Section 38

This page  looks at section 38 of the Mental Health Act. It looks at the professionals you might come across in hospital, when and how the courts use this section. It explains what your rights are during this section and what could happen afterwards.

Overview

  • The criminal courts can use section 38 of The Mental Health Act 1983. They can use it if they find you guilty of an offence that you could go to prison for. Section 38 allows the court to send you to hospital for assessment and treatment before you are sentenced.
  • Going to hospital under The Mental Health Act is sometimes known as being ‘sectioned’.
  • An order under Section 38 of the Mental Health Act is known as an ‘interim hospital order.’ This means it is short-term while the court decides what sentence to give you.
  • The hospital can treat you without your permission for up to 3 months.
  • The psychiatrist responsible for your care will see how you respond to treatment and tell the court. They are known as your ‘responsible clinician.’
  • The court will decide what sentence to give you. You could stay in hospital on a hospital order (section 37 or 37/41) or go to prison.

About section 38

When do the courts use this section?

The criminal courts can use section 38 of The Mental Health Act. They can use it if they find you guilty of an offence that you could go to prison for.

Section 38 allows the court to send you to hospital for assessment and treatment before you are sentenced. The court can do this if you have a mental illness that needs treatment in hospital.

An order issued under Section 38 is known as ‘an interim hospital order’. This means it is short-term while the court decides what sentence to give you.

How do the courts use this section?

Before the court can issue an interim hospital order two doctors must assess you. They must tell the court that you have a mental illness that needs treatment in hospital.

One of the doctors should be from the hospital where you will be staying.

The managers of the hospital should find you a bed within 28 days.

You might have to wait in prison until a bed is available. Some prisons have healthcare units where you could stay which are like being in hospital.

You will stay in a secure hospital. There are three types of secure hospitals - low, medium or high security.

The judge will decide what level of security is needed for you.

How long will I be on this section? 

You will be in hospital on section 38 for up to 12 weeks at first.

If your responsible clinician thinks you can stay in hospital they can ask for your section 38 to continue for a further 28 days. They can keep doing this but the maximum time you can be kept in hospital for is 1 year.

 

 

What might happen after this section? 

Your Responsible Clinician (RC) will see how you respond to treatment in hospital. They will report back to the court and suggest what should happen next. The court will decide what sentence to give you. They could decide the following.

  • You should stay in hospital. The court can change your interim hospital order to a full hospital order under section 37 or 37/41 of The Mental Health Act.
  • You don’t need to be in hospital and they give you another type of sentence.

 

Will I have to go back to court if the order is extended? 

As the rights section of this page explained, the court can extend your interim hospital order.

You don’t need to back to court if you have a solicitor who can represent you. If you don’t have a solicitor, you will need to go to court. You might not be well enough to go to court. Your Responsible Clinician (RC) can write to the court to tell them this. And your RC can ask for the hearing to be delayed until you are well enough.

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