What is a Hospital Order (Section 37)?

Discussing Section 37 of the Mental Health Act Hospital orders

What is a hospital order?

Simply put, a hospital order can be given by the criminal courts instead of a custodial sentence if the defendant has a mental disorder and requires treatment in hospital. The most common hospital order relates to section 37 of the Mental Health Act 1983, as amended in 2007. This can be given at sentencing at either magistrates or crown court.

Hospital Order (Section 37)

What is needed for a hospital order to be available?

  • The defendant must be convicted of an offence (other than murder)
  • This offence must be punishable by a custodial sentence
  • There must be sufficient evidence that they:
    • Are suffering from a mental disorder
    • Require treatment in hospital
  • Treatment must be available to the defendant at the point of sentencing

What is needed in the expert witness reports?

The court requires evidence from two registered medical practitioners that the defendant is suffering from a mental disorder of a nature or degree which makes it appropriate for them to be detained in hospital for treatment, and what treatment would be appropriate. At least one of the reports must confirm appropriate medical treatment is available.

Who decides what appropriate medical treatment is?

The court will generally rely on the opinion of the medical experts to decide what appropriate treatment would consist of. This may include medication, psychological interventions, and particular therapeutic environments.

Who finds the hospital bed?

This is generally the responsibility of the second medical expert. Unless they are recommending admission to their own service, a referral must be sent to the relevant gatekeepers of the hospital. This could be an NHS trust or a provider collaborative depending on the area. For treatment to be considered available, the hospital must have agreed the admission and have an available bed within 28 days of sentencing.

What is a forensic provider collaborative?

Provider collaboratives are partnership arrangements between health providers. They can include NHS trusts and private organisations. Forensic provider collaboratives will be responsible for gatekeeping all admissions to secure hospitals in their area and may wish to conduct their own assessment of the defendant before admission will be agreed.

How long is there between a hospital order being made and admission to hospital?

In general, the hospital bed must be available within 28 days from the point of sentencing. However, if a defendant is in the community prior to sentencing, the judge may require that they are transferred to hospital immediately following the hospital order being made.

Do the medical experts need to go to court?

In most cases, the medical experts will not have to give evidence in person for a hospital order to be made at sentencing. However, the court may request this in particularly complicated cases. For a restriction order under section 41 of the Mental Health Act 1983 (as amended in 2007) to be made, one expert making the recommendation must give evidence in person.

Section 41 restriction order

This order “adds” certain restrictions to a section 37 hospital order. Any leave from the hospital must be approved by the Ministry of Justice. It can only be applied by a judge in crown court. At sentencing the judge will bear in mind:

  • The nature of the offence
  • The antecedents of the offender
  • The risk of committing further offences if set at large
  • That it is necessary for the protection of the public from serious harm

Other hospital orders

Section 38 MHA (the “interim hospital order”)

This hospital order enables a period of assessment to determine whether a convicted offender has a mental disorder that would make a hospital order appropriate. It lasts for a maximum of 12 weeks but can be extended up to 12 months, at which point the case must return to court for sentencing.

Section 45A MHA (the “hybrid order”)

For expert witnesses, the criteria for this hospital order are similar to those for section 37 MHA. However, the judge can issue a hybrid order if they decide to give a prison sentence alongside a hospital order. For more information on hybrid orders, click the link below:

*hybrid orders

Can a judge impose/reject a hospital order or a restriction order?

The sentencing decision is ultimately for the judge and so a hospital order may not be given even if this is the recommendation of two medical practitioners.

The sentencing judge may impose restrictions even if this is contrary to the medical recommendations (see, for instance, R v Parkins [2012]).

How long does a hospital order last?

Although a section 37 hospital order must be regularly renewed, there is no limit to how many times. Patients can be discharged by the responsible clinician or first-tier mental health tribunal.

Since the 2007 amendments to the Mental Health Act 1983, restriction orders under section 41 are indefinite. When patients are conditionally discharged from hospital, these restrictions continue under section 42 of the Act. An “absolute discharge” can be given by the secretary of state or tribunal. For more information on the process of achieving an absolute discharge, please click below:

*absolute discharge

This blog has been written by Dr Alexandra Blackman, Consultant Forensic Psychiatrist.

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Dr Alex Blackman is a consultant forensic psychiatrist who is experienced in providing expert evidence in criminal, civil and immigration proceedings.

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