Mental Health Act 1983

Hospital and guardianship ordersE+W

37 Powers of courts to order hospital admission or guardianship.E+W

(1)Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law,F1. . . , or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.

[F2(1A)In the case of an offence the sentence for which would otherwise fall to be [F3imposed under section 258, [F4258A,] [F5268A, 273, 274, [F6274A,] 282A], 283 [F7, 285 or 285A] of the Sentencing Code or under Chapter 7 of Part 10 of that Code, nothing] in those provisions shall prevent a court from making an order under subsection (1) above for the admission of the offender to a hospital.

[F8(1B)For the purposes of subsection (1A) above—

(a)a sentence falls to be imposed under section 258 [F9or 258A] of the Sentencing Code if the court is obliged by that section to pass a sentence of detention for life under section 250 of that Code;

[F10(aa)a sentence falls to be imposed under section 268A or 282A of that Code if it is required by section 268B(2) or 282B(2) of that Code and the court is not of the opinion there mentioned;]

(b)a sentence falls to be imposed under section 273[F11, 274 or 274A] of that Code if the court is obliged by that section to pass a sentence of custody for life;

(c)a sentence falls to be imposed under section 283[F12, 285 or 285A] of that Code if the court is obliged by that section to pass a sentence of imprisonment for life;

(d)a sentence falls to be imposed under Chapter 7 of Part 10 of that Code if it is required by section 311(2), [F13312(2A), 313(2A), 314(2A) or 315(2A)] of that Code and the court is not of the opinion there mentioned.]

(2)The conditions referred to in subsection (1) above are that—

(a)the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from [F14mental disorder] and that either—

(i)the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and [F15appropriate medical treatment is available for him; or]

(ii)in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and

(b)the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.

(3)Where a person is charged before a magistrates’ court with any act or omission as an offence and the court would have power, on convicting him of that offence, to make an order under subsection (1) above in his case F16. . . , then, if the court is satisfied that the accused did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him.

(4)An order for the admission of an offender to a hospital (in this Act referred to as “a hospital order”) shall not be made under this section unless the court is satisfied on the written or oral evidence of the [F17approved clinician who would have overall responsibility for his case] or of some other person representing the managers of the hospital that arrangements have been made for his admission to that hospitalF18. . . , and for his admission to it within the period of 28 days beginning with the date of the making of such an order; and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety.

(5)If within the said period of 28 days it appears to the Secretary of State that by reason of an emergency or other special circumstances it is not practicable for the patient to be received into the hospital specified in the order, he may give directions for the admission of the patient to such other hospital as appears to be appropriate instead of the hospital so specified; and where such directions are given—

(a)the Secretary of State shall cause the person having the custody of the patient to be informed, and

(b)the hospital order shall have effect as if the hospital specified in the directions were substituted for the hospital specified in the order.

(6)An order placing an offender under the guardianship of a local social services authority or of any other person (in this Act referred to as “a guardianship order”) shall not be made under this section unless the court is satisfied that that authority or person is willing to receive the offender into guardianship.

(7)F19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)Where an order is made under this section, the court [F20shall not—

(a)pass sentence of imprisonment or impose a fine or make a [F21community order (within [F22the meaning given by section 200 of the Sentencing Code])] [F23or a youth rehabilitation order (within [F24the meaning given by section 173 of that Code])] in respect of the offence,

(b)if the order under this section is a hospital order, make a referral order (within [F25the meaning given by section 83 of that Code]) in respect of the offence, or

(c) make in respect of the offender F26 . . . [F27 an order under [F28section 376 of that Code] (binding over of parent or guardian)],

but the court may make any other order which it] has power to make apart from this section; and for the purposes of this subsection “sentence of imprisonment” includes any sentence or order for detention.]

38 Interim hospital orders.E+W

(1)Where a person is convicted before the Crown Court of an offence punishable with imprisonment (other than an offence the sentence for which is fixed by law) or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment and the court before or by which he is convicted is satisfied, on the written or oral evidence of two registered medical practitioners—

(a)that the offender is suffering from [F29mental disorder] ; and

(b)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,

the court may, before making a hospital order or dealing with him in some other way, make an order (in this Act referred to as “an interim hospital order”) authorising his admission to such hospital as may be specified in the order and his detention there in accordance with this section.

(2)In the case of an offender who is subject to an interim hospital order the court may make a hospital order without his being brought before the court if he is represented by [F30an authorised person who] is given an opportunity of being heard.

(3)At least one of the registered medical practitioners whose evidence is taken into account under subsection (1) above shall be employed at the hospital which is to be specified in the order.

(4)An interim hospital order shall not be made for the admission of an offender to a hospital unless the court is satisfied, on the written or oral evidence of the [F31approved clinician who would have overall responsibility for his case] or of some other person representing the managers of the hospital, that arrangements have been made for his admission to that hospital and for his admission to it within the period of 28 days beginning with the date of the order; and if the court is so satisfied the court may, pending his admission, give directions for his conveyance to and detention in a place of safety.

