Section 37/41 of the Mental Health Act

This section looks at section 37/41 of the Mental Health Act. It looks at the professionals you might come across in hospital, when and how the courts use this section. It explains what your rights are during this section and what could happen afterwards.

Overview

Hospital order given by a Crown Court

  • The Mental Health Act is the law that professionals use to bring you to hospital for treatment. This is also called being ‘sectioned’.
  • Criminal courts can use section 37 if they think you should be in hospital, instead of prison. Section 41 is a restriction order. The Crown Court can add this order to a section 37 if they think you are a risk to the public.
  • You can appeal to the Court of Appeal if you don’t agree with this sentence. You need to appeal within a certain time frame, so you should get legal advice from a solicitor.
  • You can appeal to a First-tier Tribunal (FtT).
  • You can appeal to the hospital managers. But the Ministry of Justice can block their decision.
  • The hospital can treat you without your permission for up to 3 months.
  • When you are discharged, you can get free aftercare under section 117 of the Mental Health Act.

Hospital Professionals

What professionals might I come across in hospital?

There are different professionals that might be involved in your care while you are in hospital under the Mental Health Act. We talk about the following professionals in this section.

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 they look at whether your views and rights have been considered.

Secretary of State for Justice: they are involved in your care if you are under a restriction order (section 41 or 49 of the Mental Health Act). They decide things like whether you can move from prison to hospital, or from hospital to prison. Your Responsible Clinician needs to get permission from them before letting you leave hospital. In practice, this role is managed by a special department in the Ministry of Justice.

Use of section

When do the courts use this section?

Criminal courts use a section 37 when:

  • you have a mental illness that needs treatment in hospital, and 
  • it is the best thing for you, given the circumstances of your case.

Courts can only use a section 37 in the following situations.

  • You have been found you guilty of a crime you can go to prison for. This is also called being ‘convicted’.
  • The court agrees you did the act you are accused ofbut decides not to convict you.
  • The court agrees you did the act you are accused of, but thinks you are too unwell to understand the pleas of ‘guilty’ or ‘not guilty’. This is known as being unfit to plead.

A section 41 restriction order can be added to a section 37. It is then called a section 37/41. Only a judge in a Crown Court can do this. They will do this if they think you are a risk to the public.

The restriction order means that there are restrictions on both you and your Responsible Clinician (RC). One restriction is that your RC needs to get permission from the Secretary of State for Justice to discharge you.

You can find more information about ‘Section 37’ (without a restriction order) by clicking here.

How do the courts use this section?

To put you on a section 37, 2 doctors need to assess you, and agree that you have a mental illness that means you should be in hospital. One of these doctors should be from the hospital where you will be staying.

Only a Crown Court can make a section 41 restriction order. A magistrates’ court can’t make the order. But they can pass the case to the Crown Court to make it.

Before a judge can give a restriction order one of the doctors who assessed you must speak in court. This is to give evidence about your condition.

The managers of the hospital should find you a bed within 28 days. If they don’t find you a bed within 28 days, they have to do the assessment again.

You might have to wait in prison until a bed is available. Some prisons have healthcare units where you could stay.

You will stay in a secure hospital. There are 3 types of secure hospitals:

  • low,
  • medium, or
  • high security.

The judge will decide what level of security you need.

You can find more information about ‘Healthcare in Prison’ by clicking here.

Rights

How long will I be on this section?

If you were given a section 37/41 before 2007, it may have a time limit.

Since 2007, a section 37/41 doesn’t have a time limit. This means the section doesn’t have a fixed end date and doesn’t need to be renewed. But you can appeal your section. There is more information about this below.

What are my rights?

Can I appeal the section straightaway?

If you don’t think the court should have given you a section 37/41, you can appeal to the Court of Appeal. You must do this within 28 days of the court making the order.

It is important to get legal advice before you appeal. Your solicitor will be able to help.

Can I appeal to the hospital managers?

You can ask the hospital managers to discharge you. But they can only do this if the Secretary of State for Justice agrees.

Can I appeal to a Tribunal?

You can appeal to a First-tier Tribunal after you have been in hospital for 6 months. And then once every year after that.

The Tribunal can give you an absolute or a conditional discharge.

If you are given a conditional discharge, you will have to stick to certain conditions to stay in the community. The Secretary of State can change the conditions of your discharge. A conditional discharge is different to what is known as a Community Treatment Order (CTO).

The Secretary of State doesn’t have to approve an absolute discharge.

Can I get help to appeal?

You can ask hospital staff for a list of mental health solicitors who will be able to help you to appeal to the Tribunal. People in hospital under the Mental Health Act get legal aid to pay for solicitors for Tribunals.

Who else can give me advice about my rights?

You can speak to an Independent Mental Health Advocate (IMHA). You can do this if you want information or you are unhappy about your care and treatment.

An IMHA can help you to:

  • be involved in decisions about your care and treatment, and
  • understand your rights.

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, and
  • represent you by speaking or writing on your behalf.

Hospital staff should tell you about the IMHA service at your hospital.

What information should I be given?

As soon as possible after you are put on this section you should be given information on:

  • how the Mental Health Act applies to you,
  • your right to appeal to tribunal,
  • complaints, advocacy, and legal advice,
  • safeguarding, and
  • the role of the Care Quality Commission (CQC) in investigating complaints about professionals’ use of the Mental Health Act.

