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Mental health act 1983 mentally disordered offenders

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  • 1. PART III OF THE MENTAL HEALTH ACTProfessor Anselm EldergillSolicitor; President, Mental Health Lawyers Association; President, Institute of Mental Health ActPractitioners; Legal Director of the African Regional Council on Mental Health.3 Powers CourtTwickenhamMiddlesex TW1 2JJ 1
  • 2. SECTION 35 — REMAND FOR A REPORTSection 35 empowers a criminal court to remand an accused person tohospital for the preparation of a medical report.Although section 35 refers to assessment, it is not the court equivalent of asection 2 application. The purpose of section 35 is limited to obtaining areport on someone who is merely suspected, on the basis of a single medicalopinion, to suffer from a form of mental disorder.Because nothing more than a reasonable suspicion has to be established, theorder does not authorise treatment without consent.CRITERIAThe court:1. is satisfied on the evidence of a section 12 approved doctor that there is reason to suspect that the accused is suffering from mental disorder;2. is of the opinion that it would be impracticable for a report on her/his mental condition to be made if s/he is remanded on bail;3. is satisfied that arrangements have been made for the accused’s admission to the named hospital within 7 days beginning with the date of the order.In addition:4. The defendant must be ‘an accused person’, as defined by section 35(2).EFFECT OF SECTION 35A constable or other person directed by the court must convey the accused tothe named hospital within seven days. The managers of the hospital mustthen detain her/him in accordance with the provisions of section 35. Pendingadmission within seven days, the court may authorise the accused’s detentionin a place of safety (usually a prison).Part II of the ActPart II of the Act does not apply to persons detained under sections 35. Thepatient’s consultant therefore has no authority to grant leave of absence; normay such patients be removed or transferred to another hospital undersection 19, or discharged from liability to detention under section 23.Consent to treatmentPart IV of the Act does not apply to persons remanded to hospital undersection 35. Such persons may only be given treatment without their consent ifthis is lawful under some other statutory power or under the common law. 2
  • 3. Effect on other orders, etcA remand under section 35 does not bring to an end any pre-existingapplication or order made under the Mental Health Act, e.g. a section 2application or a section 37 order.Duration of the remandAn accused person may not be remanded under section 35 for more than 28days at a time.However, a court may further remand the accused if it appears to it, on theevidence of the doctor preparing the report, that a further remand isnecessary for completing the assessment of the accused’s mental condition.The power to further remand may be exercised without the accused beingbrought before the court if their counsel or solicitor is given an opportunity ofbeing heard.A person may not be remanded under section 35 for more than 12 weeks inall.Termination of the remandThe court may at any time terminate a remand under section 35 if it appearsto the court that it is appropriate to do so.AbscondersThe Act expressly provides that the court may terminate the remand uponapplication by the accused or upon their being brought before the courthaving absconded from the specified hospital.If an accused absconds, s/he may be arrested without warrant by anyconstable and shall then be brought as soon as practicable before the courtthat remanded her/him.The court may then terminate the remand, and deal with the patient in anyway in which it could have dealt with her/him if s/he had not been remandedunder the section. The alternative is usually to remand in custody.Challenging detention under section 35A person remanded under section 35 has a statutory right to obtain at theirown expense an independent report from a doctor or approved clinician oftheir choice, and to apply to the court for the remand to be terminated. Inpractice, the cost of such a report is likely to be met by the legal aid fund at nocost to the accused person.Mental Health Review TribunalsA person detained under section 35 may apply to the court for the remand tobe terminated but has no right to apply to a tribunal. This is because the courtthat remanded her/him retains jurisdiction. 3
  • 4. POINTS TO NOTE1. An ‘accused person’ is any person who is awaiting trial before the court for an offence punishable with imprisonment or who has been arraigned before the court for such an offence and has not yet been sentenced or otherwise dealt with for the offence on which he has been arraigned" other than a person who has been convicted of an offence the sentence for which is fixed by law.2. The purpose of section 35 is to enable a court to obtain a medical report on a defendant whose case it may dispose of, in particular to assist it in determining whether the medical grounds for making a hospital order are satisfied.3. A magistrates’ court cannot make such an order in respect of a person who is charged with an indictable only offence (a very serious offence that can only be tried and sentenced in the Crown Court).4. Furthermore, a magistrates’ court cannot remand under section 35 a person who is accused of a less serious offence unless the accused consents to the order being made or s/he has been convicted by the court or the court is satisfied s/he did the act or made the omission charged.5. No order may be made unless the court has first received evidence that arrangements have been made for the accused’s admission to hospital within seven days. There is no power to make an order contingent upon a bed becoming available during that period.6. Section 35 is only available in cases where the court is of the opinion that it would be ‘impracticable’ for a report on the accused’s mental condition to be prepared if s/he were remanded on bail. It is not available simply on the civil admission grounds that the patient ought to be admitted to hospital in the interests of her/his own health or safety. 4
  • 5. SECTION 36 — REMAND FOR TREATMENTThe Crown Court may remand a defendant to hospital for treatment in thecircumstances set out in section 36.CRITERIAThe criteria are that: 1. Bail is not appropriate. 2. The court is satisfied, on the evidence of two doctors, one of whom is approved under section 12, that (a) the accused 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) appropriate medical treatment is available for him. 3. The defendant is ‘an accused person’ within the meaning of section 36(2). 4. The court is satisfied, on the evidence of the approved clinician who would have overall responsibility for his case or of some other person representing the hospital managers, that arrangements have been made for her/his admission to that hospital within seven days.EFFECT OF SECTION 36The effect of a remand under section 36 is similar to that of a remand undersection 35. However, section 36 authorises treatment without consent.Conveyance and detentionA constable or other person directed by the court must convey the accused tothe named hospital within seven days. The managers of the hospital mustthen detain her/him in accordance with the provisions of section 36.Pending admission within seven days, the court may authorise the accused’sdetention in a place of safety (usually a prison).Part II of the ActPart II of the Act does not apply to persons detained in hospital under section36.Consequently, the patient’s consultant has no authority to grant leave ofabsence. Nor may such patients be removed or transferred to another hospitalunder section 19, or discharged from liability to detention under section 23.Consent to treatmentPersons detained in hospital under section 36 are subject to Part IV of the Actand may be treated without their consent in the circumstances set out there. 5
