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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.

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

Absolute discharge

In an absolute discharge, you don't have to follow any conditions and 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 then you would need to be assessed again like anyone else.

Can I appeal the hospital order?

Yes, the process is the same as appealing a section 37 hospital order.

< Section 37 Section 47 >

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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