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.
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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. It might add them if it thinks that it's necessary for the protection of the public from serious harm.
When deciding whether to add section 41 restrictions, the Crown Court must consider:
- the seriousness of the offence 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?
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 will 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 can take a long time.
When I can apply to the Mental Health Tribunal?
The rules are the same as for a section 37 hospital order.
When must the Mental Health Tribunal discharge me?
The rules are the same as for a section 37 hospital order.
Once you are discharged from section 37/41, you will be eligible for free section 117 aftercare.
What is an absolute or conditional discharge?
The tribunal can give you a conditional discharge or an absolute discharge.
Conditional discharge
A conditional discharge is where you will have to do certain things after discharge and you might get recalled to hospital if you don't. Conditions could be to:
- meet with professionals
- live at a particular place
- take medication.
If you are conditionally discharged, you can apply to the tribunal for an absolute discharge. You can apply:
one year after your conditional discharge, then
every two years after that
Can I appeal the hospital order?
Yes, the process is the same as appealing a section 37 hospital order.
Mental Health Tribunal (MHT)
This is a special court that deals with cases relating to the Mental Health Act 1983. The Tribunal decides whether you can be discharged from your section. It can sometimes make recommendations about matters such as hospital leave, transfer to another hospital, guardianship and community treatment orders (CTOs).
The court is made of a panel, which normally includes:
- a legally qualified chairperson
- a ‘lay member’ who has appropriate experience and qualifications in the area of mental health
- an independent psychiatrist, who will speak to you and examine you before the tribunal hearing in certain circumstances, and when you request to see them
Where you see a reference to the Mental Health Tribunal in this guide, it means:
- First Tier Tribunal (Mental Health), if you live in England, or
- Mental Health Review Tribunal for Wales, if you live in Wales.
Responsible clinician (RC)
This is the mental health professional in charge of your care and treatment while you are sectioned under the Mental Health Act.
Certain decisions, such as applying for someone who is sectioned to go onto a community treatment order (CTO), can only be taken by the responsible clinician.
All responsible clinicians must be approved clinicians. They do not have to be a doctor, but in practice many of them are.
Visit our full listing of Legal TermsSection 17 leave
This is where your responsible clinician gives you permission to leave the ward or the hospital for short periods. They may ask you to keep to certain conditions, such as returning within a certain time.
Visit our full listing of Legal TermsCrown Court
This is one of the two types of criminal courts. It is the higher of the two courts, above the Magistrates' Court.
Visit our full listing of Legal TermsSection 117 aftercare
Some people who have been kept in hospital under the Mental Health Act can get free help and support after they leave hospital. The law that gives this right is section 117 of the Mental Health Act, and it is often referred to as 'section 117 aftercare'.
Health authorities and local social services have a legal duty to provide you with section 117 aftercare if:
- you've been detained under Mental Health Act sections 3, 37, 47 or 48, but have left hospital, or
- you're under a community treatment order (CTO).
This information was published in July 2018.
This page is currently under review. All content was accurate when published.
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