  • 6. Effect on other orders, etcA remand under section 36 does not bring to an end any pre-existingapplication or order made under the Mental Health Act, e.g. a section 3application or a section 37 order.Duration of the remandAn accused person may not be remanded under section 36 for more than 28days at a time.However, a court may further remand the accused if it appears, on theevidence of the responsible clinician, that a further remand is warranted.The power to further remand may be exercised without the accused beingbrought before the court if her/his counsel or solicitor is given an opportunityof being heard.A person may not be remanded under section 36 for more than 12 weeks inall.Termination of the remandThe court may at any time terminate a remand under section 36 if it appearsto the court that it is "appropriate" to do so.AbscondersThe Act expressly provides that the court may terminate the remand uponapplication by the accused, or upon her/him being brought before the courthaving absconded from the specified hospital.If an accused absconds from the named hospital, s/he may be arrestedwithout warrant by any constable and shall then be brought as soon aspracticable before the court that remanded them. The court may terminatethe remand and deal with the patient in any way in which it could have dealtwith them if s/he had not been remanded under the section.Challenging detention under section 36A person remanded under section 36 has a statutory right to obtain at theirown expense an independent report from a doctor or approved clinician oftheir choice and to apply to the court on the basis of it for his remand to beterminated. In practice, the cost of such a report is likely to be met by the legalaid fund at no cost to the accused person.Mental Health Review TribunalsA person detained under section 36 may apply to the court for the remand tobe terminated but has no right to apply to a tribunal. This is because the courtthat remanded her/him retains jurisdiction. 6
  • 7. POINTS TO NOTE1. The section 36 power is exercisable only by the Crown Court.2. Prior to 3 November 2008, the power applied only to persons suffering from mental illness and severe mental impairment. It did not extend to persons suffering from psychopathic disorder or mental impairment.3. An ‘accused person’ is ‘any person who is in custody awaiting trial before the Crown Court for an offence punishable with imprisonment (other than an offence the sentence for which is fixed by law) or who at any time before sentence is in custody in the course of a trial before that court for such an offence.’4. A person charged with murder, but not convicted of it, may be remanded by the Crown Court to a hospital for the preparation of a report under section 35 but he may not be remanded there for treatment under section 36. 7
  • 8. SECTION 38 — INTERIM HOSPITAL ORDERBefore making a hospital order or direction, or dealing with an offender insome other way, the Crown Court or a magistrates’ court may make an‘interim hospital order’ authorising admission to hospital.The purpose of the power is to enable the court to determine whether adefendant who suffers from mental disorder satisfies the criteria for making ahospital order or, more generally, whether such a disposal is appropriate.CRITERIAThe following conditions must be satisfied:1. The person has been convicted before the Crown Court of an offence punishable with imprisonment, other than an offence (such as murder) the sentence for which is fixed by law, or by a magistrates’ court of an offence punishable by it on conviction with imprisonment.2. The court is satisfied, on the evidence of two doctors, one of whom is approved under section 12, that ‘the offender is suffering from mental disorder and that there is reason to suppose that the mental disorder from which the offender is suffering is such that it may be appropriate for a hospital order to be made in his case.’3. The court is further satisfied, on the evidence of the approved clinician who would have overall responsibility for his case, or of some other person representing the hospital managers, that arrangements have been made for admission to that hospital within 28 days.EFFECT OF SECTION 38Where an interim hospital order is made, a constable or any other personnamed by the court is required to convey the offender to the hospital specifiedin the order within 28 days.Authority for the patient’s detentionAn interim hospital order authorises the managers of the named hospital toadmit the patient at any time within the 28 day period and thereafter todetain her/him in accordance with the provisions of section 38.Application of Part II of the ActThe provisions in Part II of the Act do not apply. Consequently, theresponsible clinician has no authority to grant leave of absence. Nor may suchpatients be removed or transferred to another hospital under section 19, ordischarged from liability to detention under section 23. 8
  • 9. Consent to treatmentPersons detained in hospital under an interim hospital order are subject toPart IV of the Act. They may therefore be given treatment without theirconsent in the circumstances set out in sections 56 to 63.Effect on previous applications and ordersThe making of an interim hospital order does not bring to an end any pre-existing application, hospital order or guardianship order which was in force.Duration and further ordersAn interim hospital order may be in force for such period, not exceeding 12weeks, as the court specifies when making the order.The order may then be renewed for further periods of not more than 28 daysat a time if it appears to the court, on the evidence of the responsible clinician,that the order’s continuation is warranted. However, it may not continue inforce for more than 12 months in all.The power of renewing an interim hospital order may be exercised withoutthe offender being brought before the court if her/his counsel or solicitor isgiven an opportunity of being heard.Termination of the interim hospital orderThe court is required to terminate an interim hospital order if it makes ahospital order or decides, after considering the evidence of the responsibleclinician, to deal with the offender in some other way.AbscondersIf an offender absconds from hospital, s/he may be arrested without warrantby a constable and shall, after being arrested, be brought as soon aspracticable before the court that made the order. The court may thereuponterminate the order and deal with her/him in any way in which it could havedealt with her/him if no such order had been made.The making of a hospital orderWhere an interim hospital order is in force, the court may make a hospitalorder without the offender being brought before the court if s/he isrepresented by counsel or a solicitor and her/his advocate is given anopportunity of being heard.Challenging detention under section 38In contrast to section 35 or 36, the offender has no statutory right to apply tothe court for the order’s termination on the basis of an independent medicalreport. Rather, an interim hospital order is a sentence for the purposes of theappeal against sentence provisions in the Criminal Appeal Act 1968. 9
  • 10. Section 38 and Mental Health Review TribunalsBecause the offender’s case has not been disposed of by the court, s/he has noright to apply to a tribunal for his discharge. 10
  • 11. SECTION 37 — GUARDIANSHIP ORDERSUnder section 37, the Crown Court or a magistrates’ court may place a personunder the guardianship of a local social services authority or of such personapproved by a local social services authority as may be specified.CRITERIAThe following conditions apply in all cases:1. Subject to limited exceptions, the accused has been convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment or has been convicted by the Crown Court of an imprisonable offence (other than one the sentence for which is fixed by law or which requires the imposition of a custodial sentence).2. The court is satisfied, on the written or oral evidence of two doctors, one of whom is approved under section 12, that the offender is suffering from mental disorder of a nature or degree which warrants his reception into guardianship under the Act.3. The court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case before it is by means of a guardianship order.4. The offender is at least sixteen years of age.5. The court is satisfied that that the proposed guardian is willing to receive the offender into guardianship and, by inference, that any proposed private guardian has been approved by the local social services authority.The need for a convictionA magistrates court may make a guardianship order without convicting theaccused if s/he suffers from mental disorder, the conditions specified aboveare met, and the court is satisfied that s/he did the act or made the omissioncharged.The Crown Court may only make an order in respect of a convicted personunless s/he has been found unfit to plead or not guilty by reason of insanity.EFFECT OF THE ORDERA guardianship order confers on the guardian the same powers as a guardian-ship application accepted under Part II.The patient is treated as if on the day of the court’s order s/he was receivedinto guardianship following a guardianship application made under section 7.The only substantive differences are that: 11
