If you are convicted of a crime, the courts can send you to hospital instead of prison. They can do this if you have a mental disorder and need hospital treatment, under Section 37 of the Mental Health Act 1983. This page looks at when and how the courts use this section. It explains what your rights are if you are in hospital and what could happen afterwards.
- The criminal courts can use section 37 of The Mental Health Act if they think you should be in hospital instead of prison. This is also called a ‘hospital order’.
- You must have a mental disorder and need treatment in hospital and have been convicted of a crime that is punishable with imprisonment.
- It is a sentence and does not have a fixed end date.
- You can appeal to the courts if you do not agree with this sentence. You need to appeal in a certain time period. You can get legal advice from a solicitor.
- When you are in hospital you can also appeal to the hospital managers and the First-tier Tribunal (FTT).
- The hospital can treat you without your permission for up to 3 months.
- Your Responsible Clinician (RC), hospital managers or a tribunal can discharge you from this section.
- When you are discharged, you get free aftercare services under section 117 of the Mental Health Act.
About Section 37
When do the courts use this section?
A criminal court might send you to hospital instead of prison. They have the power to do this under section 37 of The Mental Health Act
A section 37 Mental Health Act detention is known as a hospital order. It is different to a prison sentence. This means the court send you to hospital instead of prison.
The courts will issue a hospital order under Section 37 of The Mental Health Act (MHA) if:
- you have been convicted of a crime that is punishable with imprisonment
- you have a mental disorder
- the court thinks you need to be in hospital instead of prison
You need to have a mental illness that needs treatment in hospital.
In some cases, the courts can use this section without convicting you. The court may decide that you are too unwell to understand the pleas of guilty or not guilty. This is known as being unfit to plead. If so, they can use section 37 if they decide you did what you have been charged with.
If the court issues a hospital order they can’t also:
- give a sentence of imprisonment
- impose a fine
- make a community order, a youth rehabilitation order, or a referral order
If the court feels that you are a risk to the public because of the offence they could use section 37/41 of the Mental Health Act. This adds more restrictions onto the hospital order.
How do the courts use this section?
The courts can use section 37 if:
- two doctors have assessed you
- they think you need to be in hospital for treatment for a mental disorder
- the court thinks a hospital order is the most appropriate option
Someone called an Approved Clinician must find you a hospital bed within 28 days. If they do not find you a bed in 28 days they have to do the assessment again.
You might have to wait in prison for a bed if there is none available. Some prisons have healthcare units where you might be able to stay.
The court might decide if you need to be in a secure hospital. There are 3 main types of secure hospital, low, medium or high security.
How long will I be on section 37?
Your responsible clinician (RC) is the psychiatrist in charge of your care in hospital.
On section 37 you will be in hospital:
- for up to 6 months at first
- for up to a further 6 months if your RC renews the order
- for 12 months at a time after that if your RC renews the order again
What professionals might I meet in hospital?
There are different professionals that might be involved in your care while you are detained under the Mental Health Act. We talk about some of these professionals on this page:
Approved Clinician (AC)
An AC is a mental health professional who is allowed to use the Mental Health Act. A doctor, psychologist, nurse, occupational therapist and social worker can be ACs. They are trained to assess you for mental illness.
Responsible Clinician (RC)
The RC is responsible for your care or treatment. The RC decides if you can leave hospital or they can renew your section. A RC is an Approved Clinician with more training.
Second Opinion Appointed Doctor (SOAD)
A SOAD is an independent doctor who can make decisions about your treatment under the Mental Health Act. They decide if you should continue getting treatment and if your views and rights have been taken into account.
Approved Mental Health Professional (AMHP)
An AMHP is a mental health professional who is trained to use the Mental Health Act. This can be a psychologist, nurse, social worker or occupational therapist. They can be involved in bringing you to hospital under a section of the Mental Health Act.
What are my rights while on Section 37?
Can I appeal the hospital order?
If you think you shouldn’t be in hospital you have the right to appeal to:
- the court
- the Hospital Managers
- a tribunal
Appealing to the court
If you do not think the court should have given you a hospital order you can appeal. If the Magistrates’ Court gave the hospital order you need to:
- appeal to the Crown Court
- do this within 21 days of the court making the order
If the Crown Court made the hospital order, you need to:
- appeal to the Court of Appeal
- do this within 21 days of the court making the order
You can try to get legal advice before appealing.
