Hospital Orders — What They Are, Who Can Receive One, and What Future Implications Are There?

A hospital order is a sentencing disposal made under the Mental Health Act 1983 (MHA). In appropriate cases, the criminal court directs admission to hospital for treatment instead of imposing a custodial or community sentence. There are two principal types used in the criminal courts: a hospital order under section 37 MHA, and a hospital order with restrictions under section 37/41 MHA.

Who can receive a hospital order?

A court may impose a hospital order where all of the following are satisfied:

• The person has been convicted of an imprisonable criminal offence (subject to narrow exceptions).
• Two registered medical practitioners provide evidence that:
  • The person is suffering from a mental disorder; and
  • The nature or degree of that disorder makes detention for medical treatment appropriate; and
  • Appropriate medical treatment is available for that person.
• Practical arrangements exist for admission to the identified hospital, typically within 28 days of the order.
• Having considered the offence, antecedents and other sentencing options, the court decides a hospital order is the most suitable way of dealing with the case.

The court is not bound by medical opinion, but in practice will ordinarily follow it where the statutory tests are met.

Section 37 hospital order (unrestricted)

• Effect: The individual is detained in a specified hospital for treatment.
• Duration: Initially up to 6 months from admission; renewable for a further 6 months and then yearly thereafter. There is no fixed maximum number of renewals; detention lapses if not renewed in time.
• Leave and discharge: The Responsible Clinician (RC) may grant leave under section 17 MHA and may discharge the patient when detention is no longer necessary. Hospital Managers also have discharge powers.
• Tribunal review: The patient may apply to the First-tier Tribunal (Mental Health) once during the second 6 months and annually thereafter. The Tribunal must discharge if the statutory detention criteria are no longer met.
• Community arrangements: On discharge, a Community Treatment Order (CTO) may be considered. Section 117 aftercare must be provided free of charge to meet needs arising from the mental disorder and reduce risk of relapse.

Section 37/41 hospital order (restricted)

• When imposed: The Crown Court may add a restriction order under section 41 MHA where it is necessary for the protection of the public from serious harm.
• Key features:
• Leave, transfer and discharge are subject to Ministry of Justice oversight and, in practice, require the Secretary of State’s consent unless the Tribunal directs discharge.
• There is no periodic renewal process; the order continues until discharge.
• The Tribunal may order conditional or absolute discharge depending on risk and treatment needs.

Will it still be recorded as a conviction?

• Yes. A hospital order is a sentence for the index offence, and the conviction is recorded on the criminal record.
• Rehabilitation periods: Under the Rehabilitation of Offenders Act 1974 (as amended), a conviction becomes “spent” at the end of the rehabilitation period. For a hospital order (with or without restrictions), the general position is that the rehabilitation period ends when the order ceases to have effect. Where no specific end date is set, the rehabilitation period ends two years from the date of the order.
• Disclosure:
• Basic DBS certificates show only unspent convictions.
• Standard or Enhanced DBS checks may disclose spent convictions, subject to the filtering rules.
• It remains prudent to check your specific circumstances. The government’s online tool can help you determine if your conviction is spent (see below).

• Useful Resource: Check if you need to tell someone about your criminal record: Check if your conviction or caution is spent - GOV.UK

Can a hospital order be appealed?

• Yes. A hospital order is a sentence and may be appealed through the criminal appellate system.
• In the magistrates’ court, you are entitled to appeal your sentence, and the appeal must be lodged within 21 days following your sentencing hearing.
• In the Crown Court, you are not entitled to appeal your sentence unless it was wrong in law or manifestly excessive. The appeal must be lodged within 28 following your sentencing hearing.
• These appeal routes are difference from Mental Health Tribunal applications, which review the ongoing lawfulness of detention and can lead to discharge.

For tailored advice on hospital orders and appeal, please contact our team at Sonn Macmillan Walker Solicitors.