Nigel Turner's HyperGUIDE to the Mental Health Act

Hospital Orders Made by the Courts

Section 37

Summary

This Section allows a Court to send a person to hospital for treatment (or to make the person subject to Guardianship), when otherwise the outcome might have been a prison sentence. The Order is instead of imprisonment, a fine, or probation.

Conditions

The Court has to be satisfied:

• that the person has at least one of the four types of mental disorder, on the basis of evidence supplied by two doctors (with both doctors agreeing on at least one of the types) and
• that the mental disorder is of a nature or degree which makes it appropriate for the person to be detained in hospital for medical treatment (and, in the case of psychopathic disorder or mental imapirment, that the treatment is likely to alleviate or prevent a deterioration of the person's condition) and
• that making a Section 37 Order is most suitable way of dealing with the person, bearing in mind all relevant matters and
• that a specific hospital is willing and able to admit the person within 28 days.

Circumstances

The person concerned:

• will have been convicted by a Crown Court of an offence which could be punished with imprisonment (except in the case of murder, where the Court has to impose a sentence of life imprisonment in all cases) or
• will have been convicted by a Magistrates Court of an offence which could be punished with imprisonment or
• may not have been convicted, but may be before a Magistrates Court charged with an offence which could lead to imprisonment if the person were convicted. Without convicting the accused person, the Court can nevertheless make a Hospital Order under Section 37 if:
  
  • the person has mental illness or severe mental impairment (the other two forms of mental disorder by themselves do not qualify) and
  • the Court is satisfied that that the person did what they are accused of doing.

Duration

The initial period is 6 months, beginning on the date of the Order. The Order can be renewed under Section 20, for 6 months, and then annually.

Notes

A Section 37 Hospital Order made by a Crown Court can, in some circumstances, be made subject to Restrictions on discharge. Otherwise, once in place, it is very like Section 3, except that:

• the Nearest Relative cannot discharge the patient
• an appeal cannot be made to the Mental Health Review Tribunal during the first six months.

At least one of the doctors giving evidence to the Court must be approved under Section 12.

Guardianship Under Section 37

Section 37 also allows a Court to place someone under Guardianship. The arrangements are in essence the same as for a Hospital Order, with appropriate amendments. In particular, the Court must be satisfied that:

• the person's mental disorder is of a nature or degree which warrants Guardianship being used
• the the local social services authority, or other person named, is prepared to act as guardian.

Interim Orders under Section 38

Prior to deciding whether to make a Hospital Order under Section 37 or whether to deal with an offender in some other way, a court may decide to make an inertim - or temporary - Hospital Order. The person concerned must have been convicted of an offence (other than murder) for which imprisonment is a possible penalty, and the Court must be satisfied that:

• the offender has one of the four forms of mental disorder
• there is reason to suppose that it may be appropriate for a Section 37 Hospital Order to be made
• that a specific hospital will admit the person within 28 days.

The person remains under the control of the Court. He/she cannot be discharged under Section 23 and has no rights of appeal.