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The courts and mental health

Explains what may happen if you are charged with committing a crime, what happens when you to go court, and how your mental health is taken into account.

What is a section 47/49?

This is a section 47 transfer to hospital from prison, with section 49 restrictions added. The Ministry of Justice can add section 49 restrictions if they think it's appropriate.

Adding section 49 restrictions means that your responsible clinician will need the permission of the Ministry of Justice before:

  • discharging you from hospital
  • giving you section 17 leave, or
  • transferring you to another hospital.

After the Ministry of Justice has agreed to the transfer, you will need to go to hospital within 14 days.

How long will I be in hospital?

The Ministry of Justice may send you back to prison if your responsible clinician thinks that you no longer need treatment in hospital. You can also apply to the Mental Health Tribunal if you want to leave hospital or go back to prison.

  • If you are on a fixed sentence, once your sentence ends, you will be treated as if you were detained under section 37 (not 37/41) and have the same appeal rights.
  • If you are on an indefinite sentence, then the section 47/49 will last until you are discharged by the parole board.

When can I apply to the Mental Health Tribunal?

The tribunal doesn't have the power to discharge you. It can only tell the Ministry of Justice that it would discharge you if it did have the power.

The tribunal must consider whether:

  • you have a 'mental disorder' which means you should be in hospital for treatment
  • it is necessary for your health or safety or for the protection of others for you to get treatment
  • appropriate treatment is available.

The tribunal must also consider whether you should remain in hospital if the Ministry of Justice doesn't discharge you. It is important to get both recommendations if you don't want to go back to prison.

Once the Ministry of Justice gets these recommendations a few different things may happen:

  • If you haven't reached the end of your sentence or tariff (for indeterminate sentences) the Ministry of Justice won't discharge you, but might return you to prison. The Ministry of Justice doesn't usually do this if the tribunal recommends that you should go back to prison.
  • If you have reached your tariff, the Ministry of Justice will refer your case to the parole board. If the parole board decide to release you, you can then leave hospital.

Can I challenge the transfer?

Yes, the process is the same as for a section 47.

This information was published in July 2018.

This page is currently under review. All content was accurate when published. 

References are available on request. If you would like to reproduce any of this information, see our page on permissions and licensing.

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