  • 12. 1. The patients statutory nearest relative has no power to discharge a guardianship order made under Part III.2. By way of compensation, the nearest relative may apply to a tribunal for the patient’s discharge during the year beginning with the date of the order, and make one further application each year the order remains in force.3. If a patient subject to a guardianship order is later transferred to hospital under section 19, the transfer takes effect as if a hospital order (rather than a section 3 application) had been imposed by the court on the date of the original guardianship order.Duration, discharge and renewalAs with section 7 applications, the guardianship requires periodic renewal,and lapses unless renewed at successive intervals of 6 months, 12 months andannually thereafter. These periods are calculated from the date of the order.Apart from the fact that the patient’s nearest relative has no power to orderdischarge under section 23, the order may be discharged in the same way as aguardianship application made under Part II.Effect on previous applications and ordersThe making of a guardianship order has the consequence that any Part IIapplication, hospital order (without restrictions) or guardianship order thatwas previously in force ceases to have effect.Challenging guardianship ordersThe patient may appeal against the court’s sentence in the usual way. The Actexpressly provides that, where the order was made by magistrates otherwisethan upon conviction, the patient has the same right of appeal against theorder as if it had been made following her/his conviction.Mental Health Review TribunalsThe patient’s right to apply to a tribunal at periodic intervals are the same asthose of a patient received into guardianship under Part II. The patient maymake an application during the six month period beginning with the date ofthe order and, thereafter, make a further application during each period forwhich the guardianship is renewed. The nearest relative’s periodic rights ofapplication have already been described (see above). 12
  • 13. SECTION 37 — HOSPITAL ORDERSUnder section 37, a court may dispose of a case by ordering a defendant’sadmission to, and detention in, the hospital specified in its order.CRITERIAThe following requirements must be met before a hospital order may be madeunder section 37:1. Subject to limited exceptions, the accused has been convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment or has been convicted by the Crown Court of an imprisonable offence, other than one the sentence for which is either fixed by law (e.g. murder).2. The court is satisfied, on the evidence of two doctors, one of whom is approved under section 12, that (a) the offender is suffering from mental disorder of a nature or degree which makes it appropriate for her/him to be detained in a hospital for medical treatment, and (b) appropriate medical treatment is available for him;3. The court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with her/him, that the most suitable method of disposing of the case is by means of a hospital order.4. The court is satisfied, on the evidence of the approved clinician who would have overall responsibility for his case, or some other representative of the hospital managers, that arrangements have been made for the patient’s admission to the named hospital within 28 days.The need for a convictionA magistrates court’s power to make a hospital order without convicting aperson suffering from mental disorder is the same as its power to make aguardianship order in such circumstances (see xxx).The Crown Court may make such an order without convicting the accused if:1. The accused has been removed to hospital by the Secretary of State under section 48 and the conditions specified in section 51(5) and (6) are satisfied; or2. The accused has been found unfit to plead or not guilty of the offence charged by reason of insanity. 13
  • 14. EFFECT OF AN ORDERThe making of a hospital order authorises a constable, an approved mentalhealth professional or any other person directed by the court to convey thepatient to the specified hospital within a period of 28 days.The court may give directions for the patient’s conveyance to, and detentionin, a place of safety pending their admission to the specified hospital.Emergencies and other special circumstancesIf it appears to the Secretary of State that, ‘by reason of an emergency or otherspecial circumstances,’ it is not practicable for the patient to be admitted tothe named hospital within 28 days, s/he may give directions for the patientsadmission to such other hospital as appears to be appropriate.Authority to detain the patientA hospital order authorises the managers of the hospital named in the orderto admit the patient at any time within the 28 day period and thereafter todetain her/him in accordance with the provisions of the Act.Effect on previous applications and ordersThe making of a guardianship order has the consequence that any Part IIapplication, hospital order (without restrictions) or guardianship order thatwas previously in force in respect of the patient ceases to have effect.Application of Part II of the ActThe patient is treated as if on the date of the court’s order s/he was admittedto hospital under section 3. The only substantive differences are that:1. The patient has no right to apply to a tribunal during the six month period beginning with the date of the order.2. The patients statutory nearest relative has no power to discharge the hospital order.3. By way of compensation, the nearest relative may instead apply to a tribunal for the patient’s discharge during the second six-month period beginning with the date of the order, and thereafter make one further tribunal application during each subsequent 12 month period.4. If the patient is later transferred into guardianship under section 19, the transfer takes effect as if a guardianship order, rather than a guardianship application, had been made by the court on the date of its original order.Duration, discharge and renewalAs with section 3 applications, the authority to detain the patient requiresperiodic renewal, and lapses unless renewed at successive periods of 6months, 12 months and annually thereafter. 14
  • 15. These periods commence from the date of the order, not the date of thepatient’s admission to the named hospital.Apart from the fact that the patient’s nearest relative has no power to make anorder for discharge under section 23, the order may be discharged in the sameway as a section 3 application.Consent to treatmentThe consent to treatment provisions in Part IV apply to patients detainedunder a hospital order. However, when calculating the three month statutoryperiod for the purposes of section 58, any medication administered while thepatient is detained in a place of safety pending admission (even if anotherhospital) is discounted.Community treatment ordersUnless a restriction order has been attached, a community treatment ordermay be made in the same circumstances as in respect of a section 3 patient.Appeals against conviction or sentenceThe patient has the usual criminal court rights of appeal where a hospitalorder is imposed following conviction.Where a magistrates’ court makes a hospital order without convicting theaccused, s/he has the same right of appeal against the order as if it had beenmade following conviction.Mental Health Review TribunalsWhere a hospital order is made, the patient and their nearest relative mayapply to a tribunal during the second six-month period following the date ofthe order, and thereafter make a further application each year. The patientmay also ask the hospital managers to review her/his case.NOTIONAL HOSPITAL ORDERSWhere a restricted patient is an in-patient on the day the restrictions cease tohave effect, s/he is treated as if s/he had been admitted to the hospital under anew hospital order made without restrictions on that day.Such patients are often referred to as now being subject to a ‘notional hospitalorder’. They are in exactly the same legal position as any other unrestrictedsection 37 patient, with the single exception that they may apply to a tribunalfor their discharge during the six month period commencing with the date ofthe notional hospital order.HISTORICALPrior to 3 November 2008, in cases of psychopathic disorder or mentalimpairment, the court had to be satisfied that treatment was likely to alleviateor prevent a deterioration of the person’s condition before it could impose ahospital order. 15
