for better mental health

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.

What is a section 48/49?

If you are on remand in prison or in an Immigration Removal Centre, you can be sent to hospital for treatment under section 48. Usually the Ministry of Justice will 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 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.

This information was published in July 2018. We will revise it in 2021.

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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