S37/41 Patient Deemed Fit to Plead and Stand Trial

We have a patient who was admitted to hospital in 2019 under S37/41. The Court order states is was impracticable or inappropriate for the patient to be brought to court.

We have now received a letter advising the RC has informed the MoJ that the patient is now fit to plead and stand trial for the index offence, and will be remitted to court. The patient is to remain in hospital until returned to court.

This is the first time we have come across this and were unaware that a person could be remitted to court in these circumstances. Has anyone come across this before? What bits of the legislation cover this? Any advice gratefully received.

Presumably the patient was sentenced to a Sec 37/41 following a trial of the facts (as they were unfit to plead or instruct legal representatives) so would come back to court for conviction. We’ve had cases where people have been returned to court 10years + after the index offence.

Sure if a S37/41 was delivered by the court at the time then that is its disposal and would be inappropriate to return it to court. Fascinating!

Hi Helen

Are you sure the patient is detained subject to S.37/41 MHA and not under the Criminal Procedure Insanity Act 1964 (as amended). Cases under the CPIA can be referred back to the CPS to consider pursing a conviction, there is a specific form for doing so. I am not aware that patients subject to S.37/41 MHA can be returned back to court for conviction because the S.37/41 MHA decision is a determinative sentence handed down by the court following conviction.
Best check with the MOJ.
From a practical perspective, I have challenged these decisions and I would recommend P gets legal advice on the issue.

Thanks for the responses, I have done a little more digging– If you google Resuming a Prosecution when a patient becomes fit to plead there is guidance on the issue.

It confirms that yes the MoJ can resume the criminal proceedings. The fitness to plead procedure merely suspends a prosecution until a defendant is able to enter a plea and stand trial. It is essential that criminal proceedings are resumed and determined swiftly when the Secretary of State remits a patient for trial.

After working in Mental Health Law for over 20 years this is the first time I have come across this, and always thought once the court had place a S37/41 then the case was disposed of. As they say every day is a school day!

Kind regards

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Here’s one case - Schizophrenic admits killing Corsham girlfriend | The Wiltshire Gazette and Herald

I’ve been a social worker for 36 years and an ASW/AMHP for 30 of those and I admit the Criminal Insanity (Unfitness to Plead) Act 1964 (Amended 1991) is rarely used.
I came across it 24 years ago regarding a service user of mine, a young man with Learning disabilities who had sexually assaulted a child. He was found that he “did the act” and the disposal was in effect a section 37 hospital order. I left that post to join another LA so I never tracked what happened to him down the line.
But I’m pretty sure this case that had been posted relates to a court disposal using the same legislation.

Hi Helen
I am not sure how he can be on a S.37/41 if the court hasn’t disposed of the proceedings as it is a final decision unless appealed, but I may be wrong.

Section 5 of the Criminal Procedure (Insanity) Act 1964 allows the court to impose a hospital order under section 37 of the MHA with or without a restriction order under section 41. Then refer to section 5A(4) which deals with how the case may be remitted to trial, subsequent to the above order being made.


Hi Helen,
I have experienced this on one occasion.
Just be mindful that the current MHA legislation will END as soon as the patient is at court so as an MDT you will need to consider a contingency in case the court do not apply any further MHA legislation.


Following with interest as I have a loved one in exactly this scenario after having been sectioned 7 years ago under 37/41. The law says 37/41 is a sentence and hospital is “instead of” prison. I can get my head around the need to tie up loose ends which weren’t possible while the patient was deemded unfit to plea for a trial but the facts were nonetheless determined and agreed by the jury and nobody is saying the index offence didn’t occur. My concern is whether everything goes back to scratch and the patient is switched to prison to start all over again or continue the sentence (however it is being viewed). I think the hospital sentence must count to avoid disability discrimination and, ironically, if the patient had been sent to prison instead of hospital they would very likely have been released a few years ago. So what is the point? What on earth is going on with all these 37/41 cases - obviously something political