Mental health act 1983 mentally disordered offenders

PART III OF THE MENTAL HEALTH ACT

Professor Anselm Eldergill

Solicitor; President, Mental Health Lawyers Association; President, Institute of Mental Health Act
Practitioners; Legal Director of the African Regional Council on Mental Health.

3 Powers Court
Twickenham
Middlesex TW1 2JJ

1

SECTION 35 — REMAND FOR A REPORT

Section 35 empowers a criminal court to remand an accused person to
hospital for the preparation of a medical report.
Although section 35 refers to assessment, it is not the court equivalent of a
section 2 application. The purpose of section 35 is limited to obtaining a
report on someone who is merely suspected, on the basis of a single medical
opinion, to suffer from a form of mental disorder.
Because nothing more than a reasonable suspicion has to be established, the
order does not authorise treatment without consent.

CRITERIA

The 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 35
A constable or other person directed by the court must convey the accused to
the named hospital within seven days. The managers of the hospital must
then detain her/him in accordance with the provisions of section 35. Pending
admission within seven days, the court may authorise the accused’s detention
in a place of safety (usually a prison).

Part II of the Act

Part II of the Act does not apply to persons detained under sections 35. The
patient’s consultant therefore has no authority to grant leave of absence; nor
may such patients be removed or transferred to another hospital under
section 19, or discharged from liability to detention under section 23.

Consent to treatment

Part IV of the Act does not apply to persons remanded to hospital under
section 35. Such persons may only be given treatment without their consent if
this is lawful under some other statutory power or under the common law.

2

Effect on other orders, etc

A remand under section 35 does not bring to an end any pre-existing
application or order made under the Mental Health Act, e.g. a section 2
application or a section 37 order.

Duration of the remand

An accused person may not be remanded under section 35 for more than 28
days at a time.
However, a court may further remand the accused if it appears to it, on the
evidence of the doctor preparing the report, that a further remand is
necessary for completing the assessment of the accused’s mental condition.
The power to further remand may be exercised without the accused being
brought before the court if their counsel or solicitor is given an opportunity of
being heard.
A person may not be remanded under section 35 for more than 12 weeks in
all.

Termination of the remand

The court may at any time terminate a remand under section 35 if it appears
to the court that it is appropriate to do so.

Absconders

The Act expressly provides that the court may terminate the remand upon
application by the accused or upon their being brought before the court
having absconded from the specified hospital.
If an accused absconds, s/he may be arrested without warrant by any
constable and shall then be brought as soon as practicable before the court
that remanded her/him.
The court may then terminate the remand, and deal with the patient in any
way in which it could have dealt with her/him if s/he had not been remanded
under the section. The alternative is usually to remand in custody.

Challenging detention under section 35

A person remanded under section 35 has a statutory right to obtain at their
own expense an independent report from a doctor or approved clinician of
their choice, and to apply to the court for the remand to be terminated. In
practice, the cost of such a report is likely to be met by the legal aid fund at no
cost to the accused person.

Mental Health Review Tribunals

A person detained under section 35 may apply to the court for the remand to
be terminated but has no right to apply to a tribunal. This is because the court
that remanded her/him retains jurisdiction.

3

POINTS TO NOTE

1. 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

SECTION 36 — REMAND FOR TREATMENT

The Crown Court may remand a defendant to hospital for treatment in the
circumstances set out in section 36.

CRITERIA

The 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.

The effect of a remand under section 36 is similar to that of a remand under
section 35. However, section 36 authorises treatment without consent.

Conveyance and detention

A constable or other person directed by the court must convey the accused to
the named hospital within seven days. The managers of the hospital must
then detain her/him in accordance with the provisions of section 36.
Pending admission within seven days, the court may authorise the accused’s
detention in a place of safety (usually a prison).

Part II of the Act

Part II of the Act does not apply to persons detained in hospital under section
36.
Consequently, the patient’s consultant has no authority to grant leave of
absence. Nor may such patients be removed or transferred to another hospital
under section 19, or discharged from liability to detention under section 23.


Persons detained in hospital under section 36 are subject to Part IV of the Act
and may be treated without their consent in the circumstances set out there.

5

Effect on other orders, etc

A remand under section 36 does not bring to an end any pre-existing
application or order made under the Mental Health Act, e.g. a section 3
application or a section 37 order.

Duration of the remand

An accused person may not be remanded under section 36 for more than 28
days at a time.
However, a court may further remand the accused if it appears, on the
evidence of the responsible clinician, that a further remand is warranted.
The power to further remand may be exercised without the accused being
brought before the court if her/his counsel or solicitor is given an opportunity
of being heard.
A person may not be remanded under section 36 for more than 12 weeks in
all.

Termination of the remand

The court may at any time terminate a remand under section 36 if it appears
to the court that it is "appropriate" to do so.

