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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 48/49?

If you’re on remand in prison, you can be sent to hospital for treatment under section 48 of the Mental Health Act. This can also happen if you’re in an Immigration Removal Centre.

The Ministry of Justice will usually add special restrictions to your transfer under section 49. This is known as a section 48/49.

When can I be given a section 48/49?

Section 48 can only be used before you’ve been sentenced. After that, you can be transferred from prison to hospital under section 47.

If the prison or Immigration Removal Centre think you’re unwell and need to go to hospital, they can ask the Ministry of Justice to agree. They must send reports from 2 doctors saying that:

  • You have a mental disorder which means you should be in hospital for treatment
  • You’re in urgent need of treatment
  • Treatment is available for you in hospital

The Ministry of Justice can add section 49 restrictions if they think it's appropriate. If they add restrictions, your responsible clinician will need permission from the Ministry of Justice before:

  • Discharging you from hospital
  • Giving you section 17 leave
  • Transferring you to another hospital

How can I be discharged from a section 48/49?

If your responsible clinician thinks that you no longer need treatment in hospital, the Ministry of Justice can send you back to prison.

If you want to go back to prison, you can apply to the Mental Health Tribunal. If the tribunal doesn't think you need to be in hospital, it’ll tell the Ministry of Justice. They may transfer you back to prison.

If you don't go back to prison, you’ll stay in hospital until you’re sentenced. The criminal courts will then decide the most appropriate way to deal with your case.

If you were in an Immigration Removal Centre before being sent to hospital, then in most cases you will be released into the community. Or you could be sent back to the Immigration Removal Centre.

Once you’re discharged from section 48, you’ll be eligible for free section 117 aftercare.

Can I challenge a section 48/49 transfer?

The Ministry of Justice is responsible for deciding whether you should be transferred to hospital, or transferred from hospital back to prison. You can 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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