Sections 37/41 Mental Health Act 1983: a study of judges' practice and assessment of risk to the public

Abstract

Previous studies have reported that a significant proportion of forensic psychiatrists have had experience of restriction orders being made contrary to medical recommendations. Judges were interviewed to ascertain their experiences, sentencing practice and the factors taken into consideration when determining whether or not to attach a restriction order. In particular, the reasons why a restriction order might be made contrary to medical opinion were explored. Twelve judges sitting in crown courts in England were interviewed. The interviewees were unanimous in their view that where a hospital order was being considered involving a serious offence a psychiatrist should take a firm view on whether a restriction order was also required. Furthermore, the interviewees stated that they would anticipate a positive recommendation from psychiatrists in cases involving homicide, arson and serious sexual and violent offences. Demographic factors, including ethnicity, were irrelevant in their deliberations. The experience of this sample is that restriction orders are rarely made contrary to medical recommendations and in the rare circumstances they are made, insufficient emphasis has been placed on previous offending behaviours or the issue of public protection. In addition to the primary intention to protect the public nearly half the sample stated that an additional intention was to ensure compliance with both after-care services and medication.

Deconstructing imposed recovery - clinical perceptions of the legal and administrative framework for managing restricted mental health patients - the experience of one hospital in the independent sector

“…2004). Other non‐clinical studies focus upon the law and the effectiveness of s.37/41 (Street 1998) and judicial practice (Quarashi & Shaw 2008).…”

Narratives of illness and offending: mentally disordered offenders’ views on their offending

“…However, those given a hospital order are significantly more likely to have been convicted of a violent offence at point of trial, although are less likely to have been convicted of a homicide. Qualitative evidence indicates that judges are likely to use a hospital order under section 37 of the Mental Health Act 1983 (as amended by the Mental Health Act 2007) (DOH ) (MHA) where offenders are judged by medics to be mentally disordered, where the offence is serious and where the statutory criteria are met (Qurashi and Shaw ). Where judges believe the severity of an offence warrants extra steps being taken to protect the public, they may impose a restriction order under section 41 of the MHA.…”