Absconders

The Act expressly provides that the court may terminate the remand upon
application by the accused, or upon her/him being brought before the court
having absconded from the specified hospital.
If an accused absconds from the named hospital, s/he may be arrested
without warrant by any constable and shall then be brought as soon as
practicable before the court that remanded them. The court may terminate
the remand and deal with the patient in any way in which it could have dealt
with them if s/he had not been remanded under the section.


A person remanded under section 36 has a statutory right to obtain at their
own expense an independent report from a doctor or approved clinician of
their choice and to apply to the court on the basis of it for his remand to be
terminated. In practice, the cost of such a report is likely to be met by the legal
aid fund at no cost to the accused person.


A person detained under section 36 may apply to the court for the remand to
be terminated but has no right to apply to a tribunal. This is because the court
that remanded her/him retains jurisdiction.

6

POINTS TO NOTE

1. 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

SECTION 38 — INTERIM HOSPITAL ORDER

Before making a hospital order or direction, or dealing with an offender in
some 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 a
defendant who suffers from mental disorder satisfies the criteria for making a
hospital order or, more generally, whether such a disposal is appropriate.

CRITERIA

The 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.
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.


Where an interim hospital order is made, a constable or any other person
named by the court is required to convey the offender to the hospital specified
in the order within 28 days.

Authority for the patient’s detention

An interim hospital order authorises the managers of the named hospital to
admit the patient at any time within the 28 day period and thereafter to
detain her/him in accordance with the provisions of section 38.

Application of Part II of the Act

The provisions in Part II of the Act do not apply. Consequently, the
responsible clinician has no authority to grant leave of absence. Nor may such
patients be removed or transferred to another hospital under section 19, or
discharged from liability to detention under section 23.

8


Persons detained in hospital under an interim hospital order are subject to
Part IV of the Act. They may therefore be given treatment without their
consent in the circumstances set out in sections 56 to 63.

Effect on previous applications and orders

The 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 orders

An interim hospital order may be in force for such period, not exceeding 12
weeks, as the court specifies when making the order.
The order may then be renewed for further periods of not more than 28 days
at 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 in
force for more than 12 months in all.
The power of renewing an interim hospital order may be exercised without
the offender being brought before the court if her/his counsel or solicitor is
given an opportunity of being heard.

Termination of the interim hospital order

The court is required to terminate an interim hospital order if it makes a
hospital order or decides, after considering the evidence of the responsible
clinician, to deal with the offender in some other way.

Absconders

If an offender absconds from hospital, s/he may be arrested without warrant
by a constable and shall, after being arrested, be brought as soon as
practicable before the court that made the order. The court may thereupon
terminate the order and deal with her/him in any way in which it could have
dealt with her/him if no such order had been made.

The making of a hospital order

Where an interim hospital order is in force, the court may make a hospital
order without the offender being brought before the court if s/he is
represented by counsel or a solicitor and her/his advocate is given an
opportunity of being heard.


In contrast to section 35 or 36, the offender has no statutory right to apply to
the court for the order’s termination on the basis of an independent medical
report. Rather, an interim hospital order is a sentence for the purposes of the
appeal against sentence provisions in the Criminal Appeal Act 1968.

9

Section 38 and Mental Health Review Tribunals

Because the offender’s case has not been disposed of by the court, s/he has no
right to apply to a tribunal for his discharge.

10

SECTION 37 — GUARDIANSHIP ORDERS

Under section 37, the Crown Court or a magistrates’ court may place a person
under the guardianship of a local social services authority or of such person
approved by a local social services authority as may be specified.

CRITERIA

The 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 conviction

A magistrates' court may make a guardianship order without convicting the
accused if s/he suffers from mental disorder, the conditions specified above
are met, and the court is satisfied that s/he did the act or made the omission
charged.
The Crown Court may only make an order in respect of a convicted person
unless s/he has been found unfit to plead or not guilty by reason of insanity.

EFFECT OF THE ORDER

A 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 received
into guardianship following a guardianship application made under section 7.
The only substantive differences are that:

11

1. The patient's 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 renewal

As with section 7 applications, the guardianship requires periodic renewal,
and lapses unless renewed at successive intervals of 6 months, 12 months and
annually 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 order
discharge under section 23, the order may be discharged in the same way as a
guardianship application made under Part II.


The making of a guardianship order has the consequence that any Part II
application, hospital order (without restrictions) or guardianship order that
was previously in force ceases to have effect.

Challenging guardianship orders

The patient may appeal against the court’s sentence in the usual way. The Act
expressly provides that, where the order was made by magistrates otherwise
than upon conviction, the patient has the same right of appeal against the
order as if it had been made following her/his conviction.


The patient’s right to apply to a tribunal at periodic intervals are the same as
those of a patient received into guardianship under Part II. The patient may
make an application during the six month period beginning with the date of
the order and, thereafter, make a further application during each period for
which the guardianship is renewed. The nearest relative’s periodic rights of
application have already been described (see above).

