10th October 2017
Hospital Orders With Restrictions - Section 37/41 of the Mental Health Act 1983 - Guide
What is a Section 37/41?
Section 37 is a Hospital Order made by either the Magistrates of Crown Court requiring a person’s detention in hospital. Section 41 is a Court Order which prevents a person from being transferred to a different hospital, granted leave or discharged without the Secretary of State for Justice being consulted and is made if the court considers it necessary to protect the public from serious harm.
The section is often referred to as a Hospital Order with Restrictions.
Anybody who is convicted of an imprisonable offence (other than murders and other offences where the sentence is fixed by law) and the Magistrates or Judge consider the most suitable option is for the person to go to hospital can receive a Section 37/41. There does not have to be a link between the perceived mental disorder and the offence for which the person is brought before the Court.
How Long Does It Last?
Section 41 is usually made without a time limit. This means that neither the hospital order nor the restriction order gets renewed but continues indefinitely.
Where there is a Section 41 order without a time limit, it is not possible to have the restriction removed from the order.
How Does A Person Come Off Section 37/41?
A person can be discharged, conditionally or absolutely, in the following ways:
- The patient responsible clinician can discharge them, but only with the consent of the Secretary of State for Justice.
- The Mental Health Tribunal can discharge the patient, either immediately or on a set date and the consent of the Secretary of State for Justice is not needed. This is the most common route to discharge. The Tribunal is an in-depth review of the case carried out by an independent body consisting of a lawyer, psychiatrist and a representative of the public.
Usually the patient is first discharged from hospital into the community but with conditions attached (“conditionally discharged”) and then later to be “absolutely discharged” so that no further conditions apply.
Being conditionally discharged usually means that the person is not required to stay in hospital and lives in the community comes with a number of conditions. These are usually to continue to take any medication the person was on in hospital (but this can only be with the person's consent), to live at a specified address and to attend appointments with the multi-disciplinary team. If the person were suffering from a mental disorder and required treatment in hospital at a later date, they could be recalled to hospital for this purpose by the Secretary of State for Justice. Absolute discharge means that the person is taken off the order, without any conditions attached and can no longer be recalled by the Home Secretary.
Mental Health Tribunal
In addition to discharging the person the Mental Health Tribunal can make non-binding recommendations about other aspects of the person’s case. The Tribunal is not required to consider whether or not to make recommendations because they are not binding. There is no way to force the Tribunal to consider evidence about whether a recommendation should be made. Even if recommendations are made there is no way to ensure that they are acted on.
Leave From The Hospital Grounds
A person detained under this section may not leave the hospital grounds without the permission of the Secretary of State for Justice, even for a short period of time.
The leave is time restricted and can be subject to conditions such as being accompanied by a nurse. If the time limits or restrictions are not kept the person can be brought back to hospital, by the police if necessary.
It is up to the clinical team to make decisions about leave within the hospital grounds.
A person detained under this section can be given medication against their wishes for the first 3 months from when medication was first given. Thereafter, except in emergency, if the person still does not consent to medication, the opinion of a second doctor must be sought.
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