Section 37/41: hospital orders with a restriction order

What is a section 37/41?

A section 37/41 is a hospital order with a restriction order added. The Crown Court adds it when that's needed to protect the public from serious harm. The person becomes a restricted patient, and the Justice Secretary shares control of their care with the RC.

Day to day, that means the Mental Health Casework Section (MHCS), which acts for the Justice Secretary within HM Prison and Probation Service (MHCS leave guidance 2.1). Restricted patients and the Ministry of Justice explains how it works.

Section 41 criteria

The Crown Court can add a restriction order to a hospital order when (s41(1), (2)):

• It's necessary to protect the public from serious harm, given the nature of the offence, the person's antecedents, and the risk of further offences if they're set at large.
• A doctor gives evidence in person. At least one of the s37 doctors must give oral evidence. That doctor needn't recommend restrictions (Ref Guide 15.13).
• The harm can be wide. It needn't be physical injury or to the public at large, but harm to the offender doesn't count. A fairly minor offence can still justify restrictions if other factors point to serious harm (Sentencing Council, Annex C).
• Not to mark seriousness. A restriction order isn't a way of showing how serious the offence was (Sentencing Council, Annex C).

The court isn't bound by the doctors and can add restrictions neither recommends. The parties must have a chance to address it first (Sentencing Council, Annex C).

Magistrates' courts and section 43

Magistrates can't make a restriction order. Suppose they convict someone aged 14 or over of an imprisonable offence, and could make a hospital order. If they think restrictions are needed, they can commit them to the Crown Court instead (s43(1)). That works even for a summary-only offence, but not after a finding that the person did the act without a conviction (Sentencing Council, Annex C).

The committal can be in custody, or to hospital if a bed is arranged (s44). In hospital they're treated as a restricted patient until the Crown Court decides. It can make a hospital order, with or without restrictions, or deal with them as the magistrates could have (s43(2); Ref Guide 17.9).

What the restrictions mean

• Leave. Any s17 leave needs the Justice Secretary's consent. The Justice Secretary can recall them from leave at any time. The RC can't once 12 months have passed from the first day of leave (s41(3); Sch 1 Part 2).
• Transfer. A move to another hospital needs consent too, and so does a move between units if the order names one (Code 22.26).
• Discharge. The RC or managers can discharge only with the Justice Secretary's consent.
• No renewal and no CTO. The order doesn't expire, so it's never renewed, and a CTO isn't available (s41(3)(a), (aa)).
• No time limit on AWOL. They can be taken into custody and returned at any time (Ref Guide 21.4).
• No nearest relative. Restricted patients don't have one for the purposes of the Act (Ref Guide 9.19).
• Reports. The RC examines them and reports to the Justice Secretary at least once a year (s41(6)).

Leave for a restricted patient: how to apply

1. Agree the leave plan in the MDT, with a current risk assessment.
2. If a victim is in the Victim Contact Scheme, get the victim liaison officer's views, including any exclusion zones (MHCS leave guidance 8.1).
3. Tell the MAPPA coordinator. If they're managed at MAPPA level 2 or 3, discuss the leave at a MAPPA meeting first (MoJ MAPPA guidance; MHCS leave guidance 9.2).
4. Apply to MHCS on its leave form, completed in full. Incomplete forms are rejected.
5. Wait for consent before any leave starts. Leave usually builds up in stages, from escorted day leave towards unescorted overnight leave (MHCS leave guidance 6.3 to 6.8).
6. If anything changes the risk, suspend the leave and tell MHCS straight away (Code 22.60).

Leave for medical treatment is usually authorised on admission, except for high profile patients. In an emergency no prior permission is needed, but tell MHCS as soon as you can (MHCS leave guidance 6.1, 6.2).

How long does a section 37/41 last?

There's no time limit, and time in hospital depends on the need for treatment (Code 22.28). The restrictions last until one of these happens:

• The Justice Secretary lifts them, if they're no longer needed to protect the public from serious harm. The person stays detained as an unrestricted s37 patient from that date, and can apply to the tribunal within 6 months (s42(1), s41(5), s69(2)).
• Absolute discharge, by a tribunal, by the Justice Secretary, or by the RC with the Justice Secretary's consent. That ends both the hospital order and the restrictions (Ref Guide 21.7 to 21.10).
• The restriction order ends during a conditional discharge. The person is then treated as absolutely discharged (s42(5), s73(6)).

A s37/41 patient may spend much more or much less time detained than a prison sentence would have meant (MoJ restricted patient briefing).

Section 37/41 tribunal rights

• When they can apply. Once between 6 and 12 months after the order, then once a year. Not in the first 6 months (s70).
• References. The Justice Secretary must refer them if 3 years pass without a hearing, and can refer at any time (s71).
• What the tribunal must do. If it isn't satisfied the detention criteria are met, it must discharge. That's absolute only if it's also satisfied they needn't stay liable to recall. Otherwise it's conditional (s73(1), (2)). Since February 2026 there's a limit. If they'd need conditions depriving them of liberty to protect others from serious harm, it can discharge only if that's no worse for their mental health than hospital (s73(2)(c)).
• Deferral. It can defer a conditional discharge until arrangements, such as a placement, are in place (s73(7)).
• The Justice Secretary is a party. MHCS sends the tribunal a statement on the offence and history within 3 weeks of getting the hospital's reports (Tribunal Rules r32(7A)).

A tribunal doesn't need the Justice Secretary's agreement to discharge a s37/41 patient, and most restricted patients' discharges are tribunal decisions (MoJ restricted patient briefing). See the tribunal.

Section 37/41 in the community: conditional discharge

Most s37/41 patients are discharged conditionally at first (MoJ restricted patient briefing). Conditions usually cover where they live, supervision by a psychiatrist and a social supervisor, and treatment. Both supervisors report to MHCS, generally every 3 months (Code 22.79).

Part 4 doesn't apply in the community, so treatment needs consent or the MCA (s56(3)(c)). The Justice Secretary can recall them by warrant when the risk is linked to their mental disorder (s42(3); Code 22.82). They can apply to the tribunal between 12 months and 2 years after discharge, then every 2 years (s75(2)).

Since February 2026, conditions can amount to a deprivation of liberty where that's needed to protect others from serious harm (s42(2A), s73(5A)). See conditional discharge and recall.

Section 37/41 vs section 47/49

Both are restricted. The difference is that a s37/41 replaces punishment, while a s47/49 patient is still serving a prison sentence.

Common mistakes with restricted patients

• Forgetting MAPPA. Confirm within 3 days of admission whether they're MAPPA eligible, and notify the coordinator (MoJ MAPPA guidance).
• Telling relatives they can apply to the tribunal. There's no nearest relative, so only the patient can apply. Victims can comment on discharge conditions through the victim liaison officer (MoJ restricted patient briefing).

A worked example

The tribunal must discharge him, and because he should stay liable to recall, the discharge will be conditional. It can defer the conditional discharge until the hostel place is ready (s73(7)). Meanwhile he stays detained, and any leave to test the placement still needs MHCS consent.