MHA 1983 s35
Changes made by Mental Health Act 2007
- Mental disorder no longer split into separate classifications 3/11/08
- Responsible Clinician/Approved Clinician replaces Responsible Medical Officer 3/11/08
Any cases with a hyperlink to this legislation will automatically be added here. There may be other relevant cases without a hyperlink, so please check the mental health case law page.
- Cathleen Williams v Anthony Williams  EWCA Civ 197 — The twelve-week requirement under s35 Mental Health Act does not apply to s48(1) Family Law Act 1996 (both sections relate to remand for medical examination and report).
- R (M) v Kingston Crown Court  EWHC 2702 (Admin),  MHLO 50 — M had admitted to GBH but the Crown wanted to pursue GBH with intent, and the judge made an order under s35 (remand for report) to gather evidence about intent. (1) The purpose of an order under s35 was to inform the court of a defendant’s fitness to plead and his diagnosis, not to advance one party’s claim. (2) The judge’s misinterpretation of s35 was a jurisdictional error so the High Court was entitled (despite the limitation in s29(3) Senior Courts Act 1981) to quash the order made under it.
[The chapter/paragraph numbers which appear below (if any) refer to the 2008 versions of the Code of Practice and Reference Guide.]
- Reference Guide to the Mental Health Act 1983, 3. Remands to hospital
- Mental Health Act 1983 Code Of Practice for England, 33. Patients concerned with criminal proceedings
Remand to hospital for report on accused's mental condition
35.—(1) Subject to the provisions of this section, the Crown Court or a magistrates’ court may remand an accused person to a hospital specified by the court for a report on his mental condition.
(2) For the purposes of this section an accused person is—
- (a) in relation to the Crown Court, any person who is awaiting trial before the court for an offence punishable with imprisonment or who has been arraigned before the court for such an offence and has not yet been sentenced or otherwise dealt with for the offence on which he has been arraigned;
- (b) in relation to a magistrates’ court, any person who has been convicted by the court of an offence punishable on summary conviction with imprisonment and any person charged with such an offence if the court is satisfied that he did the act or made the omission charged or he has consented to the exercise by the court of the powers conferred by this section.
(3) Subject to subsection (4) below, the powers conferred by this section may be exercised if—
- (a) the court is satisfied, on the written or oral evidence of a registered medical practitioner, that there is reason to suspect that the accused person is suffering from [mental disorder]; and
- (b) the court is of the opinion that it would be impracticable for a report on his mental condition to be made if he were remanded on bail;
but those powers shall not be exercised by the Crown Court in respect of a person who has been convicted before the court if the sentence for the offence of which he has been convicted is fixed by law.
(4) The court shall not remand an accused person to a hospital under this section unless satisfied, on the written or oral evidence of the [approved clinician] who would be responsible for making the report or of some other person representing the managers of the hospital, that arrangements have been made for his admission to that hospital and for his admission to it within the period of seven days beginning with the date of the remand; and if the court is so satisfied it may, pending his admission, give directions for his conveyance to and detention in a place of safety.
(5) Where a court has remanded an accused person under this section it may further remand him if it appears to the court, on the written or oral evidence of the [approved clinician] responsible for making the report, that a further remand is necessary for completing the assessment of the accused person’s mental condition.
(6) The power of further remanding an accused person under this section may be exercised by the court without his being brought before the court if he is represented by [an authorised person who] is given an opportunity of being heard.
(7) An accused person shall not be remanded or further remanded under this section for more than 28 days at a time or for more than 12 weeks in all; and the court may at any time terminate the remand if it appears to the court that it is appropriate to do so.
(8) An accused person remanded to hospital under this section shall be entitled to obtain at his own expense an independent report on his mental condition from a registered medical practitioner [or approved clinician]chosen by him and to apply to the court on the basis of it for his remand to be terminated under subsection (7) above.
(9) Where an accused person is remanded under this section—
- (a) a constable or any other person directed to do so by the court shall convey the accused person to the hospital specified by the court within the period mentioned in subsection (4) above; and
- (b) the managers of the hospital shall admit him within that period and thereafter detain him in accordance with the provisions of this section.
(10) If an accused person absconds from a hospital to which he has been remanded under this section, or while being conveyed to or from that hospital, he may be arrested without warrant by any constable and shall, after being arrested, be brought as soon as practicable before the court that remanded him; and the court may thereupon terminate the remand and deal with him in any way in which it could have dealt with him if he had not been remanded under this section.
- Mental Health Act 2007 s1 & sch 1, s10; Mental Health Act 2007 (Commencement No.7 and Transitional Provisions) Order 2008 wef 3/11/08 Cite error: Invalid
<ref>tag; name "MHA" defined multiple times with different content
- Legal Services Act 2007 sch 21 para 54; Legal Services Act 2007 (Commencement No. 6, Transitory, Transitional and Saving Provisions) Order 2009 (1/1/10)