  • 16. SECTION 41 — RESTRICTION ORDERSWhen the Crown Court makes a hospital order, it may also order that theoffender shall be subject to special restrictions set out in section 41 where thisappears to be necessary in order to protect the public from serious harm. Suchan order is known as ‘restriction order.’It can be seen that a restriction order cannot exist on its own and is parasiticin nature. If the hospital order to which it is attached (‘the relevant hospitalorder’) comes to an end then so too does the attendant restriction order.A restriction order may now only be made for an indefinite period.CRITERIAThe following conditions must be satisfied before a restriction order may beimposed under section 41:1. The Crown Court has made a hospital order.2. At least one of the doctors whose evidence is taken into account has given oral evidence before the court.3. It appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of her/him committing further offences if set at large, that it is necessary for the protection of the public from serious harm that s/he shall be subject to the special restrictions set out in section 41.THE RESTRICTIONSSection 41(3) sets out the special restrictions that apply to patients who aresubject to both a hospital order and a restriction order.The effect of the restriction order is to restrict the ways in which the hospitalorder to which it is attached may come to an end and, more generally, thecircumstances and ways in which the patient may leave hospital.For as long as the restriction order remains in force, the authority to detainthe patient also remains in force. The hospital order to which it is attachedrequires no periodic renewal and never lapses through effluxion of time. Itstermination requires a positive act in the form of an order or directiondischarging it.In the main, the restrictions operate only indirectly on the patient. Most often,it is the exercise of their statutory powers by responsible clinician and hospitalmanagers that are restricted. For example, the responsible clinician cannotgrant the patient leave to be absent from hospital without the Secretary ofState’s consent, nor can the hospital managers transfer her/him to anotherhospital without that consent.Similarly, the responsible clinician and the hospital managers cannot exercisetheir power to discharge the patient under section 23 without the Secretary ofState’s prior consent. 16
  • 17. Although the exercise of these legal powers is restricted, the Secretary of Statehas no responsibility for the patient’s medical treatment or their day to daymanagement in hospital. These are professional matters for the doctors,nurses, psychologists and others to decide.Admission to a specified unitWhere restrictions are attached, a hospital order may specify the hospital unitto which the patient is to be admitted. For example, secure unit x at hospitaly. In this context, a ‘hospital unit’ is ‘any part of a hospital which is treated asa separate unit.’Where a particular hospital unit is specified, any reference in the 1983 Act to ahospital — for example, the leave provisions in section 17 and the transferprovisions in section 19 — is to be construed accordingly. The effect is that theSecretary of State’s consent is required before the patient may lawfully betaken, or allowed, outside the unit or be removed to a different unit or wardon the same hospital site.Duration and renewalNone of the usual Part II provisions relating to the duration, renewal andexpiration of hospital orders apply while the restriction order is in force.Consequently, the authority to detain the patient conferred by the hospitalorder does not require periodic renewal.Nor will the hospital order cease to have effect because the patient has beenabsent without leave for a certain period of time; detained in custody for aperiod exceeding six months; made the subject of a subsequent application,order or direction under the Act; or been removed to a country outsideEngland and Wales under section 86.In short, if a restriction order is also made, the hospital order remains in forcefor as long as the restriction order does; and a positive act is required beforethe patient’s liability to detention can come to an end, in the form of an orderor direction for discharge.Restrictions on leave of absenceA restricted patient’s responsible clinician may not grant her/him leave to beabsent from hospital except with the consent of the Secretary of State.Leave may be revoked, and the patient recalled to hospital, if it appears to theresponsible clinician or to the Secretary of State that it is necessary to do so inthe interests of the patient’s health or safety or for the protection of others.Notice of the leave’s revocation must be given in writing to the patient or (ifs/he is in custody) to the person for the time being in charge of her/him.Absence without leaveA restricted patient who has been absent without leave for a certain period oftime does not cease to be liable to be detained. 17
  • 18. The power to take a restricted patient into custody and to return them undersection 18 may be exercised at any time.Restrictions on hospital transfersA restricted patient may not be transferred from one hospital to another,under section 19, except with the consent of the Secretary of State.Where a restricted patient is transferred under section 19, the hospital ordertakes effect as if it was an order for their admission to the hospital to whichs/he is transferred.Transfer of special hospital patientsSection 123(1) provides that the Secretary of State may direct the removal of apatient from one special hospital to another. S/he may also direct the transferof a special hospital patient to a hospital which is not a special hospital.These powers apply equally to unrestricted patients but, since the majority ofspecial hospital patients are restricted, the power is of particular relevance inthis context.Removal to a hospital under the same managersThe Secretary of State’s consent is required before a patient may be removedfrom one hospital to another hospital under the same managers.Although the Secretary of State may direct the transfer or removal of arestricted or unrestricted patient who is detained in a special hospital, s/hehas no power to direct the transfer of a patient who is liable to be detained ina hospital that is not a special hospital.In such cases, her/his power is limited to consenting to or refusing to consentto any proposed transfer.Unless the order specified a particular hospital unit, provided the patientremains within the grounds of the hospital where s/he is liable to be detained,s/he is by definition not absent from that hospital, either with or withoutleave.Consequently, moving the patient from a locked ward to an open ward withinthe hospital, or granting them permission to spend time in the hospitalgrounds, does not require the Secretary of State’s consent.Community treatment ordersA CTO may not be made in respect of a restricted patient, the pre-existingstatutory scheme for conditional discharge and recall making the new powersunnecessary.Restrictions on transfer into guardianshipA restricted patient may not be transferred into guardianship, with or withoutthe Secretary of State’s consent. 18
  • 19. Consent to treatmentPart IV of the Act applies to restricted patients who are detained in hospital orabsent with leave from hospital. It does not apply to conditionally dischargedpatients, who may not be given treatment without their consent unless it isjustified under some other Act or the common law. It is, however, usually acondition of such a patient’s discharge that s/he takes prescribed medication.Consequently, a patient who refuses risks being recalled to hospital by theSecretary of State.Nearest relative provisionsOn a strict interpretation, restricted patients do not have a statutory nearestrelative and sections 26–28 do not apply to them.Restricted patients in prison, etc.A restriction order does not come to an end because a restricted patient hasbeen in prison or custody for six months, under a sentence or court order.Upon the patient’s release from prison or custody, section 18 applies as if thepatient had absented her/himself without leave on the day of their release.Subsequent applications, orders or directionsMaking a new application, order or direction in respect of a person who isalready subject to a hospital order and an restriction order does not have theeffect of bringing the pre-existing hospital and restriction orders to an end.Removal under the ActWhere a restricted patient is removed to a country outside the UnitedKingdom, the Isle of Man and the Channel Islands, the hospital order and therestriction order continue in force so as to apply to the patient if s/he returnsto England and Wales at any time before the end of the period for which theorders would otherwise have continued in force.RESTRICTIONS ON DISCHARGESpecial discharge rules apply where a patient is subject to a hospital order anda restriction order.In particular, any discharge may be absolute or subject to conditions(conditional).This power to discharge a patient from hospital subject to conditions, andwithout discharging the hospital order itself, is unique to cases involvingrestricted patients.A restricted patient who has been conditionally discharged from hospital maybe recalled to hospital at any time during the period for which the restrictionorder remains in force (see xxx). 19
