Transfers from Prison to Hospital under Sections 47 and 48 of the Mental Health Act 1983
| Author | Michael Butler |
| Pages | 117-125 |
Chapter 12
Transfers from Prison to Hospital under Sections 47 and 48 of the Mental Health Act 1983
12.1 INTRODUCTION
The Department of Health acknowledges that, ‘a large proportion of the prison population will experience some form of mental illness during their period in custody, either because of a relapse in a pre-existing condition or because they become unwell for the first time’ (Good Practice Procedure Guide. The transfer and remission of adult prisoners under s47 and s48 of the Mental Health Act (Department of Health, 2011)). While the Department also suggests that the vast majority who experience mental illness while in prison are successfully treated by prison health services, there are a significant number for whom treatment in prison is not enough. Part III of the MHA 1983 therefore contains provisions which mean that once the criteria for admission to hospital under the Act are met, an application may be made to the SSJ for authorisation to transfer the prisoner to hospital for treatment. In the case of serving prisoners, the transfer will be under section 47; in the case of remand prisoners, the transfer will be under section 48. In either case, the transfer direction is almost certain to be accompanied by a restriction direction under section 49. These provisions are considered in this chapter.
12.2 TRANSFER OF SENTENCED PRISONERS UNDER SECTION 47 OF THE MENTAL HEALTH ACT 1983
12.2.1 Prisoners to whom section 47 of the Mental Health Act 1983 applies
The SSJ’s power of transfer under section 47 of the MHA 1983 applies in respect of a person who is ‘serving a sentence of imprisonment’ (section 47(1)), a term which is confirmed by section 47(5) to include references to prisoners:
118 A Practitioner’s Guide to Mental Health Law
(a) … detained in pursuance of any sentence or order for detention made by a court in criminal proceedings or service disciplinary proceedings (other than an order made in consequence of a finding of insanity or unfitness to stand trial or a sentence of service detention within the meaning of the Armed Forces Act 2006);
(b) … committed to custody under section 115(3) of the Magistrates’ Court Act 1980 (which relates to persons who fail to comply with an order to enter into recognisances to keep the peace or be of good behaviour); and
(c) … committed by a court to a prison or other institution to which the Prison Act 1952 applies in default of payment of any sum adjudged to be paid on his conviction.
12.2.2 Relevant criteria
According to section 47(1) of the MHA 1983, the SSJ may order the transfer of any such prisoner if satisfied:
(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.
12.2.3 Secretary of State for Justice’s discretion
Assuming the relevant criteria are met, transfer is at the discretion of the SSJ, who may direct it ‘if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do’ (section 47(1)). The Department of Health guidance (Good Practice Procedure Guide. The transfer and remission of adult prisoners under s47 and s48 of the Mental Health Act (Department of Health, 2011)) notes that the SSJ in reaching his decision should take account of factors such as (para 3.26):
• any risks associated with the prisoner (escape risk, nature and history of offending, notoriety, victim issues), and the public protection implications
• whether public confidence could be undermined by allowing the transfer
• the court’s intention at the time of sentencing to imprisonment
• the effect of any pending appeal
• whether appropriate treatment can be provided in prison
• the length of time the prisoner still has to serve, behaviour and current security category
• medical opinion, past and present presenting symptoms and level of clinical risk (e.g. actively suicidal, assaultive).
12.2.4 Procedure
The decision regarding transfer will be made by the MHCS. Section 47(1) of the MHA 1983 requires evidence as to the relevant criteria to be provided in the form of reports from at least two RMPs, at least one of whom will need to be approved under section 12 (section 54(1)). Any transfer direction will cease to have effect...
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