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The courts and mental health

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

What is a section 37/41?

This is a section 37 hospital order with section 41 restrictions added. Only the Crown Court can add section 41 restrictions. They might add them if they think the restrictions are necessary to protect the public from serious harm.

A Magistrates’ Court can also send your case to the Crown Court for sentencing if they think section 41 restrictions should be added.

When deciding whether to add section 41 restrictions, the Crown Court must consider:

  • The seriousness of the offence you have committed
  • Any previous offences you may have committed
  • The risk of you committing more offences in the future

How long will I be in hospital under section 37/41?

A section 37/41 lasts until you are discharged by the Mental Health Tribunal or by your responsible clinician. If your responsible clinician thinks you should be discharged, they'll need to get permission from the Ministry of Justice.

The Ministry of Justice also needs to give permission for you to have section 17 leave or for you to transfer to a different hospital. Getting permission from the Ministry of Justice should take between 7 to 35 days. But some cases may go beyond this time.

When I can apply to the Mental Health Tribunal?

You can't apply in the first 6 months of the hospital order. But if the order is renewed, you can apply:

  • Once in the second 6 months
  • Once per year after that

It doesn't matter when the hearing takes place. It's the date of the application that must be within these periods. The hearing should take place within 4 months of your application.

See our pages on leaving hospital for more information about the Mental Health Tribunal.

When must the Mental Health Tribunal discharge me?

The Mental Health Tribunal must discharge you if:

  • They don't think you have a mental disorder that requires you to be treated in hospital
  • They don't think it's necessary to get treatment for your health or safety, or to protect others
  • Appropriate treatment for you isn’t available

Once you're discharged from section 37/41, you'll be eligible for free section 117 aftercare.

What are conditional discharge and absolute discharge?

The Mental Health Tribunal can give you a conditional discharge or an absolute discharge.

Conditional discharge

A conditional discharge means that you’ll have to do certain things after being discharged. You may get recalled to hospital if you don’t do these things, such as:

  • Meet with professionals
  • Live at a particular place
  • Take medication

If you’re conditionally discharged, you can apply to the tribunal for an absolute discharge. You can apply:

  • 1 year after your conditional discharge
  • Every 2 years after that

Absolute discharge

In an absolute discharge, you don't have to follow any conditions. You also don't have to engage with mental health services if you don't want to.

If there are concerns about your mental health after discharge, you would need to be assessed again, like anyone else.

Can I appeal a section 37/41 hospital order?

You may be able to appeal the court's decision to give you a hospital order instead of another outcome. For example, a prison sentence.

To appeal a Crown Court decision, you can apply to the Crown Court or the Court of Appeal.

This information was published in April 2024. We'll revise it in 2027.

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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