You must be given this information:

  • verbally and in writing, and
  • in a format and language you understand.

Can I complain if I am treated badly?

You can complain if you are unhappy with the way you are treated in hospital.

An IMHA can help you to complain.

You can ask a member of hospital staff for a copy of the complaints policy. If you’re not happy with the hospital’s response to your complaint, you can complain to the Care Quality Commission (CQC). Their contact details are in the Useful Contacts section at the end of this section.

Can I have visitors and contact people?

You generally have the right to:

  • see anyone you want to see,
  • see your visitors in private, and
  • contact people by phone or in writing.

You should be encouraged to have visitors. And visits should be made as easy and comfortable as possible for you and your visitors.

Sometimes your RC can stop a visitor seeing you. This is usually if your RC thinks your visitor will:

  • have a bad effect on your wellbeing or mental health, or
  • be disruptive and a risk to security.

If your RC stops a visitor from seeing you, they should explain their decision:

  • verbally, and
  • in writing.

If your RC stops you having visitors without there being a good reason for this, it may be a breach of your human rights.

You can ask an IMHA to:

  • explain your rights to you, and
  • help you to appeal the RC’s decision.

Where can I get more information?

You can find more information about:

  • Advocacy by clicking here.
  • Complaints by clicking here.
  • Legal advice by clicking here.

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

Doctors can treat you for the first 3 months, even if you don’t want it.

During this time, the hospital should still involve you in decisions about your treatment. But they can continue to treat you if you refuse the treatment. Or if you don’t have the mental capacity to give your consent.

After 3 months, your Responsible Clinician (RC) has to get permission from an independent doctor to treat you without your consent. The doctor is called a Second Opinion Appointed Doctor (SOAD). The treatment will only continue if the SOAD agrees you should have it.

Before they make their decision, the SOAD should visit you.

What about ECT?

Some treatments can’t be given to you without your consent, even if a SOAD agrees. This includes electroconvulsive therapy (ECT). A doctor can only give you ECT without your consent, if it’s immediately necessary to:

  • save your life, or
  • stop your mental health getting much worse. This only applies if the ECT doesn’t have negative side effects that can’t be reversed.

What if I don’t have mental capacity?

If you don’t have the mental capacity to consent to ECT, your RC can use it if a SOAD agrees that it’s the right treatment for you.

But your RC can’t give you ECT if you have made an advance decision saying that you don’t want ECT. An advance decision is a document you write when you have mental capacity to refuse specific medical treatments in the future.

You should speak to your nurse or RC if you are unhappy with your treatment.

Who can help me to understand my rights?

You can speak to an Independent Mental Health Advocate (IMHA). They can help you to raise any issues you have with your care and treatment. 

You can find more information about:

  • Advocacy by clicking here.
  • Electroconvulsive therapy (ECT) by clicking here.
  • Mental capacity and mental illness by clicking here.
  • Planning your future care by clicking here.

Welfare benefits, discharge and aftercare

Can I claim 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’ by clicking here.

Who can discharge me and what might happen?

A First-tier Tribunal (FtT) or the Secretary of State for Justice can discharge you from Section 37/41.

The hospital managers and your Responsible Clinician (RC) can also discharge you. But only if they have permission from the Secretary of State.

You might get a conditional or an absolute discharge. If you are given a conditional discharge, you will have to stick to certain conditions to stay in the community. If you break these conditions, they can make you go back to hospital.

You can apply for absolute discharge if things go well in the community. This means you would not need to meet any conditions anymore. You can apply to the FtT for absolute discharge one year after your conditional discharge. If you are not successful, you can then apply every 2 years after that.

If you get a conditional discharge, you can still get free legal help through the legal aid scheme to apply to Tribunal.

What sort of aftercare could I get?

Section 117 of the Mental Health Act says that the NHS and social services must give you free aftercare.

‘Aftercare’ can mean anything that:

  • meets a need you have because of the mental health condition that caused you to be detained, and
  • reduces the risk that your condition will deteriorate.

It can include things like social care, supported housing, and treatment.

You can find more information about ‘Section 117 aftercare’ by clicking here.

Employment

Do I have to tell employers that I have been on this section?

Sometimes you have to tell people about criminal convictions. For example, when you apply for a job. But you usually don’t have to tell anyone once your conviction is ‘spent’.

A section 37 hospital order becomes spent as soon as you are discharged from it. This applies whether or not you had a section 41 restriction order.

You can find more information about ‘Criminal convictions – When and how to tell others’ by clicking here.

Further Reading and More Information

You can find more information about:

  • Complaints about Court by clicking here.
  • Criminal Courts and Mental Health by clicking here.
  • Mental Health Act by clicking here.
  • Legal Advice by clicking here.
  • Section 37 by clicking here.

Or call us 0121 522 7007 and ask for the information to be sent to you.

Care Quality Commission (CQC)

They investigate complaints about how professionals use their powers and
carry out their duties under the Mental Health Act.

Telephone: 03000 616 161 (option 1)
Address: CQC Mental Health Act, Citygate, Gallowgate, Newcastle-uponTyne, NE1 4PA
Website: www.cqc.org.uk/contact-us/how-complain/complain-about-use-mental-health-act

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