Discharge of transferred prisoners

  • Unrestricted transferred prisoners These are discharged into the community in the same way as an unrestricted hospital order patient would be.
  • Restricted transferred prisoners While they remain restricted patients, they will either be returned to prison or released (if relevant to their type of sentence) by the Parole Board. Determinate-sentence prisoners become unrestricted on their release date.

Transfer without restrictions

These patients are said to be subject to a "notional s37", which is not a term used in the Act. A patient can be subject to a notional s37 in the following cases:

  • Where he is transferred under s47 but without a restriction direction under s49. See s47(3).
  • Where he was transferred under s47/49 but 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 prison sentence and a hospital direction/limitation direction under s45A and subsequently the limitation direction ceases to have effect.

Essentially, therefore, the term refers to a patient who is notionally treated as if subject to a hospital order under s37.

They can be discharged into the community by:

Although they will be released into the community from hospital, their sentence continues after transfer as if they had been released from prison (as does any licence period, during which they can be recalled), if R (Miah) v SSHD [2004] EWHC 2569 (Admin) was correctly decided.

Transfer with restrictions

These patients are subject to one of the following:

  • s47 with a restriction direction under s49, i.e. a restricted transfer direction under "s47/49"; or
  • s48, which usually must come with a s49 restriction direction - "s48/49";
  • A s45A hospital direction while the limitation direction is in force - "s45A".

The Ministry of Justice can remit the patient to prison or release him (s50(1)), or absolutely/conditionally discharge him (s42(2)), at any time.

The Mental Health Tribunal cannot discharge but can make recommendations under s74. They ask the following questions:

Q1. Would the patient, if subject to a hospital/restriction order, be entitled to be absolutely or conditionally discharged by the Tribunal?
Q2. If the patient would have been conditionally discharged, should he continue to be detained in hospital rather than being remitted to prison?

If the answer to Q1 is No, then the patient remains in hospital under the MHA as before.

If the answer to Q1 is Yes then there are various possibilities:

  • For s47/49 and s45A patients only - the patient could be discharged by the Tribunal if the MoJ consents to this within 90 days (s74(2)). This never happens in practice unless the patient is a technical lifer: the 90-day period is therefore mainly "historic" (MoJ, personal correspondence). This ability to discharge does not apply to s48/49 patients (s74(4)).
  • If the answer to Q2 is No (or if Q2 does not apply), then the patient - unless discharged as above - will be remitted to prison (as he no longer requires detention for unsoundness of mind). A determinate sentence prisoner would then be released at the usual time; prisoners would have access to the Parole Board if relevant. The MHA ceases to have effect on return to prison.
  • If the answer to Q2 is also Yes then the patient - unless discharged as above - remains in hospital but will have access to the Parole Board in the same way as if he had been remitted to prison (s74(5A)) and can be released on licence directly from hospital. In the case of lifers, MoJ policy is, where relevant, automatically to refer the case to the PB. Determinate sentence prisoners will become subject to notional s37 on expiry of the restrictions (earliest day of release) although they really ought then to be released. The MHA ceases to have effect on release.

The Tribunal considers detention under Article 5(1)(e) (unsoundness of mind) whereas the PB considers detention under Article 5(1)(a) (conviction by court). See R (P) v SSHD [2003] EWHC 2953 (Admin) (the ECHR does not require joint MHRT/Parole Board hearings; the need for consecutive hearings does not breach Article 5(4)).