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The courts and mental health

Explains what may happen if you are charged with committing a crime, what happens when you to go court, and how your mental health is taken into account.

  • This information applies to England and Wales.
  • This information applies to adults. It doesn't apply to children unless specifically stated.

Overview

Sometimes, people with mental health problems come into contact with the criminal justice system and have to go to court.

For information about what happens if you have contact with the police, including if you are arrested and if you are taken to the police station, see our legal information on the police and mental health.

Quick facts

  • If you are charged with an offence, you will first have to go to the Magistrates' Court for a hearing. At this first hearing, the magistrates will decide which court your case will be heard in: the Magistrates Court or the Crown Court.
  • You should get legal advice from a solicitor if you can. A solicitor can help you understand what's happening and help you get the best possible outcome. Sometimes you can get legal aid to help you pay for this.
  • You will need to enter a plea if you are charged with a crime and have to go to court. This means saying you're "guilty" or "not guilty". If your mental health problem means you aren't able to understand the meaning of the charge against you, the court might say that you're unfit to plead.
  • Before your trial, the court will decide where you're allowed to stay. Depending on your situation, you might be allowed to go home on bail, be kept in prison on remand, or sent to hospital for a report on your mental health.
  • If you have a trial, the prosecution will try to prove that you're guilty, and you will try to argue that you are innocent. You generally can't use a mental health problem as a defence, although there are some exceptions to this.
  • If you are found guilty, the courts have a number of options of what your outcome might be. The courts should take your mental health problem into account when they decide. You may be able to appeal the decision if you disagree with it.
  • There are some important sections of the Mental Health Act to be aware of:
    • Section 37 – This is an order to send you to hospital instead of prison.
    • Section 37/41 – This is an order to send you to hospital instead of prison, with restrictions added. The Crown Court might add restrictions if it thinks you are a serious risk to the public.
    • Section 47 – If you're serving a prison sentence, the prison can transfer you from prison to hospital for treatment under section 47.
    • Section 47/49 – This is a transfer from prison to hospital, with restrictions added. The Ministry of Justice might add section 49 restrictions if they think it is appropriate.
    • Section 48/49 – Under section 48 you can be sent to hospital when on remand in prison or in an Immigration Removal Centre. Usually the Ministry of Justice will add special restrictions to your transfer under section 49, making it a section 48/49.
  • Don't forget to look after yourself. Going through any legal process involving the courts can be very stressful, especially if you're living with a mental health problem. So it's important to make sure you're looking after your own mental health and wellbeing.

These pages contain general legal information, not legal advice. We recommend you get advice from a specialist legal adviser or solicitor who will help you with your individual situation and needs. See our useful contacts page for organisations which may be able to help.

This information was published in July 2018. We will revise it in 2021.

References are available on request. If you would like to reproduce any of this information, see our page on permissions and licensing.

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