harm from serious risk of general reoffending.
“The court is required to assess not the seriousness of the risk that the defendant will re-offend, but the risk that if he does so the public will suffer serious harm.”
That risk of serious harm need not be to the public at large; risk of serious harm to an individual will be sufficient.
It was stressed that the potential harm must be serious.
“Nevertheless the potential harm must be serious, and a high possibility of a recurrence of minor offences will no longer be sufficient.”
This was explored further in the case of Pemberton (1996) 24 June [unreported], where it was found that serious risk of harm will not be sufficient. The court must find there is potential for serious harm occurring, and not simply a high risk of some harm.
This does not mean that an s.41 order is only available following serious offending – in R v Cowan  EWCA Crim 3081, an order was made on conviction for a common assault based on the risk of serious harm occurring to the public in the future.
When considering this test, the sentencing judge must hear the views of at least one doctor who has undertaken the assessment in relation to s.37. The Case of R v Reynolds  2 Cr App R (s) 5 provided the ruling that, “On hearing the evidence there must be at least some basis upon which the doctor is able to say, and persuade the court, that a restriction order is appropriate”.
The judge however is not bound to accept their opinions in the case of Birch. If a judge does depart from the medical recommendations for such a decision to be upheld on appeal, the judge’s reasons for doing so must be ‘persuasive’ per R v Parkin  EWCA Crim 856.
A judge should not base the decision on his or her own views in contradiction of the medical evidence per R v George (2000) WL 1544620.
What are the consequences of a restriction order?
Once a s.41 order is made, there can be serious consequences to the patient. As a patient is only able to be granted leave from hospital with the consent of the Secretary of State, those subject to a restriction order will generally receive less leave.
Hospital leave will usually form a key part of every patient’s long term care plan and successful periods of leave will inform the decision to recommend that the patient is discharged. Patients who are subject to a restriction order tend to spend longer in hospital than those on a stand-alone s.37 order.
Those who are subject to a restriction order can be subject to onerous recalls, even when discharged from hospital. Many restricted patients are only ever conditionally discharged from hospital under s.42(2) of the MHA. Under s42(3) of the MHA, the Secretary of State may at any time recall the patient to hospital.
This power can have a chilling effect on the ability of a patient to have an active say in their treatment in the community.
Failure to agree or comply with a treatment plan can result in immediate recall to hospital for an indefinite period.
Can a restriction order be challenged or appealed?
The imposition of a restriction order can be appealed to the Court of Appeal if the judge erred in law when imposing the order, such as in the cases of Pemberton and George above. Each case is fact specific and will require specialist legal advice to establish if a prospective appeal has merit.
Once a person is subject to the order, they can appeal to the Secretary of State to end the order outright under s.42(1). The Secretary of State will only grant this appeal if the restriction order is no longer required for the protection of the public from serious harm.
When discharging someone from hospital, the Secretary of State may choose to absolutely discharge them from the restriction order under s.42(2) MHA.
The role of the Mental Health Tribunal
The only other way in which a patient can be discharged from a restriction order is via the Mental Health Tribunal.
A patient who is in hospital may apply to the Tribunal after they have been in hospital for 6 months, and then every 12 months per s.70 MHA.
A person who has been conditionally discharged may apply to the Tribunal 12 months after discharge, and every two years after, per s.75. The Mental Health Act 1983 also requires the Secretary of State to refer patients to the tribunal when they are inpatients or if they are recalled under s.42.
It is important that those seeking discharge by the Mental Health Tribunal secure qualified and proper representation in preparation and at hearings. Such representation is available at no cost to the patient and there are specialist solicitors and barristers who work either exclusively in this field or who have knowledge and experience in both mental health law and criminal law. Dual experience and knowledge can often be important when it comes to examination of witnesses and understanding of the overlap between the two fields.
He has a background in working within mental health services of England and Wales.
To instruct Mark or any of our specialists in these fields, please contact the clerking team by email.