Section 38 – Interim Hospital Order

What is Section 38?

Section 38 of the Mental Health Act is a legal provision that allows for the temporary hospitalisation of an individual for assessment and treatment of their mental health condition. This section is often used when an individual is facing criminal charges, and there is a need to determine whether they require psychiatric care before their trial or sentencing. The primary purpose of Section 38 is to ensure that individuals receive appropriate mental health care and assessment in a secure hospital environment, rather than being held in a remand prison where their mental health needs might not be adequately addressed.

Why might you be placed on Section 38?

You have been placed on Section 38 because the court has reason to believe that you have a mental disorder that requires treatment in a hospital setting. This decision is typically based on reports from medical professionals, such as psychiatrists, who have assessed your mental health. The court has determined that it is in your best interest, and potentially in the interest of public safety, for you to be hospitalised for further assessment and treatment. This period allows healthcare professionals to conduct a thorough evaluation of your mental state and to make informed recommendations regarding your care and any necessary legal actions.

Duration and Process

A Section 38 order can initially last for up to 28 days. However, it can be extended by the court if further assessment is required. During this period, you will be closely monitored and assessed by mental health professionals, including psychiatrists and psychologists. They will provide the court with reports on your mental health and recommendations for your treatment and care. After the assessment period, the court will review the findings and decide on the next steps. These could include extending the hospital order, transferring you to a different type of hospital order, such as Section 37 (hospital order), or proceeding with your trial or sentencing based on the new information about your mental health.

Medication and Consent

Under Section 38, you may be given medication even if you do not consent to it, but this is usually only done if it is deemed essential for your safety or the safety of others. The decision to medicate you without your consent will be made by the medical professionals responsible for your care and will follow strict legal and ethical guidelines. They will consider the necessity and appropriateness of the medication, the potential benefits and risks, and any alternative treatments. You have the right to be informed about the treatment being proposed and the reasons for it.

Leave and Appeals

While you are under Section 38, leave from the hospital is generally not permitted due to the short-term and assessment-focused nature of the order. The primary goal during this period is to conduct a comprehensive evaluation of your mental health and ensure your safety and the safety of others. In exceptional circumstances, and if it is deemed beneficial for your assessment or treatment, limited and supervised leave may be considered by your healthcare team. However, this is rare and would require careful planning and oversight.

If you believe that you should not be under Section 38 or you disagree with decisions made about your treatment, you have the right to appeal. You can start by discussing your concerns with your healthcare team or the hospital managers. They can provide you with information on the appeal process and guide you on how to proceed. You can also seek assistance from an independent mental health advocate (IMHA) or a legal advisor who specialises in mental health law. They can help you understand your rights, prepare your case, and represent you in any hearings or meetings.

What are your rights?

As an individual under Section 38, you have several rights, including:

1. Right to Information: You have the right to be informed about why you are under Section 38, the nature of your mental health condition, and the treatments proposed.
2. Right to Advocacy: You have the right to access an independent mental health advocate (IMHA) who can help you understand your rights and support you in expressing your views and preferences.
3. Right to Appeal: You have the right to appeal against your detention under Section 38 and any decisions made about your treatment.
4. Right to Respect and Dignity: You should be treated with respect and dignity at all times, and your cultural, religious, and personal preferences should be considered in your care.
5. Right to Communication: You have the right to communicate with your family, friends, and legal representatives, subject to any restrictions that may be necessary for safety reasons.
6. Right to Consent: While you can be treated without your consent under certain circumstances, you still have the right to be informed about and involved in decisions about your treatment wherever possible.

Understanding your rights and actively participating in your care can help ensure that you receive the best possible support and treatment while under Section 38.

Our partner hospital facilities are dedicated to providing compassionate care, ensuring your rights are upheld, and supporting you throughout your recovery journey. Your well-being and rights are our top priorities. We are here to support you on your journey towards recovery, every step of the way.

If you have any questions or concerns, please don’t hesitate to reach out to a member of our team.