10th October 2017
Transfer From Prison With Restrictions - Section 47/49 of the Mental Health Act 1983 - Guide
What Are Sections 47/49?
Section 47 is a direction made by the Ministry of Justice authorising the transfer from prison to hospital of a serving convicted prisoner. Section 49 is a restriction direction which is placed on a patient transferred under section 47. It places restrictions upon the person preventing them from being transferred to a different hospital, granted leave or discharged without the Secretary of State’s consent.
Any serving convicted prisoner can be transferred to hospital if two doctors recommend they should be treated in hospital and the Secretary of State agrees. Whether a restriction is applied is entirely a matter of discretion for the Secretary of State.
How Long Does It Last?
For people with determinate sentences, the Section 49 lasts until their release date from prison. Thereafter the person can be detained only under Section 41(5) if they need to remain in hospital. The Section 41(5) is renewed by their doctor. After the first 6 months, it can be renewed for a further 6 months. After the second six months the section can be renewed annually.
For people with indeterminate sentences the Section 49 does not expire until the person is discharged from detention.
How Does A Person Come Off Section 47/49?
- The doctor responsible can recommend to the Secretary of State that the person be discharged and whether they should remain in hospital pending a review of their position by the Parole Board (for indeterminate sentenced prisoners), or return to prison.
- The First-tier Tribunal (Mental Health) can notify the Ministry of Justice that the person no longer meets the criteria for detention under the Mental Health Act 1983.They can also recommend whether the person should continue to be detained in hospital or returned to prison. If an application is made to the Tribunal for a hearing, reports will be provided by the professionals involved in the person’s detention. At the hearing the procedure is informal but the person does have the right to challenge evidence given by the professionals involved in their detention.
In addition to discharging the person the Mental Health Tribunal can make non-binding recommendations about other aspects of the person’s case. The Tribunal is not required to consider whether or not to make recommendations because they are not binding. There is no way to force the Tribunal to consider evidence about whether a recommendation should be made. Even if recommendations are made there is no way to ensure that they are acted on.
Leave From The Hospital Grounds
A person detained under this section may not leave the hospital grounds without the permission of the Secretary of State, even for a short period of time.
The leave is time restricted and can be subject to conditions such as being accompanied by a nurse. If the time limits or restrictions are not kept the person can be brought back to hospital, by the police if necessary.
It is up to the clinical team to make decisions about leave within the hospital grounds.
A person detained under this section can be given medication against their wishes for the first 3 months from when medication was first given. After that time, except in emergency, if the person still does not consent to medication, the opinion of a second doctor must be sought before it is given.
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