(5)An interim hospital order—

(a)shall be in force for such period, not exceeding 12 weeks, as the court may specify when making the order; but

(b)may be renewed for further periods of not more than 28 days at a time if it appears to the court, on the written or oral evidence of the [F32responsible clinician] , that the continuation of the order is warranted;

but no such order shall continue in force for more than [F33twelve months] in all and the court shall terminate the order if it makes a hospital order in respect of the offender or decides after considering the written or oral evidence of the [F32responsible clinician] to deal with the offender in some other way.

(6)The power of renewing an interim hospital order may be exercised without the offender being brought before the court if he is represented by counsel or a solicitor and his counsel or solicitor is given an opportunity of being heard.

(7)If an offender absconds from a hospital in which he is detained in pursuance of an interim hospital order, or while being conveyed to or from such a hospital, he may be arrested without warrant by a constable and shall, after being arrested, be brought as soon as practicable before the court that made the order; and the court may thereupon terminate the order and deal with him in any way in which it could have dealt with him if no such order had been made.

39 Information as to hospitals.E+W

(1)Where a court is minded to make a hospital order or interim hospital order in respect of any person it may request—

(a)the [F34integrated care board] F35... [F36Local Health Board] for [F37the area] in which that person resides or last resided; or

(b)[F38[F39NHS England] or] [F40the National Assembly for Wales or any other] [F34integrated care board] F35... [F36Local Health Board] that appears to the court to be appropriate,

to furnish the court with such information as [F37that [F34integrated care board] F35... [F36Local Health Board] [F41or [F42[F39NHS England] or the] National Assembly for Wales] have] or can reasonably obtain with respect to the hospital or hospitals (if any) in [F37their area] or elsewhere at which arrangements could be made for the admission of that person in pursuance of the order, and [F37that [F34integrated care board] F35... [F36Local Health Board] [F43or [F42[F39NHS England] or the] National Assembly for Wales] shall] comply with any such request.

[F44(1ZA)A request under this section to [F39NHS England] may relate only to services or facilities the provision of which [F39NHS England] arranges.]

[F45(1A)In relation to a person who has not attained the age of 18 years, subsection (1) above shall have effect as if the reference to the making of a hospital order included a reference to a remand under section 35 or 36 above or the making of an order under section 44 below.

(1B)Where the person concerned has not attained the age of 18 years, the information which may be requested under subsection (1) above includes, in particular, information about the availability of accommodation or facilities designed so as to be specially suitable for patients who have not attained the age of 18 years.]

F46(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[39AF47Information to facilitate guardianship orders.E+W

Where a court is minded to make a guardianship order in respect of any offender, it may request the local social services authority for the area in which the offender resides or last resided, or any other local social services authority that appears to the court to be appropriate—

(a)to inform the court whether it or any other person approved by it is willing to receive the offender into guardianship; and

(b)if so, to give such information as it reasonably can about how it or the other person could be expected to exercise in relation to the offender the powers conferred by section 40(2) below;

and that authority shall comply with any such request.]

40 Effect of hospital orders, guardianship orders and interim hospital orders.E+W

(1)A hospital order shall be sufficient authority—

(a)for a constable, an [F48approved mental health professional] or any other person directed to do so by the court to convey the patient to the hospital specified in the order within a period of 28 days; and

(b)for the managers of the hospital to admit him at any time within that period and thereafter detain him in accordance with the provisions of this Act.

(2)A guardianship order shall confer on the authority or person named in the order as guardian the same powers as a guardianship application made and accepted under Part II of this Act.

(3)Where an interim hospital order is made in respect of an offender—

(a)a constable or any other person directed to do so by the court shall convey the offender to the hospital specified in the order within the period mentioned in section 38(4) above; and

(b)the managers of the hospital shall admit him within that period and thereafter detain him in accordance with the provisions of section 38 above.

(4)A patient who is admitted to a hospital in pursuance of a hospital order, or placed under guardianship by a guardianship order, shall, subject to the provisions of this subsection, be treated for the purposes of the provisions of this Act mentioned in Part I of Schedule 1 to this Act as if he had been so admitted or placed on the date of the order in pursuance of an application for admission for treatment or a guardianship application, as the case may be, duly made under Part II of this Act, but subject to any modifications of those provisions specified in that Part of that Schedule.

(5)Where a patient is admitted to a hospital in pursuance of a hospital order, or placed under guardianship by a guardianship order, any previous application, hospital order or guardianship order by virtue of which he was liable to be detained in a hospital or subject to guardianship shall cease to have effect; but if the first-mentioned order, or the conviction on which it was made, is quashed on appeal, this subsection shall not apply and section 22 above shall have effect as if during any period for which the patient was liable to be detained or subject to guardianship under the order, he had been detained in custody as mentioned in that section.

[F49(6)Where—

(a)a patient admitted to a hospital in pursuance of a hospital order is absent without leave;

(b)a warrant to arrest him has been issued under section 72 of the M1Criminal Justice Act 1967; and

(c)he is held pursuant to the warrant in any country or territory other than the United Kingdom, any of the Channel Islands and the Isle of Man,

he shall be treated as having been taken into custody under section 18 above on first being so held.]