12

SECTION 37 — HOSPITAL ORDERS

Under section 37, a court may dispose of a case by ordering a defendant’s
admission to, and detention in, the hospital specified in its order.

CRITERIA

The following requirements must be met before a hospital order may be made
under 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).
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.
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 conviction
A magistrates' court’s power to make a hospital order without convicting a
person suffering from mental disorder is the same as its power to make a
guardianship 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; or
2. The accused has been found unfit to plead or not guilty of the offence
charged by reason of insanity.

13

EFFECT OF AN ORDER

The making of a hospital order authorises a constable, an approved mental
health professional or any other person directed by the court to convey the
patient to the specified hospital within a period of 28 days.
The court may give directions for the patient’s conveyance to, and detention
in, a place of safety pending their admission to the specified hospital.
Emergencies and other special circumstances
If it appears to the Secretary of State that, ‘by reason of an emergency or other
special circumstances,’ it is not practicable for the patient to be admitted to
the named hospital within 28 days, s/he may give directions for the patient's
admission to such other hospital as appears to be appropriate.

Authority to detain the patient

A hospital order authorises the managers of the hospital named in the order
to admit the patient at any time within the 28 day period and thereafter to
detain her/him in accordance with the provisions of the Act.


The making of a guardianship order has the consequence that any Part II
application, hospital order (without restrictions) or guardianship order that
was previously in force in respect of the patient ceases to have effect.

Application of Part II of the Act

The patient is treated as if on the date of the court’s order s/he was admitted
to 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 patient's 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 renewal

As with section 3 applications, the authority to detain the patient requires
periodic renewal, and lapses unless renewed at successive periods of 6
months, 12 months and annually thereafter.

14

These periods commence from the date of the order, not the date of the
patient’s admission to the named hospital.
Apart from the fact that the patient’s nearest relative has no power to make an
order for discharge under section 23, the order may be discharged in the same
way as a section 3 application.


The consent to treatment provisions in Part IV apply to patients detained
under a hospital order. However, when calculating the three month statutory
period for the purposes of section 58, any medication administered while the
patient is detained in a place of safety pending admission (even if another
hospital) is discounted.

Community treatment orders

Unless a restriction order has been attached, a community treatment order
may be made in the same circumstances as in respect of a section 3 patient.

Appeals against conviction or sentence

The patient has the usual criminal court rights of appeal where a hospital
order is imposed following conviction.
Where a magistrates’ court makes a hospital order without convicting the
accused, s/he has the same right of appeal against the order as if it had been
made following conviction.


Where a hospital order is made, the patient and their nearest relative may
apply to a tribunal during the second six-month period following the date of
the order, and thereafter make a further application each year. The patient
may also ask the hospital managers to review her/his case.

NOTIONAL HOSPITAL ORDERS

Where a restricted patient is an in-patient on the day the restrictions cease to
have effect, s/he is treated as if s/he had been admitted to the hospital under a
new hospital order made without restrictions on that day.
Such patients are often referred to as now being subject to a ‘notional hospital
order’. They are in exactly the same legal position as any other unrestricted
section 37 patient, with the single exception that they may apply to a tribunal
for their discharge during the six month period commencing with the date of
the notional hospital order.

HISTORICAL

Prior to 3 November 2008, in cases of psychopathic disorder or mental
impairment, the court had to be satisfied that treatment was likely to alleviate
or prevent a deterioration of the person’s condition before it could impose a
hospital order.

15

SECTION 41 — RESTRICTION ORDERS

When the Crown Court makes a hospital order, it may also order that the
offender shall be subject to special restrictions set out in section 41 where this
appears to be necessary in order to protect the public from serious harm. Such
an order is known as ‘restriction order.’
It can be seen that a restriction order cannot exist on its own and is parasitic
in nature. If the hospital order to which it is attached (‘the relevant hospital
order’) comes to an end then so too does the attendant restriction order.
A restriction order may now only be made for an indefinite period.

CRITERIA

The following conditions must be satisfied before a restriction order may be
imposed 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 RESTRICTIONS

Section 41(3) sets out the special restrictions that apply to patients who are
subject to both a hospital order and a restriction order.
The effect of the restriction order is to restrict the ways in which the hospital
order to which it is attached may come to an end and, more generally, the
circumstances and ways in which the patient may leave hospital.
For as long as the restriction order remains in force, the authority to detain
the patient also remains in force. The hospital order to which it is attached
requires no periodic renewal and never lapses through effluxion of time. Its
termination requires a positive act in the form of an order or direction
discharging 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 hospital
managers that are restricted. For example, the responsible clinician cannot
grant the patient leave to be absent from hospital without the Secretary of
State’s consent, nor can the hospital managers transfer her/him to another
hospital without that consent.
Similarly, the responsible clinician and the hospital managers cannot exercise
their power to discharge the patient under section 23 without the Secretary of
State’s prior consent.

