Section 35 of the Mental Health Act

Overview

• The Mental Health Act is the law that mental health professionals use to detain you in hospital for assessment, treatment or both. If you are detained under the Act, it is sometimes known as being ‘sectioned’.
• The criminal courts can send you to hospital using section 35 of the Mental Health Act. They can do this if they want more information about your mental health.
• The courts use section 35 when they decide you need an assessment in hospital.
• They can use this section at any point during your court case.
• A medical professional will write a report about your mental health and will recommend what the court should do.
• You will only be in hospital up to 28 days. But this can be extended up to a maximum of 12 weeks.
• If the court think your report can be done in prison, they can remand you there instead of to hospital.
• Hospital staff can’t treat you against your will if you are on section 35.
• Section 35 can only be used if you can be sent to prison for the offence you’ve been charged with.

Professionals

What professionals might I come across in hospital?

There are different professionals that might be involved in your care while you’re detained under the Mental Health Act. We talk about some of these professionals in this section.

Approved Clinician (AC): an AC is a mental health professional who can assess or treat you under the Mental Health Act. Doctors, psychologists, nurses, occupational therapists and social workers can be ACs. They are trained to assess you for mental illness.

Responsible Clinician (RC): the RC is responsible for your overall care or treatment. The RC decides if you can leave hospital or they can renew your section. This will be based on information from different healthcare professionals who have worked with you. An RC is an Approved Clinician with more training. RCs are usually psychiatrists.

How is a section 35 used?

When is this section used?

The Magistrates’ court or Crown Court might think you have a mental illness. They can send you to hospital to have a medical report if they want more information. The Magistrates’ court can use this section if you’ve been convicted of a crime. The Crown Court can use this section at any time in your court case.

Section 35 can only be used if you can be sent to prison for the offence you’ve been charged with.

In hospital an Approved Clinician (AC) writes the report. They should assess you. They will give the court their opinion about your mental health.

The report should:

• directly answer the court’s questions, and
• be written in a language that a person who’s not legally trained can understand.

The report will include:

• a summary of your background,
• any concerns there are for you or others,
• your mental health history and current situation,
• if there is a chance that you will be convicted again,
• the future safety of you and others,
• how others see the danger of your situation, and
• options for treatment and what medical help you could have.

The AC may think you should stay in hospital under the Mental Health Act for further assessment or treatment. Or that you need further support in court because of your mental health.

If the AC feels you need to stay in hospital, they need to find a hospital bed for you. And they need to make sure that you can be admitted within 7 days of their decision. The court has to be happy this can be done within the timescale.

How can this section be used?

The court will decide if they need a medical report. If they think you should be in hospital while waiting for the report, they will use section 35. If they don’t think you need to be in hospital, they could send you to prison on remand.

A psychiatrist can assess you there. The court could also let a psychiatrist assess you in the community on bail. If they grant you bail the court will give you conditions that you need to meet, such as living at a certain address.

Duration

How long will I be on this section?

The Approved Clinician can keep you in hospital for up to 28 days while they do the report.

Your Responsible Clinician (RC) might need more time to complete the report. If they do, the court can extend the section up to 12 weeks at the most.

My rights

What are my rights?

Can I appeal to the tribunal?

You can’t appeal to the Mental Health Tribunal if you are detained in hospital under section 35.

But you can pay for an independent doctor to assess you. The independent doctor might think you don’t need to be in hospital under section 35. You can apply to the court and they might agree to end your stay in hospital under section 35.

You can ask the court to remand you to prison or to put you on bail instead. The court will decide what to do.

You can speak to a member of hospital staff, an advocate or your solicitor for advice.

Can I see an Independent Mental Health Advocate?

You can get support from an Independent Mental Health Advocate (IMHA).

An IMHA can help you take part in decisions about your care and treatment. And can tell you your rights. Hospital staff should tell you about the IMHA service at your hospital. You can ask them about it.

You can find more information about ‘Advocacy’ by clicking here.

Will I be given information about my rights?

When you are first admitted to the mental health unit on a section 35. You should be given information on your rights whilst you are under section.

You should be given details about your rights if staff can physically restrain you whilst you are on this section.

Can I get welfare benefits?

You are still entitled to claim some welfare benefits. You have the same right to claim benefits as any other hospital patient.

You can find more information about ‘Going into hospital - money matters’ at www.rethink.org/advice-and-information/living-with-mental-illness/money-benefits-and-mental-health/

Where can I get further information?

The Equality and Human Rights Commission have published guides on your rights when detained under the Mental Health Act in England. You can download free copies of the guides here:

www.equalityhumanrights.com/en/publication-download/your-rights-when-detained-under-mental-health-act-england.

Please see ‘Download forensic introductory guide’ and ‘Download forensic full guide’ at the bottom of the page.

Can the doctor treat me if I don’t want it?

Doctors need your permission to give you treatment if you are on a section 35. They might be able to give you treatment without your consent if you lack mental capacity. But only if it’s in your best interests. If you lack mental capacity it means you don’t have the ability to make decisions for yourself.

You may be under ‘dual detention’. This means you may be on 2 sections. You could be under a section 2 as well as the section 35.

You can be under dual detention if there is a delay in your court date. But your doctors think you need treatment. If this is the case, they can treat you without your permission.

You can find more information about ‘Mental Health Act’ by clicking here.

Will I have to go back to court?

The court might need to extend your section 35 to allow doctors to finish the medical report.

If you have a solicitor to represent you, you don’t need to go to court for the hearing if you don’t want to. If you don’t have a solicitor, you will need to go to court.

You will need to go back to court when the section ends, so the court can decide the next steps.

When Section 35 ends

What might happen after this section?

After your section 35 ends 2 things could happen:

• Your RC says that you do not need to be in hospital. This means that your court case will carry on.
• Your RC says that you are unwell enough to be in hospital. This means that you will then be detained under sections 36 or 37.

Further reading

You can find more information about:

• Advocacy by clicking here.
• Criminal Courts and Mental Health by clicking here.
• The Mental Health Act by clicking here.
• Legal Advice by clicking here.
• Complaints about Court by clicking here.
• Section 36 by clicking here.
• Section 37 by clicking here.
• Section 37/41 by clicking here.