  • 20. Absolute dischargeThe Secretary of State or a Mental Health Review Tribunal may absolutelydischarge a patient who is detained under a hospital order with a restrictionorder attached.Absolute discharge is equivalent to the ‘ordinary discharge’ of unrestrictedsections. Where a patient is absolutely discharged, s/he ceases to be liable tobe detained under the relevant hospital order, and the restriction order, beingparasitic in nature, also comes to an end.Conditional dischargeThe Secretary of State or a Mental Health Review Tribunal may direct theconditional discharge of a restricted patient who is detained in hospital undera hospital order.Where a patient is discharged from hospital subject to conditions, both thehospital order and the restriction order continue in force and the patient mayby warrant be recalled to hospital by the Secretary of State at any time.The conditions of discharge and their variationSection 73(5) provides that the Secretary of State may, following a patient’sconditional discharge by a tribunal, subsequently vary any of the conditionsattached by the tribunal to the discharge or impose further conditions.In contrast, section 42 does not expressly provide that where the Secretary ofState himself directs the patient’s conditional discharge he may later varythose conditions or impose further conditions, whether more onerous or not.Although the drafting is imprecise, this may be inferred from section 73 andthe general framework of the Act.Recalling the patient to hospitalWhile the restriction order remains in force, the Secretary of State may at anytime by warrant recall the patient to such hospital as may be specified in thewarrant. A conditionally discharged patient remains liable to detention in thislimited sense.The patient may be recalled to a hospital different to that from which s/he wasreleased. If a warrant of recall is issued, the hospital order and the restrictionorder have effect as if the hospital specified in the warrant was substituted forthat specified in the hospital order.Pending the patient’s admission to the named hospital, the patient is treatedas absent from there without leave.This means that section 18 applies, with the modification that the patient doesnot cease to be liable to be taken into custody after s/he has been absent for acertain length of time. Where restrictions are in place, the patient may at anytime be taken into custody and conveyed to the named hospital by anapproved mental health professional, any officer on the staff of the namedhospital, any constable, or any person authorised in writing by the managersof the named hospital. 20
  • 21. If it appears to a justice of the peace that there is reasonable cause to believethat the patient is to be found on private premises within the jurisdiction ofthe justice, and that admission to the premises has been refused, or that arefusal is apprehended, s/he may issue a warrant authorising any constable toenter those premises (if need be by force) and to remove the patient.MHRT applicationsWhere a court makes a restriction order, a convicted patient has no right toapply to a tribunal during the period of six months commencing with the dateof the relevant hospital order. This prohibition also applies to unrestrictedpatients admitted under a hospital order. Restricted patients have the samerights to obtain an independent medical opinion under section 76 asunrestricted persons.Other ways of ending the restrictionsThe option of absolute discharge is only available if the patient is in hospitaland is ready to be discharged from hospital.A mechanism is therefore required which enables the restriction order to bebrought to an end on other occasions, whether prior to a patient’s dischargefrom hospital or following their conditional discharge from hospital.Section 42(1) therefore provides that, if the Secretary of State is satisfied thata restriction order is no longer required to protect of the public from seriousharm, s/he may direct that the patient shall cease to be subject to the specialrestrictions.If the patient has not yet been discharged from hospital when this direction isgiven, the effect is that s/he is treated as if a second, new, hospital order wasmade without restrictions on the day of the direction (see notional hospitalorders, xxx).(This is also the effect where an old limited-term restriction order expiresbefore the patient has been discharged.)If the patient has already been conditionally discharged when the direction isgiven, the effect is that s/he is deemed to have been absolutely discharged, i.e.s/he is free and no longer subject to any order.(This is also the effect where an old limited-term restriction order expiresafter the patient has been conditionally discharged.)Summary of discharge powersThe different ways in which a restriction order and the hospital order to whichit is attached, may cease to have effect are summarised in the table below. 21
  • 22. DISCHARGE OF RESTRICTION ORDER PATIENTS : SUMMARY Order, direction or event Effect Direction of Secretary of State that The restriction order ceases to have the special restrictions shall cease to effect but the patient remains liable have effect made in respect of a to be detained under the relevant patient who is liable to be detained hospital order. However, the Act in hospital. provides that the patient shall be Expiration of a limited-term deemed to have been admitted restriction order in respect of a under a hospital order without restrictions made on the date the patient who at the time is liable to restriction order came to an end. be detained in hospital. Direction of Secretary of State or a Both the hospital order and the Mental Health Review Tribunal that restriction order remain in force. a detained patient shall be The patient remains liable to be conditionally discharged from detained under the hospital order hospital. and may be recalled to hospital by the Secretary of State. Direction of Secretary of State or a Mental Health Review Tribunal that a detained patient shall be absolutely discharged from hospital. Order for discharge under section 23. Both the hospital order and the Direction of Secretary of State or a restriction order cease to have Mental Health Review Tribunal that effect. the special restrictions shall cease to have effect in respect of a patient who has been conditionally discharged. Expiration of a limited-term restriction order after a patient has been conditionally discharged from hospital.PERIODIC REPORTSIn deciding whether to exercise his powers under the Act, the Secretary ofState is assisted by periodic reports furnished to her/him by the patientsresponsible clinician. 22
  • 23. The responsible clinician is required to examine the patient and to report onher/him to the Secretary of State at such intervals (not exceeding one year) asthe Secretary of State may direct; and every report must contain suchparticulars as the Secretary of State may require. 23
  • 24. SECTIONS 43 & 44 — COMMITTALSA magistrates’ court has no power to impose a restriction order. However, ifthe conditions for imposing a hospital order are satisfied, such a court maycommit an offender to the Crown Court if it considers that, should a hospitalorder is made, a restriction order should also be made.Bail may not be granted. The offender must be detained in prison custody orremanded to hospital pending sentence. If remanded to hospital, s/he isdeemed to be subject to a restriction order until the Crown Court deals withthe case.CRITERIAWhere the following conditions are satisfied, a magistrates’ court may, insteadof making a hospital order or dealing with an offender in any other manner,commit her/him in custody to the Crown Court to be dealt with by that court:1. The offender has been convicted of an offence punishable on summary conviction with imprisonment.2. The offender is at least fourteen years of age.3. The usual conditions in section 37(1) for making a hospital order are satisfied in respect of the offender.4. It appears to the court that, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that if a hospital order is made a restriction order should also be made.COMMITTAL TO HOSPITALIf the court is satisfied that arrangements have been made for the offendersadmission to hospital, it may (instead of committing her/him in custody)order her/his admission to the hospital. The court may give directions for theperson’s production from the hospital to attend the relevant Crown Court.An offender who is committed to hospital is deemed to be subject to a hospitalorder together with a restriction order until such time as their case is disposedof by the Crown Court. Notwithstanding this, such a patient has no right toapply to a tribunal.Detention in a place of safety pending admissionThe court may direct that the patient is detained in a place of safety pendingher/his admission to the specified hospital.Once the patient has been admitted to the named hospital, the hospitalmanagers must detain her/him in accordance with the provisions of the Act. 24
