Nigel Turner's HyperGUIDE to the Mental Health Act

Section 41: Restriction Orders

Summary

Where a Crown Court makes a Section 37 Hospital Order, it may also impose restrictions on the patient's discharge. In addition to certain limitations inherent in Section 37 (the Nearest Relative cannot discharge, and there can be no appeal to the Mental Health Review Tribunal in the first 6 months), the Restrictions are:

leave may only be granted with the agreement of the Secretary of State (in practice, the Home Office) and the Home Office, in addition to the Responsible Medical Officer, can recall the person from leave.
transfers require the Home Office's agreement
discharge under Section 23 requires the Home Office's agreement.

Circumstances

The person must have been convicted of an offence for which imprisonment is a possible penalty.

Conditions

The Court must be satisfied that a Restriction Order is necessary:

for the protection of the public from serious harm

.... bearing in mind:

the nature of the offence
the person's criminal history
the risk of the person committing further offences if allowed to go free.

Duration

The duration of the Restriction Order, and associated Hospital Order, is determined by the Court and is often indefinite. When a Restriction Order is in place, the Hospital Order does not periodically expire, and therefore does not require renewing under Section 20.

Where someone is subject to a Restriction Order, the Responsible Medical Officer must provide the Home Office with a report on the patient's progress, every 12 months (or more frequently if the Home Office requests this). The Secretary of State / Home Office may:

end the Restriction Order (but leave the associated Hospital Order in force)
absolutely discharge the patient, in which case both the Restriction Order and the Hospital Order come to an end
make a conditional discharge, in which case the person is discharged from hospital, subject to conditions, and can be recalled to hospital.

Someone on a Restriction Order can appeal to the Mental Health Review Tribunal which has similar powers as those of the Home Office listed above.

Notes

A Restriction Order cannot be made by a Magistrates Court, but once someone is convicted, a Magistrates Court can refer the case to the Crown Court with a view to a Restriction Order being made.

Overview page. Contents page. Introduction page.

This page last revised 21 April 1996
While every effort has been made to ensure the accuracy and reliability of information in these pages, they are not intended to be relied upon as an authoritative statement of the law. The author cannot accept liability for errors or omissions.