16

Although the exercise of these legal powers is restricted, the Secretary of State
has no responsibility for the patient’s medical treatment or their day to day
management in hospital. These are professional matters for the doctors,
nurses, psychologists and others to decide.

Admission to a specified unit

Where restrictions are attached, a hospital order may specify the hospital unit
to which the patient is to be admitted. For example, secure unit x at hospital
y. In this context, a ‘hospital unit’ is ‘any part of a hospital which is treated as
a separate unit.’
Where a particular hospital unit is specified, any reference in the 1983 Act to a
hospital — for example, the leave provisions in section 17 and the transfer
provisions in section 19 — is to be construed accordingly. The effect is that the
Secretary of State’s consent is required before the patient may lawfully be
taken, or allowed, outside the unit or be removed to a different unit or ward
on the same hospital site.

Duration and renewal

None of the usual Part II provisions relating to the duration, renewal and
expiration of hospital orders apply while the restriction order is in force.
Consequently, the authority to detain the patient conferred by the hospital
order does not require periodic renewal.
Nor will the hospital order cease to have effect because the patient has been
absent without leave for a certain period of time; detained in custody for a
period exceeding six months; made the subject of a subsequent application,
order or direction under the Act; or been removed to a country outside
England and Wales under section 86.
In short, if a restriction order is also made, the hospital order remains in force
for as long as the restriction order does; and a positive act is required before
the patient’s liability to detention can come to an end, in the form of an order
or direction for discharge.

Restrictions on leave of absence

A restricted patient’s responsible clinician may not grant her/him leave to be
absent 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 the
responsible clinician or to the Secretary of State that it is necessary to do so in
the 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 (if
s/he is in custody) to the person for the time being in charge of her/him.

Absence without leave

A restricted patient who has been absent without leave for a certain period of
time does not cease to be liable to be detained.

17

The power to take a restricted patient into custody and to return them under
section 18 may be exercised at any time.

Restrictions on hospital transfers

A 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 order
takes effect as if it was an order for their admission to the hospital to which
s/he is transferred.

Transfer of special hospital patients

Section 123(1) provides that the Secretary of State may direct the removal of a
patient from one special hospital to another. S/he may also direct the transfer
of a special hospital patient to a hospital which is not a special hospital.
These powers apply equally to unrestricted patients but, since the majority of
special hospital patients are restricted, the power is of particular relevance in
this context.

Removal to a hospital under the same managers

The Secretary of State’s consent is required before a patient may be removed
from one hospital to another hospital under the same managers.
Although the Secretary of State may direct the transfer or removal of a
restricted or unrestricted patient who is detained in a special hospital, s/he
has no power to direct the transfer of a patient who is liable to be detained in
a hospital that is not a special hospital.
In such cases, her/his power is limited to consenting to or refusing to consent
to any proposed transfer.
Unless the order specified a particular hospital unit, provided the patient
remains 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 without
leave.
Consequently, moving the patient from a locked ward to an open ward within
the hospital, or granting them permission to spend time in the hospital
grounds, does not require the Secretary of State’s consent.

Community treatment orders

A CTO may not be made in respect of a restricted patient, the pre-existing
statutory scheme for conditional discharge and recall making the new powers
unnecessary.

Restrictions on transfer into guardianship

A restricted patient may not be transferred into guardianship, with or without
the Secretary of State’s consent.

18


Part IV of the Act applies to restricted patients who are detained in hospital or
absent with leave from hospital. It does not apply to conditionally discharged
patients, who may not be given treatment without their consent unless it is
justified under some other Act or the common law. It is, however, usually a
condition of such a patient’s discharge that s/he takes prescribed medication.
Consequently, a patient who refuses risks being recalled to hospital by the
Secretary of State.

Nearest relative provisions

On a strict interpretation, restricted patients do not have a statutory nearest
relative 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 has
been 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 the
patient had absented her/himself without leave on the day of their release.

Subsequent applications, orders or directions

Making a new application, order or direction in respect of a person who is
already subject to a hospital order and an restriction order does not have the
effect of bringing the pre-existing hospital and restriction orders to an end.

Removal under the Act

Where a restricted patient is removed to a country outside the United
Kingdom, the Isle of Man and the Channel Islands, the hospital order and the
restriction order continue in force so as to apply to the patient if s/he returns
to England and Wales at any time before the end of the period for which the
orders would otherwise have continued in force.

RESTRICTIONS ON DISCHARGE

Special discharge rules apply where a patient is subject to a hospital order and
a 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, and
without discharging the hospital order itself, is unique to cases involving
restricted patients.
A restricted patient who has been conditionally discharged from hospital may
be recalled to hospital at any time during the period for which the restriction
order remains in force (see xxx).

