Section 38 interim hospital orders: a trial of treatment

What is a section 38 interim hospital order?

An interim hospital order lets a court send someone it has convicted to hospital for a trial of treatment before it decides on sentence. It answers a practical question: will a hospital order work for this person?

The Code suggests recommending one when you can't say with confidence, at sentence, whether a hospital order or a mental health treatment requirement is right. In that situation, hospital is the right place, not prison (Code 22.15).

When courts use section 38

• When the right disposal isn't clear yet. You can't say whether a hospital order, or a community sentence with a treatment requirement, will work (Code 22.15).
• Before a hybrid order. The Crown Court can use an interim order before giving a hospital and limitation direction under s45A (s45A(8)).
• Before any other sentence. The court can end the interim order and choose another sentence, including prison (s38(5); Ref Guide 18.2).
• After insanity or unfitness. It's available after a special verdict or a finding of unfitness, even on a murder charge (CP(I)A 1964 s5A(2)).

Section 38 criteria

The court must be satisfied of all of these (s38(1), (3), (4)):

• A conviction. For an imprisonable offence other than murder in the Crown Court, or an offence punishable on summary conviction with imprisonment in a magistrates' court.
• Two doctors, one from the receiving hospital. At least one is s12 approved, and at least one is employed at the hospital named in the order (s38(3), s54(1)).
• Mental disorder, with reason to suppose that a hospital order may be appropriate. That's a lower bar than the s37 test.
• A bed within 28 days. The approved clinician who'd be in charge, or someone for the managers, confirms admission within 28 days. 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)). If a bed is hard to find, the court can ask the integrated care board or NHS England what's available (s39).

How long does a section 38 last?

The court sets the first period, up to 12 weeks. It can renew the order for up to 28 days at a time, on the RC's evidence that continuing is warranted. The total can't exceed 12 months (s38(5)).

Renewal can happen without the person in court, if their counsel or solicitor is heard (s38(6)). When they do need to attend, the hospital is responsible for getting them there with an escort (Code 22.36).

Treatment on section 38

Part 4 applies, so treatment for mental disorder can be given without consent, with the same safeguards as for other detained patients (Ref Guide 18.15). That's the point of the order: the court wants to see how they respond. See consent to treatment.

What a section 38 doesn't allow

• No leave. The RC can't grant s17 leave (Ref Guide 18.14).
• No transfer or discharge. Neither the RC nor the managers can discharge them, and the managers can't transfer them. The court, in effect, discharges them by ending the order (Ref Guide 18.14).
• No tribunal and no nearest relative. Interim order patients have neither (Ref Guide 18.14, 18.16).
• No restrictions. Section 41 can only be added to a full hospital order, so there's no such thing as a s38/41 (s41(1)). The court keeps tight control anyway.
• No CTO and no s117. A CTO needs a patient detained for treatment, and s117 doesn't list s38 (s17A, s117(1)). Section 117 follows any hospital order, and a CTO becomes possible if it's unrestricted.

How a section 38 ends

• A hospital order. The court ends the interim order when it makes a hospital order. It can do that without the person present if they're represented (s38(2), (5)).
• Another sentence. The court can end it and pass any other sentence, including prison with a hybrid order. It can't give a s45A in the person's absence (Ref Guide 18.7, 18.8).
• Absconding. A constable can arrest them without a warrant and bring them before the court, which can end the order and deal with them in any other way (s38(7)).
• The 12-month limit. The order can't run past 12 months in total, so the court must decide by then.
• Appeal. An interim order is a sentence, so it can be appealed. The court can still make its final decision while an appeal is outstanding (Ref Guide 18.9).

Section 38 vs section 37

Your evidence during a section 38

The court relies on the RC's evidence to renew the order and to decide what follows (s38(5)). Cover how they've responded to treatment and whether the s37 criteria are now met. Code 22.19 also asks for the risks they pose, including of reoffending.

Say whether the court might consider restrictions, and whether a hybrid order under s45A could work if prison is likely (Code 22.23). Psychiatric reports for court covers the format.

Common mistakes with section 38

• Treating it like a hospital order. There's no s17 leave and no RC discharge, so leave plans wait for the final order.
• Missing a renewal hearing. If the court doesn't renew it, the order ends when its period runs out. Diary every date and send your evidence in good time.
• Choosing the wrong second doctor. One of the two doctors must work at the receiving hospital (s38(3)).

A worked example

An interim hospital order fits (Code 22.15). The court might set 12 weeks, then renew it 28 days at a time on the RC's evidence. If she still needs hospital, it can make a hospital order and consider restrictions. If she recovers quickly, it can choose another sentence.