Section 37 and 41

Section 37/41 Mental Health Act 1983

What is this?

An order has been made by the Magistrates Court or Crown Court that a person convicted of an imprisonable offence needs to be treated in hospital for a mental disorder they are suffering from, in the interests of their own health and safety or for the protection of other people.

The person may not be transferred to another hospital, be given leave or be discharged without the consent of the Ministry of Justice (other than being discharged by a tribunal).

The order usually doesn’t have a time limit so it can not lapse.

A person can be treated without their consent. If they continue to not consent after 3 months, a second opinion must be obtained on their treatment.

Getting discharged

The treating doctor can seek the Ministry of Justices’ authority to discharge a person when they consider it appropriate.

The person can apply to the mental health tribunal themselves, after the first 6 months of the order, then after the first year and every year after that for the length of the order.

A person who is discharged would ordinarily be conditionally discharged. This means that they are discharged from hospital subject to certain conditions. The person can be recalled to hospital by the Secretary of State if those conditions are not complied with.

If the person has been conditionally discharged, they might want to apply for an absolute discharge. This means coming off the order completely. The person’s psychiatrist can apply to the Ministry of Justice for an absolute discharge or the person can apply to the tribunal themselves, once after the first year of being on a conditional discharge, then once every two years.


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