  • 25. COMMITTAL IN CUSTODYProvided that the usual conditions for exercising the powers are satisfied, anoffender who was committed in custody pending sentence may later be:1. remanded to hospital by the Crown Court under section 35 (for the preparation of a report on their mental condition) or section 36 (for treatment);2. removed to hospital by the Secretary of State for urgent treatment under section 48(2)(a).CROWN COURT’S POWERSWhere an offender has been committed under section 43, the Crown Courtshall inquire into the circumstances of the case and may:1. exercise any power to make an interim hospital order or a hospital order (with or without restrictions) which the Crown Court would possess if the offender had been convicted by it; or2. deal with the offender in any other manner in which the magistrates’ court might have dealt with her/him.Disposal of the case in the patient’s absenceIn the case of a person committed to hospital, the court may make a hospitalorder (with or without a restriction order) in their absence if:1. It appears to the court that it is impracticable or inappropriate to bring the person before the court; and2. The court is satisfied, on the evidence of at least two doctors, that the patient is suffering from mental ill-ness or severe mental impairment of a nature or degree which makes it appropriate for her/him to be detained in a hospital for medical treatment; and3. The court is of the opinion, after considering any depositions or other documents required to be sent to the proper officer of the court, that it is proper to make such an order.COMMITTAL TO THE CROWN COURT UNDER OTHER POWERSSection 38 of the Magistrates’ Courts Act 1980 enables a magistrates’ court tocommit an adult to the Crown Court for sentence where it is of the opinionthat its own sentencing powers are insufficient. This power is also exercisablewhere the court is of the opinion that greater punishment should be inflictedunless a hospital order is made with a restriction order.Section 43(5) of the 1983 Act provides that where a person has beencommitted as an incorrigible rogue and vagabond, the Crown Court may makea hospital order, with or without a restriction order, in the samecircumstances as it can under section 41. 25
  • 26. SECTION 45A —LIMITATION DIRECTIONSWhere the Crown Court sentences someone who suffers from mental disorderto imprisonment, in certain circumstances it may also direct that, instead ofbeing removed to prison, s/he be removed to and detained in a specifiedhospital.This is called giving a ‘hospital direction’.A person who is removed to hospital must also be made subject to the specialrestrictions set out in section 41.This is called giving a ‘restriction direction’.A hospital direction has effect as a transfer direction made under section 47 inrespect of a serving prisoner.A limitation direction has the same effect as a restriction direction madeunder section 49 in respect of a serving prisoner.BASIC FRAMEWORKThe underlying purpose of section 45A is to combine the security of acustodial sentence with the immediate availability of medical treatment.The fact that the directions are given by a court, and may only be given if theoption of making a hospital order has been rejected, has resulted in thegeneral framework for making hospital and restriction orders being adoptedas the basis of the court procedure.However, once the directions have been given, and the offender is detained inthe specified hospital, the directions do not take effect as a hospital order anda restriction order made under sections 37 and 41. Instead, they take effect asif the offender had initially been removed to prison, and had commencedher/his sentence there, and had then been transferred to hospital by theSecretary of Secretary under sections 47 and 49.The effect is that the individual is first-and-foremost a prisoner and onlysecondarily a patient. Once s/he no longer requires further treatment inhospital, or no effective treatment can be given there, s/he may be remitted toprison to serve out his sentence. Unless s/he has served her/his sentence,s/he has no entitlement to be released into the community at that point.Whatever else happens, therefore, the offender will serve their sentencesecurely detained — either in hospital or in hospital followed by prison —unless the Secretary of Secretary (rather than a tribunal) is satisfied that s/heis fit to be absolutely or conditionally discharged from hospital.CRITERIAThe following conditions must be met before the directions may be given:1. The defendant has been convicted before the Crown Court of an offence the sentence for which is not fixed by law. 26
  • 27. 2. The court is satisfied, on the evidence of two doctors, one of whom is approved under section 12, that the offender (a) is suffering from a mental disorder of a nature or degree which makes it appropriate for her/him to be detained in a hospital for medical treatment, and (b) that appropriate medical treatment is available for him.3. At least one of the doctors whose evidence is taken into account has given oral evidence before the court.4. The court is satisfied, on the evidence of the approved clinician who would have overall responsibility for his case, or some other person representing the hospital managers, that arrangements have been made for her/his admission to that hospital within 28 days.5. The court has imposed a sentence of imprisonment, other than a life sentence for murder.6. The court considered making a hospital order before deciding to impose a sentence of imprisonment in respect of the offence.It can be seen that the medical criteria which must be satisfied before hospitaland limitation directions are given are identical to those that must exist beforea hospital order is made in respect of a person who suffers from mentaldisorder.As in the case of section 37, the court must also be satisfied that a hospital bedis available within 28 days.Where the sections diverge is that a hospital order requires that such an order‘is the most suitable method of disposing of the case’ whereas under section45A the court is of the opinion that the case is suitable for a custodialsentence.EFFECT OF THE DIRECTIONSA hospital direction has the same effect as a transfer direction made undersection 47 in respect of a serving prisoner (xxx).A limitation direction has the same effect as a restriction direction given inrespect of such a person (xxx).The following additional notes are either by way of emphasis or deal withincidental matters specific to limitation directions:1. Part IV of the Act applies to patients detained under hospital and limitation directions as it applies to patients detained in pursuance of transfer and restriction directions. Such patients may be treated without their consent in the circumstances specified in Part IV.2. Because the patients position is identical to that of a prisoner transferred to hospital under sections 47 and 49, s/he may apply to a tribunal during the six month period beginning with the date of the directions, once more during the following six months, and thereafter once during each subsequent year the directions remain in force. 27
  • 28. 3. Persons detained in hospital in pursuance of directions given under section 45A are entitled to after-care under section 117 when they cease to be detained and leave hospital. However, being restricted patients, a community treatment order may not be made in respect of them.4. As in other restricted cases, the responsible clinician must at such intervals (not exceeding one year) as the Secretary of State may direct examine and report to the Secretary of State on the patient; and every report must contain such particulars as the Secretary of State may require." 28
  • 29. SECTIONS 47 &48 — TRANSFERSSections 47 and 48 provide that the Secretary of State may direct the removalof a person from prison, or some other place of custody, to hospital fortreatment.Any such direction is known as a ‘transfer direction’ and has the same effectas if a hospital order had been made in the patients case.Where the Secretary of State gives a transfer direction, s/he may — and mustif the person is awaiting trial or sentence — also direct that the patient shall besubject to the special restrictions set out in section 41.Where restrictions are attached to the transfer, the Secretary of Statesdirection is known as a ‘restriction direction’ (see xxx).In contrast to the position where the court makes a restriction order, there isno provision in the Act for the Secretary of State to make a restrictiondirection for a limited period.TRANSFER DIRECTIONS UNDER SECTIONS 47 AND 48Section 47 provides that the Secretary of State may direct that a personserving a sentence of imprisonment shall be removed to and detained in suchhospital as may be specified in the warrantSection 48 gives the Secretary of State a like power to remove to hospitalpersons detained in prison, or some other place of custody, otherwise than inpursuance of a sentence of imprisonment.CRITERIAThe table below sets out the statutory conditions which must be met before atransfer direction may be given under section 47 or 48.In essence, the patient must be a patient to whom the section applies, and theSecretary of State must be satisfied that the patient meets the medical criteriaand be of the opinion that it is appropriate to give such a direction.The medical groundsAs the table indicates, it is not a condition of removal under section 47 thatthe patient is in urgent need of hospital treatment.These distinctions reflect the fact that some persons serving prison sentenceswill be serving life sentences or long custodial sentences. 29
