Section 37/41 - Hospital Orders with restrictions
If you are detained under Section 37/41 Mental Health Act 1983 (as amended) (MHA 1983) you have been convicted of an imprisonable offence (other than murder and certain other offences where the sentence is fixed by law) and you have been handed down a hospital order by either the Magistrates or Crown Court. The hospital order requires you to be detained in hospital for treatment rather than serving a custodial sentence in prison.
Section 41 adds further restrictions to your detention and can only be handed down by the Crown Court when it is considered necessary to protect the public from serious harm. This addition to the hospital order means you cannot be transferred to a different hospital, granted Section 17 leave or be discharged from hospital without the Secretary of State for Justice being consulted.
If you have been handed down a Section 37/41 hospital order with restrictions, this is an “indefinite” order which means that there is no time limit and there is no need for your doctor to renew the Section as it continues indefinitely until you are discharged by the Secretary of State for Justice or the Mental Health Tribunal.
You should be informed of your rights by a member of hospital staff as soon as possible into your admission. You have the right to:-
- Information about your section and the reasons for detention.
- Information about consent to treatment.
- Information about your rights of appeal to the Mental Health Tribunal.
- Information about how to contact a suitably qualified solicitor.
- Information on how to obtain the help and support of an Independent Mental Health Advocate (IMHA).
- Information about correspondence and visitors.
- Information on how to make a complaint.
- Information about safeguarding.
- Information about the Care Quality Commission.
Consent to Treatment
Medication can legally be given to you without your consent for the first 3 months of your admission to hospital. After 3 months, staff can only treat you without your consent if a ‘Second Opinion Approved Doctor’ (SOAD) approves the treatment unless it is an emergency. Staff can only give you some treatments, like electro-convulsive therapy (ECT), if certain criteria are met.
Discharge from Section
You can be discharged by:
- Your responsible clinician (doctor in hospital) can discharge you but only with the consent of the Secretary of State for Justice;
- The Tribunal without the consent of the Secretary of State for Justice.
Tribunal Procedure & Powers
You have one right to appeal to the Mental Health Tribunal during the second 6 months of your detention and then once a year. For example, if you were detained under Section 37/41 on 3 January, your first right of appeal period would begin on 3 July and would run up to 2 January. As the Section has no time limit, you would then have one right of appeal between 3 January and 2 January of each year until you are discharged from the Section.
Once you have submitted your application to the Tribunal, a Tribunal Hearing should take place within 12-14 weeks of the Tribunal Services receiving your application. Reports will be prepared by your doctor, your social worker/care coordinator and a nurse and these will be made available to you, the Tribunal Panel and the Ministry of Justice. The Ministry of Justice will provide their comments on your detention and provide a copy of your Police National Computer (PNC) record.
In the Tribunal Hearing, the Tribunal Panel will hear evidence from your doctor, your social worker/care coordinator and a nurse. You will also have the opportunity to provide evidence.
The Tribunal Panel has the power to discharge you from Section immediately, without conditions (absolute discharge) or with conditions (conditional discharge). They also have the power to defer a conditional discharge until the conditions can be met. They cannot defer to an exact future date. The Tribunal Panel can also make non-binding recommendations that you should be transferred to a different hospital or granted Section 17 leave. As the recommendations are non-binding, the Tribunal has no obligation to consider whether or not they should be made and there is no way to ensure they are acted on by your treating team even if they are made.
What can Biscoes Solicitors do?
- Meet with you promptly in hospital to advise you about your Section and your rights, including your right to appeal to the Tribunal to seek discharge from hospital/non-binding recommendations for transfer to another hospital or the granting of Section 17 leave.
- Advise you regarding consent to treatment issues.
- Review your Section papers and assess their legality.
- Submit an application to the Tribunal on your behalf.
- Contact your treating team to find out their plans for your admission.
- Attend Care Programme Approach (CPA) meetings and Section 117 aftercare meetings with you or on your behalf.
- If you have a Learning Disability, we can request Care and Treatment Reviews (CTRs) and attend them with you or on your behalf.
- Represent you in a Mental Health Tribunal Hearing.
- Advise you on your rights to aftercare under Section 117 MHA 1983.
India Jefferson-Grant is the Mental Health Law specialist in our Mental Health and Capacity Department and is a member of the Law Society’s Mental Health Accreditation Scheme having been independently assessed as an expert in Mental Health Law. If you have been detained under Section 37/41 MHA 1983 and need legal assistance, you can contact India on 02392 660 261 or IJefferson-Grant@biscoes-law.co.uk.
For further information or to speak to one of our experts, please get in touch