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.
Section 47/49 transfer to hospital from prison with restrictions
This page covers:
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.
Responsible clinician (RC)
This is the mental health professional in charge of your care and treatment while you are sectioned under the Mental Health Act.
Certain decisions, such as applying for someone who is sectioned to go onto a community treatment order (CTO), can only be taken by the responsible clinician.
All responsible clinicians must be approved clinicians. They do not have to be a doctor, but in practice many of them are.
Visit our full listing of Legal TermsSection 17 leave
This is where your responsible clinician gives you permission to leave the ward or the hospital for short periods. They may ask you to keep to certain conditions, such as returning within a certain time.
Visit our full listing of Legal TermsMental disorder
When the Mental Health Act talks about someone with mental health problems and whether or not they should be sectioned, it often uses the term 'mental disorder'. The Act says that this can include "any disorder or disability of mind".
Mental disorder can include:
- any mental health problem normally diagnosed in psychiatry
- certain learning disabilities.
Tariff
If a court gives you an indeterminate sentence (one without a fixed time limit), or a life sentence, it will set a 'tariff' or 'minimum term'. This is the earliest date at which you could be released. The exception is where the court gives a 'whole life sentence' which doesn't have a tariff.
Visit our full listing of Legal TermsThis information was published in April 2024. We'll revise it in 2027.
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