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.
Section 37/41 hospital order with restrictions
This page covers:
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
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.
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 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.