  • 30. CRITERIA FOR TRANSFER DIRECTIONS Section 47 Section 48 PATIENTS IN RESPECT OF WHOM A DIRECTION MAY BE GIVENSection 47(1)(a) : Persons serving a Section 48(2)(a) : persons detained in asentence of imprisonment. prison or remand centre, not being persons serving a sentence of imprisonment or persons falling within the following paragraphs. Section 48(2)(b) : persons remanded in custody by a magistrates court. Section 48(2)(c) : civil prisoners, that is to say, persons committed by a court to prison for a limited term (including persons committed to prison in pursuance of a writ of attachment), who are not persons falling within section 47. Section 48(2)(d) : persons detained under the Immigration Act 1971. MEDICAL EVIDENCE AND CRITERIAThe Secretary of State is satisfied, by The Secretary of State is satisfied, byreports from at least two doctors (at least reports from at least two doctors (at leastone of whom is approved under section one of whom is approved under section12), that the person is suffering from 12), that the person is suffering frommental disorder of a nature or degree mental disorder of a nature or degreewhich makes it appropriate for him to be which makes it appropriate for him to bedetained in a hospital for medical detained in a hospital for medicaltreatment; and treatment; that he is in urgent need of such treatment; and that appropriateappropriate medical treatment is medical treatment is available for him.available for him. EXPEDIENCY GROUNDThe Secretary of State is of the opinion having regard to the public interest and all thecircumstances that it is expedient to by warrant direct that that person be removed toand detained in the hospital specified in his direction. 30
  • 31. OTHER LEGAL FORMALITIESA transfer direction ceases to have effect after 14 days beginning with the dateon which it is given unless the person to whom it relates has by then beenreceived at the hospital specified in the direction.EFFECT OF A TRANSFER DIRECTIONProvided the patient is admitted within the statutory 14 day period, the Actprovides that ‘a transfer direction ... shall have the same effect as a hospitalorder made in his case.’Unless a restriction direction is also given, the patient is therefore treated inthe same way as a patient subject to a hospital order (see xxx).Duration, renewal, expiration and dischargeBecause an unrestricted patient is in the same position as an unrestrictedhospital order patient, the usual provisions concerning the duration, renewaland discharge of hospital orders apply (see xxx).If the patient was serving a sentence of imprisonment before being removedto hospital, the Secretary of State may not later return her/him to prison toserve out the sentence.Civil prisoners and persons detained under the Immigration Act 1971If the patient is a civil prisoner or a person detained under the ImmigrationAct 1971, the transfer direction expires on the day that the patient would haveceased to be liable to be detained in the place from which s/he was removedhad no direction been given. An application must be made under section 2 or3 if the patient requires further detention under the 1983 Act.Part IV and consent to treatmentPart IV of the Act applies to patients who are liable to be detained under atransfer direction (with or without restrictions) and they may therefore begiven treatment without their consent in the circumstances there set out.Effect on previous applications and ordersThe giving of a transfer direction brings to an end any Part II application ororder made under the Act that was in force, other than a hospital order withrestriction order.Mental Health Review TribunalsThe patient may apply to a tribunal during the period of six months beginningwith the date of the transfer direction. S/he may make a further applicationduring the following six months and one application during each subsequentyear that he remains liable to be detained. Her/his nearest relative may applyto the tribunal in the circumstances set out in section 69(1). 31
  • 32. SECTIONS 48 AND 36 CONTRASTEDSection 48(2)(a) provides that the Secretary of State may remove to hospital adefendant who suffers from disorder and who is in custody awaiting trial orsentence before the Crown Court.Section 36 gives the Crown Court a similar power to remand a person tohospital for treatment. The two powers differ, however, in a number ofrespects:1. A person whose case is before a magistrates’ court may be removed to hospital under section 48 but not remanded there for treatment under section 36.2. It is not a condition of a remand under section 36 that the patient is in urgent need of hospital treatment.3. A remand for treatment under section 36 may not be made unless the court is satisfied that a bed is available whereas the Secretary of State may direct a patients removal to a hospital under section 48.4. Defendants transferred under section 48 are subject to the special restrictions set out in section 41.5. Defendants detained under section 48 are entitled to apply to a Mental Health Review Tribunal.6. Where a person is detained under section 48, their liability to detention in hospital may be terminated by the Secretary of State as well as by the Crown Court.7. Persons detained under section 48 may, in the circumstances specified in section 51, be made the subject of a hospital order (with or without restrictions) without being brought before the court, tried or convicted of the alleged offence. 32
  • 33. SECTION 49 — RESTRICTION DIRECTIONSWhere the Secretary of State gives a transfer direction, in some cases s/hemust also direct that the patient shall be subject to the special restrictions setout in section 41.This is called giving a ‘restriction direction’ and such directions are givenunder section 49.A restriction direction must be added if, before being transferred to hospital,the patient had been remanded in custody by a magistrates court or wasawaiting trial or sentence before the Crown Court.In other cases, it is a matter for the Secretary of State’s discretion as towhether or not s/he adds a ‘restriction direction.’ WHEN A RESTRICTION DIRECTION IS ADDED Direction is mandatory Direction is discretionary Section 48(2)(a) : persons Section 47(1)(a) : persons serving a awaiting trial or sentence in the sentence of imprisonment. Crown Court. Section 48(2)(b) : persons Section 48(2)(d) : persons detained remanded in custody by a under the Immigration Act 1971. magistrates court. Section 48(2)(c) : civil prisoners.EFFECT OF THE DIRECTIONJust as the making of a transfer direction has the same effect as if a hospitalorder had been made, so a restriction direction has the same effect as arestriction order made under section 41.Consequently, patients subject to a restriction direction are to be treated as ifboth a hospital order and a restriction order had been made on the date of thetransfer direction.Medical reportsWhile a person is subject to a restriction direction, the responsible clinicianmust examine the patient and report to the Secretary of State at such intervals(not exceeding one year) as the Secretary of State may direct; and every reportshall contain such particulars as the Secretary of State may require. 33
  • 34. Persons remanded in custody by a magistrates courtThe Secretary of State must give a restriction direction under section 49where s/he transfers to hospital a person who had been remanded in custodyby a magistrates’ court.Once the transfer and restriction directions have been given, the court mayfurther remand the accused in her/his absence provided that s/he hasappeared before the court within the previous six months.The effect of a further remand in custody is that the transfer and restrictiondirections continue in force. A remand on bail brings the directions to an end.If the patient is committed in custody to the Crown Court, whether for trial orsentence, s/he is thereafter deemed to be liable to detention in hospitalpursuant to a transfer direction made under section 48(2)(a). Followingcommittal, the provisions of section 51, instead of those set out in section 52,apply.Alternative means of disposal available to the magistratesA transfer direction under section 48 may only be given in respect of a personsuffering from mental illness or severe mental impairment who is in urgentneed of treatment.Unless the accused is charged with an offence which is triable only by theCrown Court, section 37(3) provides that a magistrates court may in certaincircumstances make a hospital order without convicting such a person.Persons awaiting trial or sentence before the Crown CourtWhere, under section 48(2)(a), the Secretary of State directs the removal tohospital of a person who is awaiting trial or sentence before the Court Crown,s/he must also give a restriction direction.Consequently, it can be seen that all defendants who are removed to hospitalby the Secretary of State during the course of criminal proceedings are subjectto a restriction direction.Following the accused’s transfer to hospital, the Crown Court may make ahospital order (with or without a restriction order) in her/his absence, andwithout convicting him, if:1. it appears to the court that it is impracticable or inappropriate to bring her/him before the court; and2. the court is satisfied, on the evidence of at least two doctors, that the patient is suffering from mental disorder of a nature or degree which makes it appropriate for her/him to be detained in a hospital for medical treatment; and3. the court is of the opinion, after considering any depositions or other documents required to be sent to the proper officer of the court, that it is proper to make such an order. 34
