Ministry of Justice
The London-based Mental Health Casework Section of the MOJ is responsible for carrying out the Justice Secretary's functions under Part 3 of the Mental Health Act 1983 and related legislation. It is only concerned with restricted patients. Decisions are made by civil servants (caseworkers and their supervisors). In general they make their decisions having considered written reports received from the treating team and/or recommendations from the Mental Health Tribunal, and very occasionally a caseworker might attend a hospital meeting.
The Department of Constitutional Affairs was, in May 2007, renamed the Ministry of Justice. The Ministry of Justice took over, amongst other things, the Home Office's Mental Health Unit.
In November 2009 the Mental Health Unit became the Mental Health Casework Section; along with the Public Protection Casework Section and other sections, it became part of the Public Protection and Mental Health Group, which later became the Safer Custody and Public Protection Group. In 2017/18 it is called the HM Prison and Probation Service (HMPPS) Mental Health Casework Section.
Role in restricted cases
The following actions require the Secretary of State's consent:
- Leave of absence under s17. Note that permission is not required for hospital ground leave unless a specific hospital unit/ward has been specified in the hospital order (or equivalent) which led to the admission: see Power to specify hospital units for details.
- Transfer to another hospital under s19.
- Discharge from section under s23 (although the MHT are empowered to discharge without consent).
The following are some of the Secretary of State's powers:
- To remove the restrictions (s42(1)), leaving the patient as if he had been made an unrestricted patient on the date the restrictions ceased (s41(5)).
- To grant either a conditional discharge or an absolute discharge (s42(2)).
- To recall a conditionally discharged patient to hospital so that he becomes a restricted patient once again (s42(3)).
- To transfer a serving prisoner from prison to a hospital (s47), with or without restrictions (s49), and to transfer him back to prison when appropriate.
Other MoJ responsibilities
The Ministry of Justice sponsors the following:
- Her Majesty's Courts and Tribunals Service (executive agency), including the Mental Health Tribunal
- The Office of the Public Guardian (executive agency)
- The Parole Board (executive non-departmental public body)
- The National Offender Management Service (executive agency), including the MHCS
Main page on their website
- Gov.uk website: Mental health casework section contact list
- Contact details appear on this MHLO page: Contact:Ministry of Justice - Mental Health Casework Section
- HMCTS, 'Guidance for the conduct of cases before the restricted patient panel' (29/3/16). This supersedes any previous versions (including the version marked "April 2009" but last edited in July 2009). This document sets out the responsibilities of the MoJ and MHT in the Tribunal procedure. For instance, the protocol provides that no MoJ comments are required in the following circumstances: (1) for initial reports, the MoJ have had the reports for 21 days; (2) for subsequent reports, including addendum and independent reports, the MoJ have received the reports at all.
Leave of absence
- NOMS, 'Mental Health Casework Section: Section 17 - Leave of Absence' (22/2/17)†. This replaces the 22/4/14 version (PDF, Word).
- Ministry of Justice, 'Change in presumption: Informing victims of restricted mental health patients about community leave, from 22 April 2014' (letter to MHCS Stakeholders, 22/4/14). This letter begins: "As a result of a Ministerial commitment, as of 22 April 2014, victims of restricted mentally disordered offenders, who have opted in to the Victim Contact Scheme, will be told if permission for community leave is granted by the Secretary of State unless there are exceptional reasons why they should not be told."
- General consent granted for medical leave. Natalya O'Prey, 'Authority to use medical leave' (Dear Colleague letter from MHCS to all hospitals detaining restricted patients, 18/4/19) — The Secretary of State for Justice has provided all responsible clinicians at any hospital with general consent to exercise their power to grant leave for medical treatment. This general consent does not apply to (a) patients who already have specifically-agreed terms for medical leave; or (b) "high profile" cases (i.e. those which merit attention from a senior manager at all stages). The precise terms are set out three annexes: (A) any restricted patient at high secure hospitals; (B) section 45A, 47/49, and 48/49 patients in other hospitals; (C) section 37/41 or equivalent in other hospitals. This page was removed from the Gov.uk "Working with restricted patients" collection of documents on 5/3/21 but remained on the Gov.uk website.
- Medical leave application form. HMPPS, 'Medical Leave application for high profile restricted patients' (3/5/19) — This updated form is required when applying for permission to grant medical leave to a high profile patient.
- Leave application form. HMPPS, 'Leave Application for Restricted Patients' (3/5/19) — This updated form is for all leave except medical leave for high profile cases (for which there is a separate form).
Conditions of discharge
- Colin Harnett, 'Changing discharge conditions - residence' (Dear Colleague letter from Head of Mental Health Casework Section, 17/12/15). In response to a case in which the MOJ had not closely managed a patient's movements (it had not registered a change of address), the following policy will apply from 4/1/16: (1) All conditionally-discharged patients will have a condition giving an actual residence address, and RCs will not have a discretion to move patients without providing 14 days' notice; (2) If the tribunal does not specify an address the MOJ will add one; (3) Existing conditions will be re-examined on receipt of conditionally-discharged patient reports and conditions may be amended (to add an address or remove the RC's discretion to move the patient); (4) Discharges by the MOJ will also accord with this policy; (5) Dialogue with the MOJ before the 14-day point is encouraged.
- Conditional discharge/DOL guidance. HM Prison and Probation Service, 'Guidance: Discharge conditions that amount to deprivation of liberty' (January 2019) — The aim of this this operational policy is to ensure that, where appropriate, restricted patients can continue their rehabilitation in a community-based setting following the Supreme Court's decision in SSJ v MM  UKSC 60. For patients who lack capacity to consent to deprivation of liberty and the risk is to themselves, the solution is to allow conditional discharge with deprivation of liberty authorised under the Mental Capacity Act 2005. For patients who lack capacity and the risk is to others, and also for patients who have capacity, the solution, if further treatment and rehabilitation could be given in a community setting, is to consider long-term s17 escorted leave (use of the inherent jurisdiction is not considered to be the correct approach). The leave of absence would be for an initial period of up to 12 months. For patients already on conditional discharge, the following options will be considered: (a) variation of conditions; (b) recall, with or without instantaneous grant of escorted leave to the current placement; (c) absolute discharge; (d) referral to tribunal. The policy mentions reassessing patients who present risks to themselves in order to see if they lack capacity after all, which may an MCA authorisation possible.
- NOMS and NHS England, 'Working with personality disordered offenders: A practitioners guide' (second edition, September 2015)†. This replaces the January 2011 version.
- Ministry of Justice, 'Memorandum to the Justice Select Committee: Post-Legislative Assessment of the Mental Capacity Act 2005' (Cm 7955, 28/10/10)
- MHCS Newsletter 29/4/10 - deals with absolute discharge and the transfer to hospital of prisoners who are close to the end of their sentence
- Ministry of Justice, 'Unified courts and tribunals service' (24/3/10) (Internet Archive link) - "The Chancellor of the Exchequer announced in the Budget today that the Ministry of Justice will be moving to bring together Her Majesty’s Courts Service and the Tribunals Service into a new, single organisation."
- Ministry of Justice, 'Mental health courts featured on Radio 4' (23/9/10) (Internet Archive link)
- Ministry of Justice, 'Access to Justice: a review of the existing evidence of the experiences of adults with mental health problems' (Ministry of Justice Research Series 6/09, May 2009) (Internet Archive link)
- Older links are available here: Ministry of Justice links archive