Do you know what it’s like to be sectioned… by the courts?


So, if you’ve read my previous post then you do know what it means to be sectioned. However, not everyone who has been sectioned has gone down the pathway of “innocence”.

I am the last person to put forward the notion that people with mental health problems are criminals, but, as I have mentioned, before mental health can affect anyone. This includes criminals, and yes, in some cases, mental illness can drive people to crime. In other cases, individuals can commit crimes and have poor mental health but the mental health is not causative of the crime. In both cases, there are laws in place to help and protect these people, and also to protect the public from these people.

In this blog post I will outline some of these laws and sections of the Mental Health Act.

Some of the sections are in place in order to assess the individuals mental health, some are in place to treat their already known mental health problems. There are also further laws and restrictions to help to protect the public – criminals can be dangerous, mentally ill and mentally healthy ones. All of these laws are first and foremost in place to help the individual, to help their health and to keep them safe.

Section 35

Criminal courts can use section 35 to send individuals to hospital in order to find out more about their mental health, and they can use this section at any time during their court case. During the court case a medical professional will write a report advising the court and the court will remand the individual to hospital. Hospital must be the best option for the individuals health, safety or to protect other people.

When in hospital, the individual has to agree to their treatment, it cannot be given to them against their will (like in section 3). The individual cannot appeal their section, however they can receive support from an independent mental health advocate to help them understand their situation. They can be kept in hospital for up to 28 days, however this time can be extended for up to a maximum of 12 weeks if the responsible clinical in charge of the individuals care needs more time to complete their assessment.

After their section 35, three possible outcomes may occur:
1. The report says they do not have a mental illness –> in this case the individual will continue through the court proceedings
2. The report says they do have a mental illness –> in this case they could continue through the criminal court proceedings, however extra support can be put in place for them.
3. The report says they have a serious mental illness –> the individual can receive treatment under section 36 or 37 of the mental health act

Summary: Section 35 is used to assess an individual who may or may not have a mental health problem, whilst they are going through a court case, in order to determine how their court proceedings will out. 

Section 36

The criminal court can use section 36 if they think the individual should be in hospital for treatment. For example, if after being sectioned under section 35 the individuals responsible clinician and the court believe the individual has a serious mental illness the section can be transferred to a section 36.

Like with section 35, the section can be used at any time during a court case however treatment can be given against the individuals will. Two approved doctors have to assess the individual. They need to be able to tell the court that the individual has a mental illness, they need treatment and that the treatment available is appropriate.

A doctor can keep an individual in the hospital for 28 days. However, the individuals responsible clinician can extend this stay for up to a maximum of 12 weeks, similar to section 35. Also similar to section 35, the individual cannot appeal their section but can receive advice and support from an advocate.

Three things can happen after a section 36 has finished, and these are similar to a section 35. The individual will either continue through their court proceedings with or without support, depending on if their responsible clinician says they have a mental illness or not, or if the responsible clinician decides the individual has a severe mental health illness they will receive treatment under section 37 or section 37/41 of the mental health act.

Summary: Section 36 is for when an individual is judged as needing hospital treatment for their mental health illness. 

Section 37

Section 37 is also called a hospital order and can be used by the courts if they think an individual should be in hospital for treatment instead of in prison. The individual must be convicted of an offence, or be decided to be ‘unfit to plea’. Unfit to plea means the individual is judged as being too unwell to understand the pleas of being guilty and not guilty.

A section 37 is different to a prison sentence. The individual is assessed by two doctors and has to have a severe mental illness. Once assessed, an approved clinician has the job of finding the individual a bed in 28 days in either a low, medium or high security hospital. Their stay there can last up to 6 months at first. Like with a section 3, the responsible clinician and extend this by another 6 months, and then after that they can renew it for 12 months at a time if needed.

The individual can appeal against their order, however for the first three months the doctors can treat them against their will, and can continue this if the second opinion appointed doctor agrees they should have the medication.

Discharge from a section 37 can be by the responsible clinician, the mental health act or hospital managers, or the mental health review tribunal. Once discharged, it may be thought that the individual needs supervised community treatment and therefore the responsible clinical can set up a community treatment order.

With a CTO the individual cannot be treated without their permission, however they have to agree to certain conditions if not they may find themselves back in hospital under a section 37 once again. CTOs can be appealed against, however the time length can also be extended by responsible clinicians.

Summary: Section 37 is similar to section 36, however instead of being used during a court case it is used once an individual has been convicted or is deemed too ill to understand pleas. It is different to prison sentences and once discharged an individual can be set up to go on a community treatment order.

Section 37/41

On top of a section 37, a section 41 is a restriction order. The crown court can add this to a section 37 if they believe the individual is a risk to the public. It places restrictions on the individual and their responsible clinician, one being the responsible clinician needs to seek permission from the secretary of the state for justice before they can discharge them.

The discharge can be conditional or absolute. If they don’t meet the conditions of a conditional discharge the individual can be made to go back to hospital. However, if things go well then the individual can apply for an absolute discharge.

Summary: This is basically the same as a section 37 but with added restrictions, usually if the court feels like the individual is a risk to the public. 

Section 38

Section 38 is an interim hospital order. It is similar to section 37, however it is short-term so the court can see how the individual responds to treatment in the hospital setting. The individual will be in hospital for up to 12 weeks at first, however this can be renewed by the courts for a further 28 days continuously up to a maximum stay for a year.

Once the section is up, the court will then decide one of two things. That the individual should stay in hospital (either under a section 37 or a section 37/41), or that the individual does not need to be in hospital and a different sentence will be looked at for the individual.

Summary: Section 38 is a short-term stay in hospital to see if it is appropriate for the individual to be there for treatment or in prison. 

Section 47 (/49)

Section 47 is where a prison can ask for an individual to be transferred to a hospital from prison for treatment for a mental illness if the individual is already a sentenced prisoner. This is for prisoners who suffer from a mental illness usually after they have been sentenced, or it has not been picked up during their court case.

One the individual has been in hospital and their mental health improves, they are transferred back to prison. If the individual is in hospital when their sentence ends they can either be discharged from hospital, or kept in hospital under section 37, depending on which option is appropriate.

Summary: Section 47 is for sentenced prisoners needing to be transferred to hospital for mental illness treatment. 


So, there are the main sections used when dealing with court cases and convictions of individuals who are mental ill. Other sections involve the police, such as moving individuals with mental health problems to “safe places”.

However, these sections can be pretty wordy and full of numbers, so I’ll save those for another blog post! Hope i’ve successfully added to your knowledge of the mental health systems and how sectioning works – head back soon!




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