The term ‘notional s37’ is not mentioned in the statute, but is often used informally in the following cases:
- Where a patient was transferred under s47/49 but, on the release date, the restriction direction has ceased to have effect, he will be left with the s47 on its own and the notional s37 begins when the restrictions cease. This is the usual situation.
- Where a patient is transferred from prison under s47 but without a restriction direction under s49. See s47(3).
The 'release date' is the date when the prisoner would be 'entitled to be released' from prison if he were still there (s50(3)). Indeterminate-sentence prisoners do not have a release date; for determinate-sentence prisoners it depends on the type of sentence but generally is the half-way point.
Other possibilities are:
- Where the patient was given a determinate prison sentence and a hospital direction/limitation direction under s45A and at the release date the limitation direction ceases to have effect
- The admission order, without restrictions, under the old CPIA 1964 s5 is sometimes also called a notional 37.
- In theory the Secretary of State for Justice could decide that detention should continue without the restriction order (s42(1)) but this is unheard of in practice.
- (Historically) where the patient had been detained under s37/41 with a time-limited restriction order and the restrictions had ceased. Note that since the Mental Health Act 2007 changes on 3/11/08 all new restriction orders must be of indefinite duration.
Generally, therefore, the term refers to a patient who is notionally treated as if subject to a hospital order under s37.
A patient subject to a notional s37 (except those under an admission order) can apply to the Tribunal in the first six months. Those subject to a real s37 hospital order cannot. The difference is said to be because the latter have had their case considered by a court, whereas the former are under their current status because of an administrative action or the passage of time (although until the 1983 Act when s37/41 patients were given the right to apply to the Tribunal, s37 patients could apply during the first six months).
Although they will be released into the community from hospital, their sentence continues after transfer as if they had been released from prison (as does any licence period, during which they can be recalled), if R (Miah) v SSHD  EWHC 2569 (Admin) was correctly decided.
In other respects, the discharge routes are the same as for s37 hospital orders.