Part III contents
35, 36, 37, 38, 39, 39A, 40, 41, 42, 43, 44, 45, 45A, 45B, 46, 47, 48, 49, 50, 51, 52, 53, 54, 54A, 55
I, II, III, IV, 4A, V, VI, VIII, IX, X, Schedules
Change made by Mental Health Act 2007
Any cases with a hyperlink to this legislation will automatically be added here. There may be other relevant cases without a hyperlink, so please check the mental health case law page.
- R (W) v Dr Larkin (2012) EWHC 556 (Admin), (2012) MHLO 23 — A warrant for the claimant's transfer to prison was issued on the RC's advice in the context of Broadmoor's DSPD unit being about to close on 29/3/12. (1) It is not unlawful for an RC to tick both the 'no longer requires treatment in hospital for mental disorder' and the 'no effective treatment for his disorder can be given in the hospital to which he has been removed' boxes on the s50 proforma. (2) There was no evidence that the views expressed on the form were not those of the RC or that he had subordinated his clinical judgment to expediency or national strategies. (3) No relief would have been granted even had there been unlawfulness: the claimant had to leave Broadmoor, no MSU would then take him, so he had to return to prison in any event.
[The chapter/paragraph numbers here refer to the 2008 versions of the Code of Practice and Reference Guide.]
Further provisions as to prisoners under sentence
50.—(1) Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before [his release date] the Secretary of State is notified by the [responsible clinician], any other [approved clinician] or [the appropriate tribunal] that that person no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital to which he has been removed, the Secretary of State may—
- (a) by warrant direct that he be remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed; or
- (b) exercise any power of releasing him on licence or discharging him under supervision which would have been exercisable if he had been remitted to such a prison or institution as aforesaid,
and on his arrival in the prison or other institution or, as the case may be, his release or discharge as aforesaid, the transfer direction and the restriction direction shall cease to have effect.
[(2) A restriction direction in the case of a person serving a sentence of imprisonment shall cease to have effect, if it has not previously done so, on his release date.
(3) In this section, references to a person's release date are to the day (if any) on which he would be entitled to be released (whether unconditionally or on licence) from any prison or other institution in which he might have been detained if the transfer direction had not been given; and in determining that day there shall be disregarded-
- (a) any powers that would be exercisable by the Parole Board if he were detained in such a prison or other institution, and
- (b) any practice of the Secretary of State in relation to the early release under discretionary powers of persons detained in such a prison or other institution.]
(4) For the purposes of section 49(2) of the Prison Act 1952 (which provides for discounting from the sentences of certain prisoners periods while they are unlawfully at large) a patient who, having been transferred in pursuance of a transfer direction from any suth institution as is referred to in that section, is at large in circumstances in which he is liable to be taken into custody under any provision of this Act, shall be treated as unlawfully at large and absent from that institution.
[(5) The preceding provisions of this section shall have effect as if—
- (a) the reference in subsection (1) to a transfer direction and a restriction direction having been given in respect of a person serving a sentence of imprisonment included a reference to a hospital direction and a limitation direction having been given in respect of a person sentenced to imprisonment;
- (b) the reference in subsection (2) to a restriction direction included a reference to a limitation direction; and
- (c) references in subsections (3) and (4) to a transfer direction included references to a hospital direction.]
- ↑ 1.0 1.1 Criminal Justice Act 2003
- ↑ 2.0 2.1 Mental Health Act 2007 s11; Mental Health Act 2007 (Commencement No.7 and Transitional Provisions) Order 2008 wef 3/11/08
- ↑ Transfer of Tribunal Functions Order 2008 wef 3/11/08
- ↑ Crime and Disorder Act 1998
- ↑ 5.0 5.1 Crime (Sentences) Act 1997