Sections 47, 48 and 49: transferred prisoners

(Redirected from S47/49)

These patients are subject to section 47 alone ("notional s37"), s47/49, or s48/49.

Prison sentences

You will need to get used to the different types of prison sentence regimes, which have an impact on the operation of the Mental Health Act and the effects of Tribunal decisions:

  • Indeterminate sentences, namely life sentences, Imprisonment for Public Protection (IPP) and Detention for Public Protection (DPP, the IPP equivalent for under 18s). These begin with a minimum term (sometimes still called the tariff) during which the prisoner cannot be released, followed by a period during which the prisoner may be released by the Parole Board if it is satisfied that detention is no longer necessary in order to protect the public from serious harm. IPP/DPP sentences can no longer be given but some prisoners are still subject to them.
  • Determinate sentences. With some exceptions, if a person is given a determinate prison sentence he only serves half of it in prison, and the second half on licence. The exceptions include offenders of particular concern (eligible for parole at half-way point, one-year licence extension), dangerous offenders subject to extended sentences (eligible for parole at the two-thirds point, and extended licence period), and terrorists (eligible for parole at the two-thirds point). A breach of licence may lead to recall to prison. Some prisoners are entitled to early release on a home detention curfew.
  • For the purposes of the Mental Health Act, determinate-sentence prisoners have a ‘release date’ on which any restrictions will cease, but indeterminate-sentence prisoners have no ‘release date’ so they will remain as restricted patients (even past their tariff) for as long as they are detained under the MHA.

The s47 and s48 transfer powers

A sentenced prisoner can be transferred to hospital by the Secretary of State under s47 if the criteria in s47(1) are met:

(a) that the said person is suffering from mental disorder; and

(b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and

(c) that appropriate medical treatment is available for him

Under s47(3), these patients are treated as if subject to a s37 hospital order – so s47 on its own (without restrictions) is often informally called a ‘notional s37’. See Notional s37 for details.

Under section 48 the following categories of unconvicted prisoner, most commonly those on remand, may be transferred to hospital by the Secretary of State:

(a) persons detained in a prison or remand centre, not being persons serving a sentence of imprisonment or persons falling within the following paragraphs of this subsection;

(b) persons remanded in custody by a magistrates’ court;

(c) civil prisoners, that is to say, persons committed by a court to prison for a limited term, who are not persons falling to be dealt with under section 47 above;

(d) persons detained under the Immigration Act 1971 or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State).

The following are the criteria for s48:

(a) that person is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and

(b) he is in urgent need of such treatment; and

(c) appropriate medical treatment is available for him

Patients detained under s47 or s48 are subject to the Part 4 ‘Consent to Treatment’ provisions (in contrast with the situation in prison, where treatment cannot be given without consent).

Discharge (unrestricted patients)

Routes to discharge
  • Mental Health Tribunal
  • Hospital managers’ hearing
  • Responsible Clinician
  • No NR power to discharge
Tribunal eligibility
  • During first six months (unlike hospital orders made by court under s37); during second six months; during each 12-month period thereafter (s69(2)(b))
  • Nearest relative: as for patient (s69(1) applied by s55(4))
Types of discharge
  • Full, immediate discharge
  • Discharge deferred to future date (by Tribunal)
  • Community Treatment Order (by RC)
  • Criminal case ends (s48)
  • Discretionary reference by Secretary of State for Health and Social Care
  • No six-month reference by hospital managers
  • Three-year reference by hospital managers

These patients can be discharged from section in the same way as normal s37 hospital order patients.

They cannot be returned to prison, so are discharged into the community.

Although they will be released into the community from hospital, their sentence and licence period continues after transfer as if they had been released from prison (according to R (Miah) v SSHD [2004] EWHC 2569 (Admin)M).

The s49 restriction direction

A ‘restriction direction’ under s49 is made alongside s47 or s48, and imposes the same restrictions as those imposed by s41 (s49(2)). The sections are then called either s47/49 or s48/49.

Restricted transferred prisoners can be returned to prison to serve the remainder of their sentence (in contrast with unrestricted transferred prisoners, who are discharged straight into the community).

The Secretary of State must (by s49(a)) impose a restriction direction on remand prisoners:

  • Section 48(2)(a) – "persons detained in a prison or remand centre, not being persons serving a sentence of imprisonment or persons falling within the following paragraphs of this subsection".
  • Section 48(2)(b) – "persons remanded in custody by a magistrates' court".

