The term 'notional s37' is not mentioned in the statute, but is often used informally in the following cases:
- Where a patient is transferred under s47 but without a restriction direction under s49. See s47(3).
- Where he was transferred under s47/49 but, on the release date, the restriction direction has ceased to have effect, he will be left with the s47 on its own and the notional s37 begins when the restrictions cease.
- The same applies where he was given a determinate prison sentence and a hospital direction/limitation direction under s45A and at the release date the limitation direction ceases to have effect
- Where the patient was detained under s37/41 with a time-limited restriction order and the restrictions have ceased. Note that since the Mental Health Act 2007 changes on 3/11/08 all new restriction orders must be of indefinite duration.
- The admission order, without restrictions, under the old CPIA 1964 s5 is sometimes also called a notional 37.
Generally, therefore, the term refers to a patient who is notionally treated as if subject to a hospital order under s37.
The 'release date' is the date when the prisoner would be 'entitled to be released' from prison if he were still there (s50(3)). Indeterminate-sentence prisoners do not have a release date; for determinate-sentence prisoners it is the earliest date of release (EDR), which depends on the type of sentence.
A patient subject to a notional s37 (except those under an admission order) can apply to the Tribunal in the first six months. Those subject to a real s37 hospital order cannot. The difference is said to be because the latter have recently had their case considered by a court, whereas the former are under their current status because of an administrative action or the passage of time (although until s37/41 patients were given the right to apply to the Tribunal, s37 patients could apply during the first six months).
In other respects, the discharge routes are the same as for s37 hospital orders.