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.
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Section 48/49 transfer to hospital before sentencing
When can I be given a section 48/49?
Section 48 can only be used before you have been sentenced. After that you can be transferred from prison to hospital under section 47.
If the prison or Immigration Removal Centre think you are unwell and need to go to hospital, they can ask the Ministry of Justice to agree. They must send reports from two doctors saying that:
- you have a 'mental disorder' which means you should be in hospital for treatment
- you are 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. This 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.
How long will I be in hospital?
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 (see our pages on leaving hospital for more information on how to do this). If the tribunal doesn't think you need to be in hospital, it will tell the Ministry of Justice, who may transfer you back to prison.
If you don't go back to prison, you will stay in hospital until you are sentenced. The criminal courts will then decide the most appropriate way to deal with your case.
Once you are discharged from section 48, you will be eligible for free section 117 aftercare.
Can I challenge the transfer?
The Ministry of Justice is responsible for deciding whether you should be transferred to hospital or 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.
Judicial review
This is a type of court procedure where a judge reviews a public authority’s decision, policy, practice, act or failure to act, and decides whether it is lawful or not.
If it is not lawful, the court may cancel the decision or action (‘quash’ it), and require the public authority to reconsider it, lawfully. The court can order the authority to do or not do something.
Visit our full listing of Legal TermsSection 117 aftercare
Some people who have been kept in hospital under the Mental Health Act can get free help and support after they leave hospital. The law that gives this right is section 117 of the Mental Health Act, and it is often referred to as 'section 117 aftercare'.
Health authorities and local social services have a legal duty to provide you with section 117 aftercare if:
- you've been detained under Mental Health Act sections 3, 37, 47 or 48, but have left hospital, or
- you're under a community treatment order (CTO).
Mental Health Tribunal (MHT)
This is a special court that deals with cases relating to the Mental Health Act 1983. The Tribunal decides whether you can be discharged from your section. It can sometimes make recommendations about matters such as hospital leave, transfer to another hospital, guardianship and community treatment orders (CTOs).
The court is made of a panel, which normally includes:
- a legally qualified chairperson
- a ‘lay member’ who has appropriate experience and qualifications in the area of mental health
- an independent psychiatrist, who will speak to you and examine you before the tribunal hearing in certain circumstances, and when you request to see them
Where you see a reference to the Mental Health Tribunal in this guide, it means:
- First Tier Tribunal (Mental Health), if you live in England, or
- Mental Health Review Tribunal for Wales, if you live in Wales.
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.
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.