Appealing to the Hospital Managers
Any time while you are in hospital you can appeal to the Hospital Managers for discharge. Three managers with mental health experience will look at your case. They will decide if you can be discharged or if you have to remain in hospital.
Appealing to the tribunal
The First-tier Tribunal is an independent panel that can discharge you from the Mental Health Act. The tribunal hearings usually take place at the hospital. The tribunal will decide if you can be discharged or if you have to remain in hospital.
You can appeal to a tribunal:
- after the first six months of being in hospital
- every year after that
Can I get an advocate?
You have the right under The Mental Health Act to see an Independent Mental Health Advocate (IMHA).
An IMHA can help you understand:
- your rights under the Mental Health Act
- the rights that other people have in relation to the Act
- the parts of the Act that apply to you
- any conditions or restrictions to which you are subject
- any medical treatment you are receiving and the reasons for that treatment
With your agreement, the IMHA can:
- meet with you in private
- look at your medical and social services records
- speak to the people treating you
- go with you to meetings with the people treating you
- represent you by speaking or writing on your behalf
An IMHA can help you if you are unhappy about any part of your care and treatment while in hospital.
Hospital staff can tell you about the IMHA service at your hospital.
You can usually find details of the local IMHA service by typing the following into an internet search engine, “Independent mental health advocacy [name of borough, county, town or city].”
You can contact the IMHA service directly if you want to.
What is a nearest relative?
The person known as your ‘nearest relative’ can help you protect your rights. The ‘nearest relative’ is a legal term used in the Mental Health Act. It is not the same as your next of kin. Your nearest relative has limited rights when you are on a hospital order compared to other Mental Health Act detentions. Your nearest relative can apply to the tribunal to discharge you. They can do this in the period between 6 and 12 months after the making of the hospital order. They can also apply once in every following year.
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:
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 can treat you even if you don’t want it:
- for 3 months
- after that only once they have got a second opinion.
An independent doctor will visit you to give a second opinion. This doctor is called a second opinion appointed doctor (SOAD). If the SOAD agrees you need treatment, this can continue even if you don’t want it.
What about Electroconvulsive therapy (ECT)?
Doctors cannot give you electroconvulsive therapy (ECT) unless:
- you agree
- you lack mental capacity and a SOAD agrees that you need it
- it is an emergency
You can find more information about ‘Electroconvulsive therapy (ECT)’ at www.rethink.org.
What can I do if I am unhappy about my treatment?
If you are unhappy with your treatment you can try the following.
- Speak to your responsible clinician – this is the psychiatrist in charge of your care
- Speak to your named nurse
- Speak to an Independent Mental Health Advocate (IMHA) - they can help raise any issues you have about your care and treatment
- Make a complaint
Who can discharge me and what might happen?
You can be discharged from Section 37 by:
- your responsible clinician – who is the psychiatrist in charge of your care
- the hospital managers
- a tribunal
- your nearest relative
Please see Section 4 of this factsheet for more information on discharge by the hospital managers, the tribunal or your nearest relative.
What is a community treatment order (CTO)?
Your responsible clinician (RC) might think you need to be on a community treatment order (CTO).
A CTO is when you live in the community but you remain under The Mental Health Act.
Under a CTO you have to agree to certain conditions. This could include you getting medical treatment or taking certain medication. Your RC should make any conditions clear to you.
You cannot be treated without your permission on a CTO.
A CTO means that your RC can take you back to hospital if they feel:
- you need treatment in hospital again
- there is a risk of harm to you or other people if you are not taken back to a hospital
- you have not kept to your conditions.
When will my hospital order become ‘spent’?
Sometimes you have to tell people about criminal convictions. For example, when you apply for a job.
But once you are discharged from a hospital order you don’t have to tell potential employers or anyone else about it.
The hospital order becomes what is known as ‘spent’ as soon as you are discharged from it.
What sort of aftercare could I get?
When you leave hospital the NHS and Social Services must provide you with free aftercare services. They have to do this under section 117 of the Mental Health Act.
Aftercare services provided free of cost must:
- meet a need you have because of your mental health condition
- reduce the risk that your condition will deteriorate
This may include things such as therapies, services or social care.