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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.
Section 48/49 transfer to hospital before sentencing
This page covers:
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 page on how to complain about health or social care for more information on how to do this.
Judicial review
Judicial review is a type of court procedure where a judge reviews a public authority’s decision, policy, practice, action or failure to act. And they decide whether it's lawful or not.
If they decide it's not lawful, the court can cancel the decision or action (‘quash’ it). They can also order the public authority to reconsider it.
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. It's often referred to as 'section 117 aftercare'.
Health authorities and local social services have a legal duty to give you 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 other matters. Such as hospital leave, transfer to another hospital, guardianship and community treatment orders (CTOs).
The court consists of a panel, which normally includes:
- A chairperson with a legal qualification
- A ‘lay member’ with appropriate experience and qualifications in mental health
- An independent psychiatrist. They will speak to you and examine you before the tribunal hearing in certain circumstances. Or 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
- 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're sectioned under the Mental Health Act.
Certain decisions can only be taken by the responsible clinician. For example, applying for someone who is sectioned to go onto a community treatment order (CTO).
All responsible clinicians must be approved clinicians. They don't have to be doctors, but 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, 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
Mental Health Act 1983 (MHA)
The MHA is a law that applies to England and Wales. It allows people to be detained in hospital (sectioned) if they have a mental health disorder and need treatment. You can only be kept in hospital if certain conditions are met.
See our pages on the Mental Health Act for more information.
Visit our full listing of Legal TermsThis information was published in April 2024. We'll revise it in 2027.
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