  • 35. DURATION AND DISCHARGE OF RESTRICTION DIRECTIONSThe Act provides that a restriction direction ceases to have effect if:1. The patient is returned (‘remitted’) to custody, for example because the treatment is ineffective or no longer required;2. The Secretary of State or a Mental Health Review Tribunal gives a direction that has this effect.3. The direction expires.TREATMENT INEFFECTIVE OR NO LONGER REQUIREDThe Act provides for the remission to prison, or some other place of custody,of restricted patients who were removed to hospital under sections 47 or 48.Both the transfer direction and the restriction direction cease to have effectupon the patient’s arrival at the place to which s/he is remitted.The statutory criteria governing remittal to prison are the same in all cases,namely that the person ‘no longer requires treatment in the hospital to whichhe has been removed’ or that ‘no effective treatment can be given to himthere.’Note that where the person removed is involved in criminal proceedings, thecourt with jurisdiction to deal with her/his case always has power to remithim. WHO MAY REMIT TO PRISON OR CUSTODY Secretary of State Court Patients serving a sentence of Section 50(1) No power to remit imprisonment removed under sections 47/49 Civil prisoners and Section 53(2) No power to remit Immigration Act detainees Persons remanded in custody No power to remit Section 52(5) by a magistrates court and detained under s.48(2)(b) Persons awaiting trial or Section 51(3) Section 51(4) sentence before the Crown Court and detained under s.48(2)(a) 35
  • 36. Remission by the Secretary of StateWith the exception of patients removed under section 48(2)(b) whose casesare still before a magistrates’ court, the Secretary of State may direct that anyrestriction direction patient be remitted to any place in which s/he could havebeen detained had s/he not been removed to hospital.The Secretary of State may do so on being notified by the responsibleclinician, any other medical practitioner, or a Mental Health Review Tribunal,that the patient ‘no longer requires treatment in the hospital to which he hasbeen removed’ or that ‘no effective treatment can be given to him there.’Remission by a magistrates’ courtIn the case of patients removed under section 48(2)(b) whose cases are stillbefore a magistrates’ court, the magistrates’ court dealing with the case maydirect that the restriction direction shall cease to have effect if satisfied, on theevidence of the responsible clinician, as to either of the above grounds forremission.The court may so direct notwithstanding that the period of remand has notexpired or that, in the course of the same hearing, it has just committed theaccused to the Crown Court for trial or sentence. Unless the court thenremands the patient on bail, s/he will necessarily be returned to custody.Remission by the Crown CourtIn the case of a patient awaiting trial or sentence before the Crown Court, thatcourt may remit the patient to custody or release her/him on bail if satisfied,on the responsible clinician’s evidence, as to the existence of either of thegrounds for remission.In Crown Court proceedings, therefore, either the court or the Secretary ofState may terminate the direction.Whereas the Secretary of State must either remit or not remit, the CrownCourt may grant bail as an alternative to remission. It is therefore generally inthe patient’s interests to encourage their responsible clinician to report to thecourt rather than to the Secretary of State, if a report is to be made.DISCHARGING THE DIRECTIONSAs drafted, the Secretary of State has the same statutory powers in respect of apatient who is subject to a restriction direction as s/he does in a case involvinga patient who is subject to a restriction order. There are, however, a numberof practical differences, and a tribunal’s powers are more limited whendealing with the case of a patient who is subject to a restriction direction.Absolute or conditional dischargeIt is exceptional for a defendant in criminal proceedings who has beenremoved to hospital under section 48 to be discharged by the Secretary ofState, either absolutely or conditionally. S/he will usually be remitted tocustody if hospital treatment is no longer required. 36
  • 37. Similarly, a patient who is serving a sentence of imprisonment, and has beenremoved to hospital under section 47, will generally be remitted to prison toserve out her/his sentence on recovering their health. There are, however,exceptions. For example, patients whose sentences are about to expire andpersons serving life sentences whom the Secretary of State deems to be‘technical lifers’ and suitable for rehabilitation under the Mental Health Act1983.Mental Health Review TribunalsA tribunal’s powers are limited in such cases. Either it has no power todischarge a restriction direction patient from hospital or may only do so withthe Secretary of State’s consent.However, once a patient has been conditionally discharged from hospital(whether by the Secretary of State or with his consent), s/he is then in exactlythe same position as any other conditionally discharged patient, and atribunal may direct that the restrictions shall cease to have effect. POWERS OF TRIBUNALS Patients who are liable to be detained in hospital Section 48 patients No power to direct the patient’s absolute or conditional discharge from hospital. Section 47 patients Power to direct the patient’s absolute or conditional discharge from hospital but only with the Secretary of State prior consent. Conditionally discharged patients All restriction direction Power to direct that the transfer direction and patients restriction direction shall cease to have effect, without the Secretary of State prior consent.EXPIRATION OF THE DIRECTIONSUnless the patient is serving a life sentence, both the transfer direction andthe restriction direction will eventually cease to have effect through effluxionof time.The following table summarises when the directions will expire if no directionis given bringing them to an end and the patient has not by then beenremitted to prison or some other place of custody. 37
  • 38. EXPIRATION OF DIRECTIONS IN RESTRICTED CASES Patients serving a The restriction direction ceases to have effect on determinate sentence of the expiration of the patient’s sentence. imprisonment removed Unless the patient has been conditionally under sections 47/49 discharged before the sentence expires, s/he is deemed to have been admitted to hospital under a second, new, hospital order made, without restrictions, on the day the sentence expired. If already conditionally discharged, the patient ceases to be subject to any form of order or direction on the day the sentence expires. Civil prisoners and Both the transfer direction and the restriction Immigration Act direction expire on the day on which the patient detainees would have ceased to be liable to be detained in the place from which s/he was removed had no direction been given. If the patient’s mental state is such that s/he requires detention under the 1983 Act beyond that date, an application must be made in the ordinary way under section 2 or 3. Accused persons Both the transfer direction and the restriction remanded in custody direction cease to have effect if the accuseds under s.48(2)(b) case is disposed of by the magistrates’ court otherwise than by way of committal in custody to the Crown Court. Following such a committal, the patient is deemed to be subject to a transfer direction made under s.48(2)(a) [see below]. Persons awaiting trial Both the transfer direction and the restriction or sentence before the direction cease to have effect on the day the Crown Court and patient’s case is disposed of by the court. detained under s.48(2)(a) 38

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