MHA 1983 s38

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Mental Health Act 1983
(as amended)

Law as at 19/11/11 unless otherwise stated under "Amendments" heading

Part III contents

35, 36, 37, 38, 39, 39A, 40, 41, 42, 43, 44, 45, 45A, 45B, 46, 47, 48, 49, 50, 51, 52, 53, 54, 54A, 55

All Parts

I, II, III, IV, 4A, V, VI, VIII, IX, X, Schedules


Changes made by Mental Health Act 2007

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See also

[The chapter/paragraph numbers which appear below (if any) refer to the 2008 versions of the Code of Practice and Reference Guide.]


Interim hospital orders

38—(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 court before or by which he is convicted is satisfied, on the written or oral evidence of two registered medical practitioners—

(a) that the offender is suffering from [mental disorder];[1] and
(b) that there is reason to suppose that the mental disorder from which the offender is suffering is such that it may be appropriate for a hospital order to be made in his case,

the court may, before making a hospital order or dealing with him in some other way, make an order (in this Act referred to as "an interim hospital order") authorising his admission to such hospital as may be specified in the order and his detention there in accordance with this section.

(2) In the case of an offender who is subject to an interim hospital order the court may make a hospital order without his being brought before the court if he is represented by [an authorised person who][2] is given an opportunity of being heard.

(3) At least one of the registered medical practitioners whose evidence is taken into account under subsection (1) above shall be employed at the hospital which is to be specified in the order.

(4) An interim hospital order shall not be made for the admission of an offender to a hospital unless the court is satisfied, on the written or oral evidence of the [approved clinician who would have overall responsibility for his case][1] 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 order and if the court is so satisfied the court may, pending his admission, give directions for his conveyance to and detention in a place of safety.

(5) An interim hospital order—

(a) shall be in force for such period, not exceeding 12 weeks, as the court may specify when making the order; but
(b) may be renewed for further periods of not more than 28 days at a time if it appears to the court, on the written or oral evidence of the [responsible clinician],[1] that the continuation of the order is warranted;

but no such order shall continue in force for more than [twelve months][3] in all and the court shall terminate the order if it makes a hospital order in respect of the offender or decides after considering the written or oral evidence of the [responsible clinician][1] to deal with the offender in some other way.

(6) The power of renewing an interim hospital order may be exercised without the offender being brought before the court if he is represented by counsel or a solicitor and his counsel or solicitor is given an opportunity of being heard.

(7) If an offender absconds from a hospital in which he is detained in pursuance of an interim hospital order, or while being conveyed to or from such a hospital, he may be arrested without warrant by a constable and shall, after being arrested, be brought as soon as practicable before the court that made the order; and the court may thereupon terminate the order and deal with him in any way in which it could have dealt with him if no such order had been made.


  1. 1.0 1.1 1.2 1.3 Mental Health Act 2007 s1 & sch 1, s10; Mental Health Act 2007 (Commencement No.7 and Transitional Provisions) Order 2008 wef 3/11/08
  2. Legal Services Act 2007 sch 21 para 56; Legal Services Act 2007 (Commencement No. 6, Transitory, Transitional and Saving Provisions) Order 2009 (1/1/10)
  3. Crime (Sentences) Act 1997

Other notes

  1. CPIA 1964 s5A applies this section with modifications.
  2. Sch 8 paras 7-9 Criminal Justice and Immigration Act 2008 make amendments to the Criminal Appeal Act 1968 relating to interim hospital orders