19

Absolute discharge

The Secretary of State or a Mental Health Review Tribunal may absolutely
discharge a patient who is detained under a hospital order with a restriction
order attached.
Absolute discharge is equivalent to the ‘ordinary discharge’ of unrestricted
sections. Where a patient is absolutely discharged, s/he ceases to be liable to
be detained under the relevant hospital order, and the restriction order, being
parasitic in nature, also comes to an end.

Conditional discharge

The Secretary of State or a Mental Health Review Tribunal may direct the
conditional discharge of a restricted patient who is detained in hospital under
a hospital order.
Where a patient is discharged from hospital subject to conditions, both the
hospital order and the restriction order continue in force and the patient may
by warrant be recalled to hospital by the Secretary of State at any time.
The conditions of discharge and their variation
Section 73(5) provides that the Secretary of State may, following a patient’s
conditional discharge by a tribunal, subsequently vary any of the conditions
attached by the tribunal to the discharge or impose further conditions.
In contrast, section 42 does not expressly provide that where the Secretary of
State himself directs the patient’s conditional discharge he may later vary
those conditions or impose further conditions, whether more onerous or not.
Although the drafting is imprecise, this may be inferred from section 73 and
the general framework of the Act.

Recalling the patient to hospital

While the restriction order remains in force, the Secretary of State may at any
time by warrant recall the patient to such hospital as may be specified in the
warrant. A conditionally discharged patient remains liable to detention in this
limited sense.
The patient may be recalled to a hospital different to that from which s/he was
released. If a warrant of recall is issued, the hospital order and the restriction
order have effect as if the hospital specified in the warrant was substituted for
that specified in the hospital order.
Pending the patient’s admission to the named hospital, the patient is treated
as absent from there without leave.
This means that section 18 applies, with the modification that the patient does
not cease to be liable to be taken into custody after s/he has been absent for a
certain length of time. Where restrictions are in place, the patient may at any
time be taken into custody and conveyed to the named hospital by an
approved mental health professional, any officer on the staff of the named
hospital, any constable, or any person authorised in writing by the managers
of the named hospital.

20

If it appears to a justice of the peace that there is reasonable cause to believe
that the patient is to be found on private premises within the jurisdiction of
the justice, and that admission to the premises has been refused, or that a
refusal is apprehended, s/he may issue a warrant authorising any constable to
enter those premises (if need be by force) and to remove the patient.
MHRT applications
Where a court makes a restriction order, a convicted patient has no right to
apply to a tribunal during the period of six months commencing with the date
of the relevant hospital order. This prohibition also applies to unrestricted
patients admitted under a hospital order. Restricted patients have the same
rights to obtain an independent medical opinion under section 76 as
unrestricted persons.

Other ways of ending the restrictions

The option of absolute discharge is only available if the patient is in hospital
and is ready to be discharged from hospital.
A mechanism is therefore required which enables the restriction order to be
brought to an end on other occasions, whether prior to a patient’s discharge
from hospital or following their conditional discharge from hospital.
Section 42(1) therefore provides that, if the Secretary of State is satisfied that
a restriction order is no longer required to protect of the public from serious
harm, s/he may direct that the patient shall cease to be subject to the special
restrictions.
If the patient has not yet been discharged from hospital when this direction is
given, the effect is that s/he is treated as if a second, new, hospital order was
made without restrictions on the day of the direction (see notional hospital
orders, xxx).
(This is also the effect where an old limited-term restriction order expires
before the patient has been discharged.)
If the patient has already been conditionally discharged when the direction is
given, 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 expires
after the patient has been conditionally discharged.)

Summary of discharge powers

The different ways in which a restriction order and the hospital order to which
it is attached, may cease to have effect are summarised in the table below.

21

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 REPORTS

In deciding whether to exercise his powers under the Act, the Secretary of
State is assisted by periodic reports furnished to her/him by the patient's
responsible clinician.

22

The responsible clinician is required to examine the patient and to report on
her/him to the Secretary of State at such intervals (not exceeding one year) as
the Secretary of State may direct; and every report must contain such
particulars as the Secretary of State may require.

23

SECTIONS 43 & 44 — COMMITTALS

A magistrates’ court has no power to impose a restriction order. However, if
the conditions for imposing a hospital order are satisfied, such a court may
commit an offender to the Crown Court if it considers that, should a hospital
order is made, a restriction order should also be made.
Bail may not be granted. The offender must be detained in prison custody or
remanded to hospital pending sentence. If remanded to hospital, s/he is
deemed to be subject to a restriction order until the Crown Court deals with
the case.

CRITERIA

Where the following conditions are satisfied, a magistrates’ court may, instead
of 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 HOSPITAL

If the court is satisfied that arrangements have been made for the offender's
admission to hospital, it may (instead of committing her/him in custody)
order her/his admission to the hospital. The court may give directions for the
person’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 hospital
order together with a restriction order until such time as their case is disposed
of by the Crown Court. Notwithstanding this, such a patient has no right to
apply to a tribunal.

