MHA 1983 s37
Changes made by Mental Health Act 2007
- Mental disorder no longer split into separate classifications 3/11/08
- Appropriate treatment test replaces treatability test and applies to all patients under long-term detention 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.
- AG's ref (nos 37, 38 and 65 of 2010) sub nom R v Khan  EWCA Crim 2880 — Sentencing case which includes an illustration of the principle that there is no presumption that a hospital order will be made as a consequence of the satisfaction of the conditions in s37(2). The court noted that 'there were recognised symptoms of a depressive illness which in Mrs Khan's case were absent or equivocal. She was sleeping well; she could concentrate; she had been fit to give evidence but declined to do so; she was selective in her submission to treatment. These features of Mrs Khan's illness were relevant to her ability to serve a sentence of imprisonment which, as the judge found, was richly deserved. This was not a case in respect of which it could be argued that Mrs Khan's mental condition had any causative influence upon her offending.'
- R (A) v Harrow Crown Court  EWHC 2020 (Admin) — The court order detaining the claimant under s37/41 MHA 1983 following a finding of unfitness to plead was irregular (as ultra vires s5 CPIA 1964 as then enacted) and was quashed; however, the detention was in accordance with a procedure prescribed by law and was not arbitrary, so there was no breach of Article 5.
- R (AL) v SSHD  EWCA Civ 2 — The Secretary of State's powers to continue the recall of a patient who had originally been detained following an acquittal of murder on grounds of insanity and pursuant to s 5(1)(a) of the 1964 Act, but was recalled pursuant to s 42(3) of the 1983 Act, differed from such powers as were granted under s 37 of the 1983 Act.
- R (B) v Ashworth Hospital Authority  UKHL 20 — A patient detained for treatment under the Mental Health Act 1983 could be treated compulsorily under s 63 of that Act for any disorder from which he suffered, and not only for the particular form of disorder from which he was classified as suffering under the application or order which authorised his detention.
- R (B) v Dr SS  EWCA Civ 28 — MENTAL HEALTH — Compulsory detention — Consent to treatment — Convicted rapist detained in secure mental hospital — Refusal to consent to treatment — Whether compulsory treatment in breach of human rights — Mental Health Act 1983 (c 20), s 58 — Human Rights Act 1998, Sch 1, Pt I, arts 3, 8, 14. The compulsory treatment of a mental patient under s58(3)(b) of the Mental Health Act 1983 did not infringe the patient’s human rights under arts 3, 8 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Provided such treatment was medically necessary, it was not necessary also to show that it was required to prevent the patient causing harm to himself or others.
- R (DB) v Nottingham Healthcare NHS Trust  EWCA Civ 1354 — A hospital order under s37 ceases to have effect if the offender is not admitted to the named hospital within 28 days; unless the offender is to be immediately conveyed from court to hospital, the "place of safety" power in s37(4) must be expressly exercised.
- R (Tagoe-Thompson) v The Hospital Managers of the Park Royal Centre  EWCA Civ 330 — Panel of three hospital managers must be unanimous in order to discharge patient.
- R v Matthews  EWCA Crim 1936 — The trial judge had wanted to impose a hospital order under s37 and restriction order under s41 but could not as no hospital bed was available, despite several adjournments; given the risk to the public, the judge had no alternative but to pass a sentence of imprisonment for public protection. The extension of time sought exceeded two years nine months. There was no merit in the application and accordingly the application for leave and the application to extend permission to apply out of time were refused.
- R v Rogerson  EWCA Crim 2099 — Although it was lawful to pass sentences of imprisonment and a hospital order under s37 at the same time, it was a matter of obvious impracticability for them both to be simultaneously carried out; the sentences of imprisonment were inappropriate and therefore quashed.
- R v Vowles; R (Vowles) v SSJ  EWCA Crim 45,  EWCA Civ 56,  MHLO 16 — "There are before the court: (1) Sitting as the Court of Appeal Criminal Division six cases where indeterminate sentences (either imprisonment for public protection (IPP) or a life sentence) had been passed between 1997 and 2008. Each specified a minimum term. In each case there was psychiatric evidence before the court with a view to a judge considering making a hospital order under MHA 1983 s37 as amended with a restriction under s41 of the same Act. The sentencing judge did not make such an order, but each was subsequently transferred to hospital under a transfer direction made by the Secretary of State under s47. (2) Sitting as the Court of Appeal Civil Division, a civil appeal in relation to a judicial review brought by the first of the appellants in the criminal appeals of the actions of the Secretary of State for Justice and the Parole Board relating to delay in the determination of her application for release from custody." In relation to the criminal aspect: in ..→
- Re C (Mental Patient: Habeas Corpus)  EWHC 243 (Admin) — The application for the issue of a writ of habeas corpus was premature and without any prospect of success; the proper course was to judicially review the Tribunal decision
- Reid v Secretary of State for Scotland  UKHL 43 — (1) Treatability test is part of admission criteria for psychopathic disorder, so entitled to discharge when it is not met; definition of treatment is wide and can include treatment only for symptoms rather than underlying disorder, e.g. anger management. (2) Decision not to discharge not irrational.
