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The courts and mental health

Explains what may happen if you're 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.

Under these restrictions, your responsible clinician would need the permission of the Ministry of Justice before:

  • Discharging you from hospital
  • Giving you section 17 leave
  • Transferring you to another hospital, such as for your physical health

After the Ministry of Justice has agreed to the transfer from prison, you’ll need to go to hospital within 14 days.

How long will I be in hospital under section 47/49?

How long you’re in hospital will depend on your circumstances:

  • If you’re on a fixed sentence – once your prison sentence ends, you’ll be treated as if you were detained under section 37 and have the same appeal rights.
  • If you’re on an indefinite sentence – the section 47/49 will last until you’re discharged by the parole board.
  • You can apply to the Mental Health Tribunal if you want to leave hospital. You can apply to leave hospital and live in the community if your sentence has ended. Or if you’ve been discharged by the parole board.
  • The Ministry of Justice may send you back to prison if your responsible clinician thinks that you no longer need treatment in hospital. Or if there’s no effective treatment available.

When can I apply to the Mental Health Tribunal?

The Mental Health Tribunal doesn't have the power to discharge you from a section 47/49. 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’s necessary for your health or safety, or to protect others, for you to get treatment
  • Treatment is available for you in hospital

The tribunal must also consider whether you should remain in hospital if the Ministry of Justice doesn't discharge you. It’s 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 things may happen:

  • If you haven't reached the end of your sentence or tariff, the Ministry of Justice won't discharge you. They might return you to prison – but they won’t usually do this if the tribunal recommends that you should stay in hospital.
  • If you’re on an indefinite sentence but have reached your tariff, the Ministry of Justice will refer your case to the parole board. If the parole board decides to release you, you can leave hospital.

Can I challenge a section 47/49 transfer?

The Ministry of Justice is responsible for deciding whether you should be transferred to hospital, including whether it’s with restrictions.

You could potentially challenge these decisions, including a decision not to transfer you, by judicial review. See our pages on complaining about health and social care decisions for more information on how to do this.

This information was published in April 2024. We'll revise it in 2027.

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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