P, R v

A hospital order under section 37 of the Mental Health Act 1983 requires sufficiently current medical evidence to enable the sentencing court to assess the offender’s present mental condition and current susceptibility to treatment. A report from a practitioner who has not recently examined the offender cannot ordinarily satisfy that requirement.

Where such an order is invalid, an appellate court should not determine the substitute disposal, including immediate release, without current evidence where the offence and the offender’s apparent mental condition make further assessment material. The court may adjourn for fresh medical and probation reports, subject to the statutory bar on increasing the sentence.

The appellant was convicted at Lewes Crown Court of making a threat to kill. On 16 October 2002, the Recorder ordered detention in hospital for treatment under section 37 of the Mental Health Act 1983.

The medical material described depression, paranoid features and alcohol misuse. One practitioner had not examined the appellant since June 2000 and stated that a full hospital assessment was needed. The appellant appealed with leave, contending that the hospital order was unsupported and that he should be released immediately.

The central issue was whether the statutory requirements for the hospital order had been met and, if not, what interim disposal the Court of Appeal should make.

1. The appeal was adjourned. The court concluded that it had not been open to the Recorder to make the hospital order under section 37 of the Mental Health Act 1983. The statutory requirements had not been satisfied.
2. Section 37 required an up-to-date assessment capable of satisfying the court, at the time of sentence, as to the offender’s current mental condition and whether it required and was susceptible to treatment. Dr Warsi had not seen the appellant since June 2000 and expressly considered that a full hospital assessment was needed. His report could not therefore provide the necessary current evidential basis for the order.
3. The court could not, under section 11 of the Criminal Appeals Act, deal with the appellant more severely than the Crown Court had done. That restriction did not require immediate release. Given the gravity of the threats and the appellant’s apparent present or past serious mental condition, a final disposal without current evidence would be inappropriate.
4. The court directed that, within 28 days, reports be obtained from two registered medical practitioners qualified under section 12 of the Mental Health Act 1983, addressing the appellant’s current condition for the purposes of section 37. It also directed a Probation Service report on the suitability of a community rehabilitation order with conditions as an alternative to a hospital order. The appeal was to be relisted before 14 August 2003.

• Court of Appeal (Criminal Division) — Appeal with leave from the hospital order. The court held that the order under section 37 was not open to the Recorder on the available evidence, but adjourned final disposal pending current reports.
• Lewes Crown Court — On 16 October 2002, following conviction for making a threat to kill, ordered the appellant’s detention in hospital for treatment pursuant to section 37 of the Mental Health Act 1983.