[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, 4. Hospital orders [Note that the chapter number relates to the old Reference Guide], 19. Guardianship and guardianship orders [Note that the chapter number relates to the old Reference Guide] — chapter 4 (hospital orders); paragraphs 19.60 to 19.66 (guardianship orders)
- Mental Health Act 1983 Code Of Practice for England, 26. Guardianship 241, 33. Patients concerned with criminal proceedings
Powers of court to order hospital admission or guardianship
37.—(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law [...] or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.
[(1A) In the case of an offence the sentence for which would otherwise fall to be imposed—
- (a) under section 51A(2) of the Firearms Act 1968,
- (b) under section 110(2) or 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000, [...]
- (c) under [section 225(2) or 226(2)] of the Criminal Justice Act 2003, [or
- (d) under section 29(4) or (6) of the Violent Crime Reduction Act 2006 (minimum sentences in certain cases of using someone to mind a weapon),]
nothing in those provisions shall prevent a court from making an order under subsection (1) above for the admission of the offender to a hospital.
(1B) References in subsection (1A) above to a sentence falling to be imposed under any of the provisions mentioned in that subsection are to be read in accordance with section 305(4) of the Criminal Justice Act 2003.]
(2) The conditions referred to in subsection (1) above are that—
- (a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from [mental disorder] and that either—
- (i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and [appropriate medical treatment is available for him; or]
- (ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and
- (b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.
(3) Where a person is charged before a magistrates’ court with any act or omission as an offence and the court would have power, on convicting him of that offence, to make an order under subsection (1) above in his case [...], then, if the court is satisfied that the accused did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him.
(4) An order for the admission of an offender to a hospital (in this Act referred to as "a hospital order") shall not be made under this section unless the court is satisfied on the written or oral evidence of the [approved clinician who would have overall responsibility for his case] 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 28 days beginning with the date of the making of such an order; and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety.
(5) If within the said period of 28 days it appears to the Secretary of State that by reason of an emergency or other special circumstances it is not practicable for the patient to be received into the hospital specified in the order, he may give directions for the admission of the patient to such other hospital as appears to be appropriate instead of the hospital so specified; and where such directions are given—
- (a) the Secretary of State shall cause the person having the custody of the patient to be informed, and
- (b) the hospital order shall have effect as if the hospital specified in the directions were substituted for the hospital specified in the order.
(6) An order placing an offender under the guardianship of a local social services authority or of any other person (in this Act referred to as "a guardianship order") shall not be made under this section unless the court is satisfied that that authority or person is willing to receive the offender into guardianship.
(8) Where an order is made under this section, the court [shall not-
- (a) pass sentence of imprisonment or impose a fine or make a [community order (within the meaning of Part 12 of the Criminal Justice Act 2003)] [or a youth rehabilitation order (within the meaning of Part 1 of the Criminal Justice and Immigration Act 2008)] in respect of the offence,
- (b) if the order under this section is a hospital order, make a referral order (within the meaning of [the Powers of Criminal Courts (Sentencing) Act 2000]) in respect of the offence, or
- (c) make in respect of the offender [[...] an order under section 150 of that Act (binding over of parent or guardian)],
but the court may make any other order which it] has power to make apart from this section; and for the purposes of this subsection "sentence of imprisonment" includes any sentence or order for detention.
- Criminal Justice Act 2003
- Violent Crime Reduction Act 2006 wef 6/4/07
- Criminal Justice and Immigration Act 2008 wef 14/7/08
- Mental Health Act 2007 s1 & sch 1, s4, s10, s55 & sch 11; Mental Health Act 2007 (Commencement No.7 and Transitional Provisions) Order 2008 wef 3/11/08
- Crime (Sentences) Act 1997
- Criminal Justice and Immigration Act 2008 sch 4 para 30, by Criminal Justice and Immigration Act 2008 (Commencement No.13 and Transitory Provision) Order 2009, wef 30/11/09
- Powers of Criminal Courts (Sentencing) Act 2000
- Youth Justice and Criminal Evidence Act 1999