Regina v Birch: CACD 1989

Even where there is culpability, a hospital order with a restriction order may well be the appropriate way to deal with a dangerous and disordered person.
Mustill LJ discussed the effect of a restriction order: ‘In marked contrast with the regime under an ordinary hospital order, is an order coupled with a restriction on discharge pursuant to section 41. A restriction order has no existence independently of the hospital order to which it relates; it is not a separate means of disposal. Nevertheless, it fundamentally affects the circumstances in which the patient is detained. No longer is the offender regarded simply as a patient whose interests are paramount. No longer is the control of him handed over unconditionally to the hospital authorities. Instead the interests of public safety are regarded by transferring the responsibility for discharge from the responsible medical officer and the hospital to the Secretary of State alone (before September 30, 1983) and now to the Secretary of State and the Mental Health Review Tribunal. A patient who has been subject to a restriction order is likely to be detained for much longer in hospital than one who is not, and will have fewer opportunities for leave of absence.’
As to the problem facing a sentencer where the defendant needs hospital treatment but his offence merits punishment: ‘For the present purposes it is, we believe, sufficient to note that the choice of prison as an alternative to hospital may arise in two quite different ways: . . . (2) Where the sentencer considers that notwithstanding the offender’s mental disorder there was an element of culpability in the offence which merits punishment. This may happen where there is no connection between the mental disorder and the offence, or where the defendant’s responsibility for the offence is ‘diminished’ but not wholly extinguished. That the imposition of a prison sentence is capable of being a proper exercise of discretion is shown by Morris (1961) 2 Q.B. 237 and Gunnell. Nevertheless the more recent decision Mbatha (1985) 7 Cr.App.R(S) 373 strongly indicates that even where there is culpability, the right way to deal with a dangerous and disordered person is to make an order under section 37 and 41.’
Mustill LJ explained the operation of a section 37 hospital order: ‘Once an offender is admitted to hospital under a hospital or transfer order without restriction on discharge, his position is as if he were a civil patient. He passes from the penal system to the hospital regime. Neither the court nor the Secretary of State has any say in his disposal. Thus, like any other mental patient, he may be detained only for a period of six months, unless the authority to detain is renewed, an event which cannot happen unless certain conditions, which resemble those which were satisfied when he was admitted, are fulfilled. If the authority expires without being renewed, the patient may leave. Furthermore, he may be discharged at any time by the hospital managers or the ‘responsible medical officer’. In addition to these regular modes of discharge, a patient who absconds or is absent without leave and is not retaken within 28 days is automatically discharged at the end of that period (section 18(5)) and if he is allowed continuous leave of absence for more than six [now twelve] months, he cannot be recalled (section 17(5)).
Another feature of the regime which affects the disordered offender and the civil patient alike is the power of the responsible medical officer to grant leave of absence from the hospital for a particular purpose, or for a specified or indefinite period of time: subject always to a power of recall (except as mentioned above).
There are certain differences between the positions of the offender and of the civil patient, relating to early access to the Review Tribunal and to discharge by the patient’s nearest relative, but these are of comparatively modest importance. In general the offender is dealt with in a manner which appears, and is intended to be, humane by comparison with a custodial sentence. A hospital order is not a punishment. Questions of retribution and deterrence, whether personal or general, are immaterial. The offender who has become a patient is not kept on any kind of leash by the court, as he is when he consents to a probation order with a condition of inpatient treatment. The sole purpose of the order is to ensure that the offender receives the medical care and attention which he needs in the hope and expectation of course that the result will be to avoid the commission by the offender of further criminal acts.’
Mustill LJ, Saville and McKinnon JJ
(1989) 11 Cr App R (S) 202
Mental Health Act 1983 37
England and Wales
Cited by:
ApprovedRegina v Drew HL 8-May-2003
The defendant was mentally ill. He had been convicted of a second serious offence, and now appealed the life sentence imposed. Psychiatrists had recommended a hospital order, but such an order could not now be made by virtue of the 2000 Act save in . .
[2003] UKHL 25, Times 09-May-03, Gazette 03-Jul-03, [2003] 1 WLR 1213, [2004] 1 Cr App R (S) 8, (2004) 75 BMLR 34, [2003] 2 Cr App R 24, [2003] 4 All ER 557
CitedGray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered severe psychiatric injured in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had gone on to kill another person, and he had been detained under section . .
[2009] UKHL 33, Times 19-Jun-09, [2009] PIQR P22, (2009) 108 BMLR 205, [2009] 4 All ER 81, [2009] 3 WLR 167, [2009] 1 AC 1339
CitedHenderson v Dorset Healthcare University NHS Foundation Trust CA 3-Aug-2018
Upon the allegedly negligent release of the claimant from mental health care, she had, while in the midst of a serious psychotic episode, derived from the schizophrenia, killed her mother and been convicted of manslaughter. She now sought damages in . .
[2018] EWCA Civ 1841, [2018] WLR(D) 521

These lists may be incomplete.
Updated: 15 December 2020; Ref: scu.182174