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 there conviction is spent once they are discharged (s37 )or Absolutely discharged (s37/41)
