Section 37 hospital orders: criteria, length and discharge

What is a section 37 hospital order?

A hospital order is a sentence a court can pass instead of punishment. It sends someone convicted of an imprisonable offence to hospital for treatment. The court can't add a prison sentence, a fine or a community order, though it can make other orders, such as compensation (s37(8); Ref Guide 15.7).

The usual purposes of sentencing don't apply to it (Sentencing Council guideline, Annex C). Once it's made, an unrestricted hospital order works much like a section 3, with a few differences that catch people out.

Section 37 criteria

The court must be satisfied of all of these (s37(1), (2), (4)):

• A conviction for an imprisonable offence. In the Crown Court, any imprisonable offence except one with a sentence fixed by law, which means murder. In a magistrates' court, an offence punishable on summary conviction with imprisonment.
• Two doctors. Written or oral evidence from two doctors, at least one s12 approved (s54(1)).
• The medical test. A mental disorder of a nature or degree that makes detention in hospital for treatment appropriate, with appropriate medical treatment available.
• The most suitable disposal. Weighing the offence, the person's character and antecedents, and the alternatives, the court must think a hospital order the most suitable way to deal with the case. Antecedents means their history, including offending (Ref Guide 15.5).
• A bed. The approved clinician who'd be in charge, or someone for the managers, confirms admission within 28 days of the order.

The test is the person's condition at sentence, whatever it was when they offended (Sentencing Council, Annex C). Learning disability alone counts only with abnormally aggressive or seriously irresponsible conduct (s1(2A), (2B)). Dependence on alcohol or drugs isn't a mental disorder under the Act (s1(3)).

Hospital orders without a conviction

• In a magistrates' court. If it's satisfied the person did the act, the court can make a hospital order without convicting them (s37(3)). They can appeal as if they'd been convicted (s45).
• After insanity or unfitness. This covers a verdict of not guilty by reason of insanity, or a finding that they're unfit to plead but did the act. The Crown Court chooses a hospital order, a supervision order or an absolute discharge (CP(I)A 1964 s5(2)).
• On a murder charge. In that route, if the charge was murder and the court can make a hospital order, it must add restrictions (CP(I)A 1964 s5(3)). It doesn't need a bed offer, but contact the hospital anyway (Code 22.11).

See fitness to plead and the insanity defence.

How a hospital order is made: step by step

1. The court asks for psychiatric reports. If a bed is hard to find, it can ask the integrated care board or NHS England what's available (s39).
2. Two doctors assess and report. One should have access to a bed, or refer the case to a clinician who does (Code 22.11).
3. If you can't yet say whether a hospital order will work, consider recommending an interim hospital order first (Code 22.15).
4. The receiving hospital's approved clinician, or someone for the managers, tells the court a bed will be available within 28 days (s37(4)).
5. The court makes the order. Until admission it can direct a place of safety, such as a willing hospital, a police station or a prison (s55(1)).
6. A constable, an AMHP or anyone the court directs takes them to the named hospital within the 28 days (s40(1)). In an emergency, the Justice Secretary can direct admission elsewhere (s37(5)).
7. If they aren't admitted within 28 days, the order lapses (Ref Guide 15.8).

Part 4 doesn't apply while they're held in a place of safety under s37(4), so treatment there needs consent or the MCA (s56(3)(b)).

What a hospital order allows

• Treatment. Part 4 applies, as for s3. See consent to treatment.
• Leave and transfer. The RC can grant s17 leave and the managers can transfer them, with no Ministry of Justice involvement (Code 22.76).
• A CTO. The RC can discharge them onto a CTO, as for s3 (Sch 1 Part 1).
• Aftercare. Section 117 applies when they stop being detained and leave hospital (s117(1)).
• Earlier sections end. A hospital order ends any earlier Part 2 section and any earlier unrestricted order, but not a restricted hospital order (s40(5); Ref Guide 15.36).

How long does a section 37 last?

Up to 6 months, then 6 more, then a year at a time, as for s3 (s20, applied by Sch 1). The first period runs from the date of the order, not the date of admission, which may be days later (Ref Guide 15.31).

To renew it, the RC examines the patient in the last 2 months of the period. Another professional involved in their treatment, from a different profession, must agree in writing. The RC then reports on Form H5 (s20(3), (5A)).

Section 37 discharge and tribunal rights

• Who can discharge. The RC or the hospital managers, at any time (s23, as applied by Sch 1).
• Not the nearest relative. They can apply to the tribunal instead, in the same periods as the patient (s69(1)(a)). They still get a copy of the patient's written rights information, unless the patient objects (s132(4)).
• No tribunal in the first 6 months. A court made the original decision, so the patient's first chance is the second 6 months, then once a year (Ref Guide 15.33).
• References. There's no automatic reference at 6 months. The managers must refer if 3 years pass without a tribunal, or 1 year for someone under 18 (s68(6); Ref Guide 15.33).
• Information and advocacy. The managers must explain their rights orally and in writing, and they can have an IMHA (s132, s130C).

Section 37 vs section 3 vs section 37/41

Guardianship orders under section 37

Instead of hospital, the court can place someone aged 16 or over under guardianship. Two doctors must say the disorder warrants it, and the council or named guardian must be willing to act (s37(2), (6)). The court can ask the council whether it will, and how it would use the powers (s39A).

The guardian gets the same three powers as under s7 (s40(2)). The patient can apply to the tribunal in the first 6 months. The nearest relative can't discharge the order, but can apply in the first 12 months and then once a year (s69(1)(b)). See guardianship.

Common mistakes with section 37

• Counting from admission. The 6 months and the 28 days both run from the date of the order (s37(4); Ref Guide 15.31).
• Telling the family they can discharge. On a hospital order the nearest relative can't. Point them to the tribunal instead.
• Waiting for an automatic tribunal. There's none at 6 months for a hospital order, so check whether the patient wants to apply once the order is renewed.
• Missing the restrictions. Check whether the Crown Court added s41. If it did, leave, transfer and the RC's discharge all need the Justice Secretary's consent. See restriction orders.

A worked example

His mother can't discharge him. The RC can, if he no longer meets the criteria, perhaps onto a CTO, and s117 aftercare then applies. If the RC renews the order on Form H5, he and his mother can each apply to the tribunal in the second 6 months.