You will remember very vividly because of the attention you paid what a hospital order is, under s37 of the Mental Health Act. You’ll also remember how the Crown Court can ‘restrict’ a hospital order under s41 MHA. If you can’t and you want to refresh your memory, you can read my original post on Restricted Hospital Orders – I won’t tell anyone that you needed to but beware the test at the end of term!
Something open to a court which is considering a hospital order is to give it a “test drive” as a potential way forward and impose an “interim hospital order” under s38 MHA. This interim order can be imposed by the courts initially for a period of 12 weeks and it may then be renewed for 28 days periods up to a maximum of twelve months. If whilst a patient is detained under s38 the court is provided with information which leads it to conclude that a full hospital order under s37 is required, they can make it a substantive order without the patient having to be brought back before a court.
The criteria for making an interim order are that “the offender is suffering from mental disorder and 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.” So I would like to put forward a inexact comparison with section 2 and section 3 MHA:
- Sections 2 and 38 allows for detention because of mental disorder in order to establish a full diagnosis and treatment plan.*
- Sections 3 and 37 allow for detention because of mental disorder in order to provide treatment for a confirmed and established diagnosis.** I am aware that is a very generalised comparison! – intended for colleagues in the police.
UNUSUAL PLACES OF SAFETY
Where are court is exercising a power under either s37 or s38, it may be the case that the hospital bed to which the patient is to be admitted is not immediately available. In such circumstances the court has powers – under 37(4) and s38(4) – to remand the patient to a place of safety for up to 14 days. In this legal context, the PoS definition applies to adults only and is:
“Any police station, prison or remand centre, or any hospital the managers of which are willing temporarily to receive him.”
When we think about a “Place of Safety” we normally think about police powers under s136 and s135(1) and we think about the definition in s135(6) of “residential accommodation provided by the local social services authority, a hospital, a police station or anywhere else temporarily willing to receive the person.”
Well, this is only one of two definitions of a place of safety under the Mental Health Act. That definition relates to those police powers under Part X of the Act; but there is another definition in s55 MHA and it relates to a PoS after the exercise of a Court’s powers in Part III of the Act – the part concerned with patients in connection with criminal proceedings.
Did you spot the bombshell for custody sergeants?! – yes(!) there are, in theory, just some circumstances in which a judge could direct the police to detain a patient in custody for up to 14 days! I have never heard of this occuring but I did recently hear of a prison being used as a s38(4) PoS which is what prompted this blog.
ABSCONDED FROM s38
Finally, only a police officer may re-detain someone who has absconded from a s38 MHA order and they must then return the person to the custody of the court; not return them to the hospital. The court may then decide how to sentence or handle the situation which could include remand to prison; return to hospital under s38 or proceed to full sentencing of whatever kind the court thinks is appropriate.
Update on 01st April 2015 – since writing this article, a new Code of Practice has come into effect in England. It doesn’t substantially alter the post but certain reference numbers have changed. My summary post about the new Code of Practice (2015) is here, the new Reference Guide is here and the full document is here. The Code of Practice (Wales) remains unchanged.
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown, 2013
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – www.legislation.gov.uk