Detention in a place of safety pending admission

The court may direct that the patient is detained in a place of safety pending
her/his admission to the specified hospital.
Once the patient has been admitted to the named hospital, the hospital
managers must detain her/him in accordance with the provisions of the Act.

24

COMMITTAL IN CUSTODY

Provided that the usual conditions for exercising the powers are satisfied, an
offender 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 POWERS

Where an offender has been committed under section 43, the Crown Court
shall 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; or
2. 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 absence

In the case of a person committed to hospital, the court may make a hospital
order (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; and
2. 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; and
3. 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 POWERS

Section 38 of the Magistrates’ Courts Act 1980 enables a magistrates’ court to
commit an adult to the Crown Court for sentence where it is of the opinion
that its own sentencing powers are insufficient. This power is also exercisable
where the court is of the opinion that greater punishment should be inflicted
unless a hospital order is made with a restriction order.
Section 43(5) of the 1983 Act provides that where a person has been
committed as an incorrigible rogue and vagabond, the Crown Court may make
a hospital order, with or without a restriction order, in the same
circumstances as it can under section 41.

25

SECTION 45A —LIMITATION DIRECTIONS

Where the Crown Court sentences someone who suffers from mental disorder
to imprisonment, in certain circumstances it may also direct that, instead of
being removed to prison, s/he be removed to and detained in a specified
hospital.
This is called giving a ‘hospital direction’.
A person who is removed to hospital must also be made subject to the special
This is called giving a ‘restriction direction’.
A hospital direction has effect as a transfer direction made under section 47 in
respect of a serving prisoner.
A limitation direction has the same effect as a restriction direction made
under section 49 in respect of a serving prisoner.

BASIC FRAMEWORK

The underlying purpose of section 45A is to combine the security of a
custodial sentence with the immediate availability of medical treatment.
The fact that the directions are given by a court, and may only be given if the
option of making a hospital order has been rejected, has resulted in the
general framework for making hospital and restriction orders being adopted
as the basis of the court procedure.
However, once the directions have been given, and the offender is detained in
the specified hospital, the directions do not take effect as a hospital order and
a restriction order made under sections 37 and 41. Instead, they take effect as
if the offender had initially been removed to prison, and had commenced
her/his sentence there, and had then been transferred to hospital by the
Secretary of Secretary under sections 47 and 49.
The effect is that the individual is first-and-foremost a prisoner and only
secondarily a patient. Once s/he no longer requires further treatment in
hospital, or no effective treatment can be given there, s/he may be remitted to
prison 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 sentence
securely detained — either in hospital or in hospital followed by prison —
unless the Secretary of Secretary (rather than a tribunal) is satisfied that s/he
is fit to be absolutely or conditionally discharged from hospital.

CRITERIA

The 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

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.
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 hospital
and limitation directions are given are identical to those that must exist before
a hospital order is made in respect of a person who suffers from mental
disorder.
As in the case of section 37, the court must also be satisfied that a hospital bed
is 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 section
45A the court is of the opinion that the case is suitable for a custodial
sentence.

EFFECT OF THE DIRECTIONS

A hospital direction has the same effect as a transfer direction made under
section 47 in respect of a serving prisoner (xxx).
A limitation direction has the same effect as a restriction direction given in
respect of such a person (xxx).
The following additional notes are either by way of emphasis or deal with
incidental 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 patient's 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

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

SECTIONS 47 &48 — TRANSFERS

Sections 47 and 48 provide that the Secretary of State may direct the removal
of a person from prison, or some other place of custody, to hospital for
treatment.
Any such direction is known as a ‘transfer direction’ and has the same effect
as if a hospital order had been made in the patient's case.
Where the Secretary of State gives a transfer direction, s/he may — and must
if the person is awaiting trial or sentence — also direct that the patient shall be
subject to the special restrictions set out in section 41.
Where restrictions are attached to the transfer, the Secretary of State's
direction is known as a ‘restriction direction’ (see xxx).
In contrast to the position where the court makes a restriction order, there is
no provision in the Act for the Secretary of State to make a restriction
direction for a limited period.

TRANSFER DIRECTIONS UNDER SECTIONS 47 AND 48

Section 47 provides that the Secretary of State may direct that a person
serving a sentence of imprisonment shall be removed to and detained in such
hospital as may be specified in the warrant
Section 48 gives the Secretary of State a like power to remove to hospital
persons detained in prison, or some other place of custody, otherwise than in
pursuance of a sentence of imprisonment.

CRITERIA

The table below sets out the statutory conditions which must be met before a
transfer direction may be given under section 47 or 48.
In essence, the patient must be a patient to whom the section applies, and the
Secretary of State must be satisfied that the patient meets the medical criteria
and be of the opinion that it is appropriate to give such a direction.

