Sections 35 and 36: remand to hospital for a report or treatment

What is section 35 of the Mental Health Act?

Section 35 lets a court remand someone to hospital, instead of custody, so that a report can be written on their mental condition. It's for when the court needs that report and couldn't get it with the person on bail.

Why not bail? Someone bailed on condition that they stay in hospital could discharge themselves, and the hospital couldn't stop them (Ref Guide 14.6). On s35 the hospital must admit them and keep them until the court decides otherwise (s35(9)).

Section 35 criteria

The court can remand under s35 when all of these apply (s35(2) to (4)):

• An accused person. In the Crown Court, someone awaiting trial for an imprisonable offence, or arraigned and not yet sentenced. In a magistrates' court, someone convicted of an imprisonable offence, or charged with one if they consent or the court is satisfied they did the act.
• One s12 doctor. A s12 approved doctor gives written or oral evidence that there's reason to suspect mental disorder (s54(1)).
• Bail won't work. The court thinks a report would be impracticable if the person were on bail.
• A bed within 7 days. The approved clinician who'd write the report, or someone for the managers, confirms admission within 7 days of the remand. Until then the court can direct a place of safety.

Learning disability alone counts only with abnormally aggressive or seriously irresponsible conduct (s1(2A), (2B)). In the Crown Court, s35 can be used before a murder trial, but not once someone has been convicted of murder (s35(3)).

How long does a section 35 last?

Up to 28 days at a time, and no more than 12 weeks in all (s35(7)). The court can extend it if the approved clinician writing the report says more time is needed to finish the assessment (s35(5)).

The court can do that without the person attending, as long as their lawyer is heard (s35(6)). It can also end the remand at any time, so work to the hearing dates, not to the 12-week maximum.

Can you treat someone on section 35?

Not under the Mental Health Act. Part 4 doesn't apply to s35 (s56(3)(b)), so they have the same right to refuse treatment as someone who isn't detained (Ref Guide 14.18).

You can treat with their consent, or under the MCA if they're 16 or over and lack capacity for the decision. For a child under 16 who isn't competent, someone with parental responsibility may be able to consent (Code 22.39).

If they need treatment that can't otherwise be given, refer them back to court as soon as possible. Make a recommendation, such as s36 in the Crown Court, and say whether they're fit to attend (Code 22.40). If the court date is a long way off, consider Part 2. A civil section runs alongside the remand rather than replacing it (Code 22.41).

Leave, absconding and rights on section 35

• No leave and no transfer. Section 17 leave isn't available, the managers can't transfer them, and only the court can end the remand (Ref Guide 14.20, 14.21).
• If they abscond. A constable can arrest them without a warrant and bring them back before the court, which can end the remand and deal with them another way (s35(10)).
• Their own report. They can get an independent report from a doctor or approved clinician of their choice, at their own expense or through legal aid. They can use it to ask the court to end the remand (s35(8); Code 22.16, 22.17). The managers should help them contact a solicitor.
• No tribunal and no nearest relative. There's no right to apply to a tribunal, and remanded patients have no nearest relative (Ref Guide 14.24). They can still have an IMHA, and must be told their rights (s130C, s132).
• Existing sections carry on. A remand doesn't end an existing s3, CTO or guardianship, though those can still expire or be discharged as usual (Ref Guide 14.23).

Writing the section 35 report

The court wants advice on whether the person should be diverted from prison, not a general report on their condition (Code 22.9). Identify yourself, say who asked for the report, and explain the limits of confidentiality. Ask for previous psychiatric reports and records, and say clearly if anything isn't available (Code 22.10).

Cover fitness to plead, but don't speculate about guilt (Code 22.20). Psychiatric reports for court covers structure and style.

What is section 36 of the Mental Health Act?

Section 36 lets the Crown Court remand someone to hospital for treatment instead of remanding them in custody. It's for people already in custody awaiting trial, or in custody during their trial, whose disorder needs treatment in hospital while the case goes on.

Section 36 criteria

• Crown Court only. The person is in custody awaiting trial, or in custody at any stage of the trial before sentence, for an imprisonable offence other than murder (s36(2)).
• Two doctors. At least one is s12 approved (s54(1)). They give evidence of a mental disorder of a nature or degree that makes detention in hospital for treatment appropriate.
• Appropriate treatment available. The same test as for s3 (Ref Guide 14.10).
• A bed within 7 days. The approved clinician who'd be in charge, or someone for the managers, confirms admission within 7 days of the remand. Until then the court can direct a place of safety (s36(3)).

Learning disability alone counts only with abnormally aggressive or seriously irresponsible conduct (s1(2A), (2B)). After a finding of insanity or unfitness, s36 can be used before disposal even when the charge is murder (CP(I)A 1964 s5A(2)).

How long does a section 36 last?

The same as s35: up to 28 days at a time, and no more than 12 weeks in all (s36(6)). The court extends it if the RC gives evidence that a further remand is warranted, and can do that in the person's absence if their lawyer is heard (s36(4), (5)). It can end the remand at any time.

Treatment, leave and rights on section 36

• Treatment. Part 4 applies, so medication for mental disorder can be given without consent, with the usual safeguards (Ref Guide 14.19). See consent to treatment.
• No leave or transfer. As on s35, s17 leave isn't available, the managers can't transfer them, and only the court can end the remand (Ref Guide 14.20, 14.21).
• Rights. No tribunal and no nearest relative. They can get their own report and ask the court to end the remand (s36(7)), and they can have an IMHA.
• Absconding. They can be arrested without a warrant and brought before the court (s36(8)).
• Court dates. The hospital must get them to court, with a suitable escort. Liaise with the court in good time about the arrangements (Code 22.36).

What comes after a section 36?

A remand can't outlast 12 weeks, so plan the next step early. After conviction, the court might use an interim hospital order to test treatment, a hospital order or a hybrid order. Your evidence on how they've responded shapes that choice.

Remands don't attract s117 aftercare (s117(1)). If the case ends and they leave hospital without another section, plan follow-up as you would for any discharge.

Section 35 vs section 36