If a defendant or offender’s mental health condition seems moderate to severe, or an individual with a learning disability is displaying ‘abnormally aggressive’ or ‘seriously irresponsible behaviour’, you may need to consider whether they should be in hospital. This could be for a temporary admission for assessment and/or treatment, or it could be more long term. There are a number of sections of the Mental Health Act that you can use during court proceedings and as a sentencing option.

Arrangements for such disposals can be complex and the legal adviser will be able to provide further information.

The main disposals for mentally disordered defendants and offenders are:

• Section 35: allows a magistrates’ court to remand a defendant to a specified hospital (with agreement of the hospital) to enable a report to be prepared on his/her mental condition.
• Section 36: an interim hospital order can be made at any time by the Crown Court to remand a defendant to hospital to see how they respond to treatment.
• Section 37: a hospital order permits the court to order the defendant’s admission to hospital if the mental disorder makes detention for medical treatment appropriate, and appropriate treatment is available. The order can be made by a magistrates’ court or the Crown Court following conviction for an imprisonable offence, or by a magistrates’ court without a conviction if the court is satisfied that the defendant committed the act/omission with which he/she was charged. A hospital order can be for up to six months’ duration in the first instance, but it can be renewed. Therefore unlike most criminal justice disposals, it is essentially indeterminate.
• Section 37: under a guardianship order, the defendant is placed under the responsibility of a local authority or a person approved by the local authority. Like a hospital order, this can be made by a magistrates’ court or the Crown Court following conviction, or by a magistrates’ court without a conviction if the court is satisfied that the defendant committed the act/omission.
• Section 38: an interim hospital order can be made, by the Crown Court or a magistrates’ court, after conviction, when the court needs more time to decide whether to impose a hospital order or to use an alternative disposal.
• Section 41: a restriction order can be imposed by the Crown Court alongside a hospital order, where this is deemed necessary by the court to protect the public from ‘serious harm’. The order places limits on the individual’s discharge from hospital.