Ministry of Justice involvement in restricted cases

The Department of Constitutional Affairs was, in May 2007, renamed the Ministry of Justice and 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 is now part of the Public Protection and Mental Health Group.

The London-based Mental Health Casework Section is responsible for carrying out the Justice Secretary's functions under Part 3 of the Mental Health Act 1983 and the Criminal Procedures Legislation. It is only concerned with restricted patients.

Decisions are made by civil servants (caseworkers and their supervisors). An idea of how they operate can be obtained from reading one of their "bulletins" (see Ministry of Justice#External links). In general they make their decisions having considered written reports received from the treating team and/or recommendations from the Mental Health Review Tribunal, and very occasionally a caseworker might attend a hospital meeting.

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 his 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.

External resources

MoJ/MHT protocol - 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.
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