The Secretary of State ‘if he thinks fit, may’ impose a restriction direction in the following cases:

  • Section 47 – sentenced. The Secretary of State’s policy in relation to sentenced prisoners was found to be lawful in R (Thompson) v SSHD [2003] EWHC 538 (Admin)M: ‘Our normal policy is always to make a restriction direction unless it is proposed to transfer the prisoner to hospital within days of his release date and the nature of the offence suggests that restrictions are unnecessary for the protection of the public from serious harm over that short period.’
  • Section 48(2)(c) – civil.
  • Section 48(2)(d) – immigration.

Discharge (restricted patients)

For the duration of the restrictions, the patient’s route to discharge from detention to the community will be via the criminal justice system rather than the Tribunal, although the Tribunal does play a part.

Routes to discharge from s47/49 or s48/49

(NB this is different to eventual release)

  • Restrictions ceasing (see below)
  • Ministry of Justice (see below)
  • Mental Health Tribunal (see below)
  • Criminal case ending (s48/49 only)
Tribunal eligibility
  • One application during first six-month period; once during subsequent six-month period; once during each annual period thereafter
  • No nearest relative
  • Discretionary reference by Secretary of State for Justice
  • Three-year reference by Secretary of State for Justice

Notional hospital order commencing upon restrictions ceasing

The restrictions cease on the prisoner’s release date, and then the patient is treated as if he had been detained under s47 on that date (including for Tribunal eligibility calculations).

Note that indeterminate sentence prisoners do not have a ‘release date’ and so they will always be subject to restrictions (and therefore will never become notional s37 patients).

Return to prison or release by Ministry of Justice

In s47/49 cases, where ‘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’ he may remit the patient back to prison or release him (s50(1)). Both reasons may apply simultaneously (R (W) v Dr Larkin [2012] EWHC 556 (Admin)M, [2012] MHLO 23).

Similar (but different) provisions apply to the various categories of s48/49 case (ss51-53).

The Ministry of Justice has the power absolutely or conditionally to discharge restricted transferred prisoners under s42, but since 1985 in relation to transferred lifers it has been government policy to release under s50 instead once the Parole Board has directed release (see MHA Manual commentary). The same appears to apply other transferred prisoners.

Tribunal procedure

The Mental Health Tribunal cannot discharge but can make notifications/recommendations under s74. It is worth reading the text of the section, but the key to understanding this complicated provision is the knowledge (MoJ, personal correspondence, April 2009) that:

  • Section 74 refers to the MoJ’s power to discharge conditionally or absolutely – but the MoJ will generally not agree to this.
  • The exceptions to this are ‘technical lifers’, and possibly compassionate grounds for a patient ‘at death’s door’. These cases are so rare we can usually ignore them.

The Tribunal ask the following questions:

  • Q1. Would the patient, if subject to a hospital and restriction order, be entitled to be either 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:

  • If the answer to Q2 is No (or if Q2 does not apply), then the patient 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 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. 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.
  • [For s47/49 and s45A patients only (in theory) – in practice for technical lifers only – the patient could be discharged by the Tribunal if the MoJ consents to this within 90 days (s74(2)).]

The Tribunal considers detention under Article 5(1)(e) (unsoundness of mind) whereas the Parole Board considers detention under Article 5(1)(a) (conviction by court). The ECHR does not require joint Tribunal/Parole Board hearings; the need for consecutive hearings does not necessarily breach Article 5(4)) (R (P) v SSHD [2003] EWHC 2953 (Admin)M). In R (LV) v SSJ [2014] EWHC 1495 (Admin)M the claimant unsuccessfully argued that the delay in her case breached Article 5(4) (the Tribunal was on 12/12/11, the dossier reached the Parole Board on 29/3/12 and the PB hearing was on 12/3/13). The case was settled for £2,500.

In the s48/49 terrorism cases where release into the community was an impossibility, the correct approach for the Tribunal was to proceed on the basis that ‘discharge’ would be to prison as this was the practical reality (R (Abu-Rideh) v MHRT [2004] EWHC 1999 (Admin)M).

When the Tribunal hearing will be followed by a Parole Board hearing, the Tribunal must consider hypothetical discharge under the Mental Health Act 1983 rather than likely Parole Board conditions when considering whether detention is necessary (AC v Partnerships in Care Ltd [2012] UKUT 450 (AAC)M).


The same considerations apply as to s37/41 patients (see Section 37/41: hospital order with restrictions).


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