When does a hospital order becomes spent? (ie: when does a patient with a S37 sentence no longer have to disclose their offence to employers if asked)
From the rehabilitation of offenders act S5 (8), I can see that a hospital order without restriction is to be considered as a “relevant order”
Apologies for the copy past, however, this is the definition of when a “relevant order” is considered spent:
Subsection (2B) applies where provision is made by or under a relevant order for the order to have effect—
(a)until further order,
(b)until the occurrence of a specified event, or
(c)otherwise for an indefinite period.
(2B)The rehabilitation period for the order is the period—
(a)beginning with the date of the conviction in respect of which the order is imposed, and
(b)ending when the order ceases to have effect.]
(3)The rehabilitation period for a relevant order which is not otherwise dealt with in the Table or under subsections (2A) and (2B) is the period of 24 months beginning with the date of conviction.]
Would a hospital order be considered an order “until further order” or “an indefinite period” or would S5(3) apply?
If S5(2B) applied, would being discharged under a CTO mean that the “relevant order” is still in place, and would this mean the offence is still considered “unspent”, meaning patients discharged from S37 on CTOs have to disclose their offence to employers if asked?
For hospital orders the rehabilitation period is considered to be Five years, or a period ending two years after the order expires (whichever is longer).
I had a case in 2023 where the police looked at this and their legal department advised the start date for the 5 years would be the date of discharge from hospital (and the s37).
Under this Act, as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, a hospital order (with or without a restriction order) is a “relevant order” (s5(8)) and so the rehabilitation period ends on “[t]he day provided for by or under the order as the last day on which the order is to have effect” (s5(2)). The Act goes on to say: “Where no provision is made by or under a … relevant order for the last day on which the order is to have effect, the rehabilitation period for the order is to be the period of 24 months beginning with the date of conviction.”
The previous position was that the rehabilitation period was the period of five years from the date of conviction or a period beginning with that date and ending two years after the date on which the hospital order ceases or ceased to have effect, whichever is the longer.
I believe a hospital order is covered by s5(2A) ROOA, being imposed “otherwise for an indefinite period”.
So the rehabilitation period ends when the hospital order ceases to have effect, as per 5(2B).
s17D MHA, read with s40(4) and para 2A of Pt 1 of Sch 1, means that while a CTO remains in force, the underlying hospital order does too. So the rehabilitation period can’t have ended.
(I think the guidance Christine mentions is unfortunately now out of date. Likewise the text quoted by Jonathan. s5 was amended again by the Police, Crime, Sentences and Courts Act 2022 with effect from 28 October 2023.)
I am pleased that Richard said that as this was my understanding and I have assured hospital order patients that their conviction is spent once they are discharged (s37 )or Absolutely discharged (s37/41)
Thank you for the additional information, this is a more complex issue than what I had anticipated! I was looking at S37 of the MHA, as well as the wording on some of the MOJ S37 sentencing documents I have for patients and there is no reference to a S37 being for an “indefinite period”. Where is it defined that we should take S37s as being for an “indefinite period”?
(I would more easily understand S37/41 as falling under that definition as they are not subject to renewal, where are S37s are)
Thanks for this. I’ve checked on the phone and think this was added two years ago, so my notes are out of date! I’ll have to update the notes when I’m on the computer next.
The last time I looked at this it was wondering whether I could argue that a restricted hospital order is spent upon conditional discharge. I can’t remember the conclusion but remember getting vague answers from people who were muddling through. I think the official position was that an absolute discharge was needed, which ties in with your view on the CTO.
It just makes sense in the context. Indefinite is different to infinite. The table talks about orders with a predestined end date within the order. The subsection following it sets out what happens for other orders. Hospital orders can be ended before six months or extended beyond that, so are indefinite in that sense.
It’s not expressly said anywhere in the legislation that s37 hospital orders are “for an indefinite period”. But, to my mind, that’s the effect.
The court cannot choose how long a hospital order will last. At the point it is imposed, no-one knows when it will be discharged.
You’re right, of course, that without a restriction order it would end after six months if not renewed. But it would be odd to say that it is therefore imposed for six months, since a renewal does not create a new order, or vary the original - it just continues its effect. And if it’s not imposed for six months, then what finite period is it imposed for ?
Maybe you could argue that the rules in the MHA on duration, renewal and discharge are implicit in the making of a hospital order, and therefore there is a “day provided for by or under the order as the last day on which the order is to have effect” as per the bottom row of the table in s5(2) RoOA. But that seems a stretch to me. In any case, it would result in the rehabilitation period being the same as if it were considered indefinite.
I think Richard is right about CTOs (as s17D specifically says that “[t]he application for admission for treatment in respect of a patient shall not cease to have effect by virtue of his becoming a community patient”) but I found the emails about conditional discharge from the head of the Mental Health Casework Section in 2019. It was agreed that I could describe the (then) relevant guidance as:
Guidance on spent convictions etc Is a restricted hospital order spent when the patient is conditionally discharged or when he is absolutely discharged? The Ministry of Justice does not have an official position on the matter, but refers to this guidance document which states that under the Rehabilitation of Offenders Act 1974 the rehabilitation period of a hospital order, with or without a restriction order, is the “period of the order” (email correspondence, 11/7/19).
It struck me as odd that they didn’t take a position one way or the other. NACRO didn’t know either. I think the conventional wisdom is that it takes an absolute discharge, but I still wonder. Incidentally, I’ve just noticed that the guidance got updated in 2023 when the law did but, from a quick glance at it, it still doesn’t mention conditional or absolute discharge, and in relation to hospital orders generally gets s5(2A), (2B) and (3) topsy-turvy.
Perhaps not as clear cut as for CTOs, but I think the wording of the Act strongly supports the conventional view. In particular s41 -
“(3) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows—
(a) none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under section 42, 73, 74 or 75 below;”
In other words, a conditionally discharged patient is still subject to a hospital order.
(Also just noticed that SofS’s power in s42(2) is to discharge the patient “from hospital” (either absolutely or conditionally), whereas an RC’s power in s23 is to discharge “from detention”. I suspect that distinction is deliberate, precisely because conditional discharge doesn’t end the authority to detain - ie the hospital order.)
I think you must be right. Also relevant is that for prison sentences the rehabilitation periods are counted from the end of the licence period.
Here are my original notes from 2007-08 (when the period was different but, like now, was based on when the order ceases to have effect) – so wanting to help my client in the intervening years maybe clouded my judgement! I can’t remember what happened with him.
Section 5(7) Rehabilitation of Offenders Act 1974 states:
Where in respect of a conviction a hospital order . . . (with or without a restriction order) was made, the rehabilitation period applicable to the sentence shall be the period of five years from the date of conviction or a period beginning with that date and ending two years after the date on which the hospital order ceases or ceased to have effect, whichever is the longer.
The “date on which the hospital order ceases… to have effect”, in relation to restricted patients, is taken to mean the date of absolute discharge rather than conditional discharge.
