This was the finding of the Court of Appeal in the recently decided case of R (on the application of DB) v Nottinghamshire Healthcare NHS Trust (the NHS Trust) in which Mills & Reeve acted for the respondent.

The Court of Appeal concluded that a hospital order made under section 37 Mental Health Act 1983 ceased to have effect if the offender was not admitted to the named hospital within 28 days from the date of making the order. In this case the offender was not transferred from prison to the secure hospital unit until 31 days after the making of the order. The Court of Appeal held that as a result he was unlawfully detained in prison for three days and his admission to hospital and subsequent detention was unlawful.

This case was an appeal against the decision of a judge to refuse to allow DB to seek a judicial review of the decision of the NHS trust to detain him under a hospital order.

A hospital order was made on 17 December 2004, after which the offender’s mental health condition deteriorated and he needed a regime of higher security. The matter was remitted back to the criminal court which made the initial order and a further order was made to detain DB at a named secure unit.

However, this second order was made four days after the first order, meaning that DB should have been transferred to the named secure unit by 14 January 2005, 28 days from the date of the first order, rather than by 17 January 2005, 28 days from the date of the second order when he was in fact transferred.

What was not clear to staff at the trust was that the date of the original order was relevant and that the offender should have been transferred to the secure unit within 28 days of that date only. This meant that the offender was detained unlawfully for a period of three days in prison prior to being transferred to the secure unit. Any damages as a result of this judicial review claim would need to be claimed against the prison service who detained DB until he was transferred to the secure unit.

The judges in the Court of Appeal were of the view that it would have been preferable for the hospital order to state the date when the 28 day period would expire to ensure clarity.

It is essential for units admitting patients under a hospital order to ensure that they are complying fully with the provisions of a hospital order. If an order has been varied or amended in any way by the court, it is essential that trust staff contact the court to find out the details of the original order and the date by which the offender should be transferred into the NHS.