The medical grounds

As the table indicates, it is not a condition of removal under section 47 that
the patient is in urgent need of hospital treatment.
These distinctions reflect the fact that some persons serving prison sentences
will be serving life sentences or long custodial sentences.

29

CRITERIA FOR TRANSFER DIRECTIONS

Section 47 Section 48

PATIENTS IN RESPECT OF WHOM A DIRECTION MAY BE GIVEN

Section 47(1)(a) : Persons serving a Section 48(2)(a) : persons detained in a
sentence 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 CRITERIA

The Secretary of State is satisfied, by The Secretary of State is satisfied, by
reports from at least two doctors (at least reports from at least two doctors (at least
one of whom is approved under section one of whom is approved under section
12), that the person is suffering from 12), that the person is suffering from
mental disorder of a nature or degree mental disorder of a nature or degree
which makes it appropriate for him to be which makes it appropriate for him to be
detained in a hospital for medical detained in a hospital for medical
treatment; and treatment; that he is in urgent need of
such treatment; and that appropriate
appropriate medical treatment is
medical treatment is available for him.
available for him.

EXPEDIENCY GROUND

The Secretary of State is of the opinion having regard to the public interest and all the
circumstances that it is expedient to by warrant direct that that person be removed to
and detained in the hospital specified in his direction.

30

OTHER LEGAL FORMALITIES

A transfer direction ceases to have effect after 14 days beginning with the date
on which it is given unless the person to whom it relates has by then been
received at the hospital specified in the direction.

EFFECT OF A TRANSFER DIRECTION

Provided the patient is admitted within the statutory 14 day period, the Act
provides that ‘a transfer direction ... shall have the same effect as a hospital
order made in his case.’
Unless a restriction direction is also given, the patient is therefore treated in
the same way as a patient subject to a hospital order (see xxx).

Duration, renewal, expiration and discharge

Because an unrestricted patient is in the same position as an unrestricted
hospital order patient, the usual provisions concerning the duration, renewal
and discharge of hospital orders apply (see xxx).
If the patient was serving a sentence of imprisonment before being removed
to hospital, the Secretary of State may not later return her/him to prison to
serve out the sentence.
Civil prisoners and persons detained under the Immigration Act 1971
If the patient is a civil prisoner or a person detained under the Immigration
Act 1971, the transfer direction expires on the day that the patient would have
ceased to be liable to be detained in the place from which s/he was removed
had no direction been given. An application must be made under section 2 or
3 if the patient requires further detention under the 1983 Act.

Part IV and consent to treatment

Part IV of the Act applies to patients who are liable to be detained under a
transfer direction (with or without restrictions) and they may therefore be
given treatment without their consent in the circumstances there set out.


The giving of a transfer direction brings to an end any Part II application or
order made under the Act that was in force, other than a hospital order with
restriction order.


The patient may apply to a tribunal during the period of six months beginning
with the date of the transfer direction. S/he may make a further application
during the following six months and one application during each subsequent
year that he remains liable to be detained. Her/his nearest relative may apply
to the tribunal in the circumstances set out in section 69(1).

31

SECTIONS 48 AND 36 CONTRASTED

Section 48(2)(a) provides that the Secretary of State may remove to hospital a
defendant who suffers from disorder and who is in custody awaiting trial or
sentence before the Crown Court.
Section 36 gives the Crown Court a similar power to remand a person to
hospital for treatment. The two powers differ, however, in a number of
respects:

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 patient's removal to a hospital under section 48.
4. Defendants transferred under section 48 are subject to the special
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

SECTION 49 — RESTRICTION DIRECTIONS

Where the Secretary of State gives a transfer direction, in some cases s/he
must also direct that the patient shall be subject to the special restrictions set
out in section 41.
This is called giving a ‘restriction direction’ and such directions are given
under 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 was
awaiting trial or sentence before the Crown Court.
In other cases, it is a matter for the Secretary of State’s discretion as to
whether 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 DIRECTION

Just as the making of a transfer direction has the same effect as if a hospital
order had been made, so a restriction direction has the same effect as a
restriction order made under section 41.
Consequently, patients subject to a restriction direction are to be treated as if
both a hospital order and a restriction order had been made on the date of the
transfer direction.

Medical reports

While a person is subject to a restriction direction, the responsible clinician
must 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 report
shall contain such particulars as the Secretary of State may require.

