Why a s.37/41 Hospital Order is not “getting away with it”

Charlotte Davies explores the restricted patient regime, why a court may opt to send someone to a psychiatric hospital rather than prison, and what it means for society.

There has been much in the news recently about whether sending someone convicted of a heinous criminal offence to a locked psychiatric hospital amounts to an “unduly lenient” sentence.

After enormous public pressure, Valdo Calocane’s sentence for the manslaughter of three people, and attempted murder of another three, in Nottingham in June 2023 has been referred to the Court of Appeal by the Attorney General, who accepted the argument that his sentence is “unduly lenient”. Calocane was sentenced to an indefinite hospital order with restrictions.

During the sentencing process, Calocane was assessed by five consultant forensic psychiatrists including two for the defence. Three of the five (including the two defence psychiatrists) assessed him in person; one examined medical records; and his Responsible Clinician also gave a view. All five psychiatrists agreed that section 37/41 was the most appropriate disposal, with one stating that Calocane’s offending was “entirely attributable” to his mental disorder. The evidence was that his acute psychosis entirely distorted his perception of reality. It is also of note that the evidence revealed no history of significant substance abuse. In short, Calocane suffers from an illness for which he is in no way responsible for having. An extraordinarily difficult fact for the grieving families of the victims to accept when human nature in such horrendous circumstances is to, entirely understandably, focus on blame and revenge. However, we live in a civilised society and we treat our sick, and in doing so, we make everyone safer. ?

Whilst there are certainly difficult questions for mental health services to answer (or indeed, the funders of our mental health services), what other option, in reality, did the court have in light of the above evidence from the experts? If Calocane had been sent - unmedicated - to prison, it would have only been a matter of time before he was transferred to hospital. In the face of overwhelming and consistent psychiatric evidence, it is clear why a straightforward prison sentence was off the table.

A “hybrid” section 45A order (hospital for treatment, then prison) was an option that was considered and rejected. This is likely to be the focus of the Court of Appeal. Having weighed up the factors set out in the key cases of R v Vowles [2015] EWCA Crim 45 and R v Edwards [2018] EWCA Crim 595, and the psychiatric evidence, the judge decided that s.37/41 would offer the best protection to the public. The hard work done in hospital can often be very quickly undone in the prison environment, increasing risk to public safety upon release, which would then be managed by the probation service, rather than mental health professionals. Essentially, and to quote the judge’s sentencing remarks, “there will be cases where the protection of the public via a restriction order will outweigh the importance of a penal element”.

Secure psychiatric units are not places any of us would want to be. I have been in dozens, and whilst it is correct that, as one news outlet feigned abject horror over, there are “comfy sofas and even sensory gardens”, the fact is the person has been deprived of their liberty and placed in an environment in which they will have no privacy at all, surrounded by equally unwell and unpredictable ward-mates. They are medicated, often against their will, with powerful antipsychotics via intra-muscular injection, along with a host of other medications, enduring extremely challenging side effects whilst dosages are optimised. Although we do not go in for straightjackets and lobotomies anymore, there is, in my view, nothing “lenient” about it. Those who work in the mental health system treat patients with the dignity and respect that a civilised society demands, as is the case with prisoners in the prison system.

Part III of the Mental Health Act 1983 deals with the admission to hospital and treatment of patients from the criminal justice system. Part III patients can be both restricted and unrestricted. A court can sentence a person to a hospital order under s.37 without restrictions, and such patients would be treated as s.3 patients, save that they cannot apply to the Mental Health Tribunal during the first six months.

If the court considers that the public need to be protected from serious harm, as it did in the case of Calocane, it can also impose a restriction order under s.41, in addition to the s.37 hospital order. Section 41 restrictions mean that the Secretary of State must consent to certain aspects of the patient’s management, such as leave, hospital transfers and, most importantly, discharge into the community. Unlike every other category of detained patient, the Responsible Clinician cannot discharge the patient.

Restricted patients can not apply to the tribunal in the first six months, and can then only apply once in the following six-month period. Thereafter, it is once every twelve months. Insofar as automatic references to the tribunal are concerned, the Secretary of State takes on a number of duties, along with a general discretion to make a referral at any time. A reference must be made when no hearing has taken place within the previous three years. This latter requirement may very well be why the press reported that Calocane “could be out in three years”, an outcome which, if you read the sentencing remarks, is beyond unlikely.

Although restricted patients can be discharged absolutely, this happens exceptionally rarely. It is far more likely that a conditional discharge will occur. This is where very strict conditions are placed on a patient such that they can be discharged from hospital as safely as possible. These conditions are far more stringent than licence conditions a person might be subject to following release from prison. The Secretary of State reserves the power to recall the patient back to hospital and there is no legal threshold for doing so, however the Codes of Practice identify factors for consideration, with the safety of the public being at the forefront.

Patients can apply to the Mental Health Tribunal after twelve months of the conditional discharge. The tribunal can grant an absolute discharge, or can vary the conditions imposed, but it is for the patient to prove on a balance of probabilities that the necessity for the conditions no longer exists. As can be seen, the s.37/41 regime is very tightly regulated.

What is the Court of Appeal going to do? The Attorney General has certainly placed it in a very difficult position. Valdo Calocane is unlikely to ever be free again, and nothing is going to make the pain any less for the families of those he killed, but if the court does not change the sentence imposed, it is evidently a much-needed opportunity for us all to learn a lot more about hospital orders and the reasons for them.

Charlotte is a Mental Health Tribunal judge and author of “A Practical Guide to the Mental Health Tribunal” published by Law Brief Publishing. Before being appointed as a judge she represented patients at tribunal hearings for ten years.

Charlotte accepts instructions in a number of mental health law related areas including attending tribunal hearings, advising on appeal prospects, and advising on and representing local authorities at nearest relative displacement applications.

If you wish to discuss instructing Charlotte on a matter involving mental health law, or in any of her other practice areas, her clerk Jamie can be contacted on 01752 221551 or [email protected].