33

Persons remanded in custody by a magistrates court

The Secretary of State must give a restriction direction under section 49
where s/he transfers to hospital a person who had been remanded in custody
by a magistrates’ court.
Once the transfer and restriction directions have been given, the court may
further remand the accused in her/his absence provided that s/he has
appeared before the court within the previous six months.
The effect of a further remand in custody is that the transfer and restriction
directions 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 or
sentence, s/he is thereafter deemed to be liable to detention in hospital
pursuant to a transfer direction made under section 48(2)(a). Following
committal, the provisions of section 51, instead of those set out in section 52,
apply.
Alternative means of disposal available to the magistrates
A transfer direction under section 48 may only be given in respect of a person
suffering from mental illness or severe mental impairment who is in urgent
need of treatment.
Unless the accused is charged with an offence which is triable only by the
Crown Court, section 37(3) provides that a magistrates' court may in certain
circumstances make a hospital order without convicting such a person.

Persons awaiting trial or sentence before the Crown Court

Where, under section 48(2)(a), the Secretary of State directs the removal to
hospital 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 hospital
by the Secretary of State during the course of criminal proceedings are subject
to a restriction direction.
Following the accused’s transfer to hospital, the Crown Court may make a
hospital order (with or without a restriction order) in her/his absence, and
without convicting him, if:

1. it appears to the court that it is impracticable or inappropriate to bring
her/him before the court; and
2. 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; and
3. 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

DURATION AND DISCHARGE OF RESTRICTION DIRECTIONS

The 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 REQUIRED

The 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 effect
upon 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 which
he has been removed’ or that ‘no effective treatment can be given to him
there.’
Note that where the person removed is involved in criminal proceedings, the
court with jurisdiction to deal with her/his case always has power to remit
him.

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

Remission by the Secretary of State

With the exception of patients removed under section 48(2)(b) whose cases
are still before a magistrates’ court, the Secretary of State may direct that any
restriction direction patient be remitted to any place in which s/he could have
been detained had s/he not been removed to hospital.
The Secretary of State may do so on being notified by the responsible
clinician, any other medical practitioner, or a Mental Health Review Tribunal,
that the patient ‘no longer requires treatment in the hospital to which he has
been removed’ or that ‘no effective treatment can be given to him there.’

Remission by a magistrates’ court

In the case of patients removed under section 48(2)(b) whose cases are still
before a magistrates’ court, the magistrates’ court dealing with the case may
direct that the restriction direction shall cease to have effect if satisfied, on the
evidence of the responsible clinician, as to either of the above grounds for
remission.
The court may so direct notwithstanding that the period of remand has not
expired or that, in the course of the same hearing, it has just committed the
accused to the Crown Court for trial or sentence. Unless the court then
remands the patient on bail, s/he will necessarily be returned to custody.

Remission by the Crown Court

In the case of a patient awaiting trial or sentence before the Crown Court, that
court 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 the
grounds for remission.
In Crown Court proceedings, therefore, either the court or the Secretary of
State may terminate the direction.
Whereas the Secretary of State must either remit or not remit, the Crown
Court may grant bail as an alternative to remission. It is therefore generally in
the patient’s interests to encourage their responsible clinician to report to the
court rather than to the Secretary of State, if a report is to be made.

DISCHARGING THE DIRECTIONS

As drafted, the Secretary of State has the same statutory powers in respect of a
patient who is subject to a restriction direction as s/he does in a case involving
a patient who is subject to a restriction order. There are, however, a number
of practical differences, and a tribunal’s powers are more limited when
dealing with the case of a patient who is subject to a restriction direction.

Absolute or conditional discharge

It is exceptional for a defendant in criminal proceedings who has been
removed to hospital under section 48 to be discharged by the Secretary of
State, either absolutely or conditionally. S/he will usually be remitted to
custody if hospital treatment is no longer required.

36

Similarly, a patient who is serving a sentence of imprisonment, and has been
removed to hospital under section 47, will generally be remitted to prison to
serve out her/his sentence on recovering their health. There are, however,
exceptions. For example, patients whose sentences are about to expire and
persons serving life sentences whom the Secretary of State deems to be
‘technical lifers’ and suitable for rehabilitation under the Mental Health Act
1983.


A tribunal’s powers are limited in such cases. Either it has no power to
discharge a restriction direction patient from hospital or may only do so with
the 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 exactly
the same position as any other conditionally discharged patient, and a
tribunal 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 DIRECTIONS

Unless the patient is serving a life sentence, both the transfer direction and
the restriction direction will eventually cease to have effect through effluxion
of time.
The following table summarises when the directions will expire if no direction
is given bringing them to an end and the patient has not by then been
remitted to prison or some other place of custody.

37

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 accused's
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

Mental health act 1983 mentally disordered offenders

Recommended

Recommended

More Related Content

What's hot

What's hot (19)

Viewers also liked

Viewers also liked (9)

Similar to Mental health act 1983 mentally disordered offenders

Similar to Mental health act 1983 mentally disordered offenders (20)

More from Anselm Eldergill

More from Anselm Eldergill (20)

Recently uploaded

Recently uploaded (20)

Mental health act 1983 mentally disordered offenders