Section 47/49

Section 47/49– Transfer direction with restrictions

Legal Criteria

If you are detained under Section 47/49 Mental Health Act 1983 (as amended) (MHA 1983) you are a sentenced prisoner who was handed down a custodial sentence but later been transferred to a hospital on the recommendation of two doctors that you need treatment for mental disorder and it is necessary in the interests of your own health, safety or for the protection of others that you receive this treatment in hospital. The Ministry of Justice must agree with the advice of the two doctors and issue a transfer warrant enabling you to be transferred from prison to a psychiatric hospital to receive appropriate medical treatment.

Section 49 is a restriction direction which can be placed on a patient transferred from prison to hospital under Section 47. This addition to the transfer direction means you cannot be transferred to a different hospital, granted Section 17 leave or be discharged from hospital without the Secretary of State for Justice’s consent.

Duration

If you, or your relative, are detained under Section 47/49 MHA 1983, and you have a determinate custodial sentence, the Section 49 restriction direction lasts until your release date from prison. Following this date, you can be detained only under Section 41(5) and referred to as a Section 37(notional) patient. The Section 41(5) can be renewed by your doctor. If it is considered that you continue to meet the criteria for detention under Section 41(5) towards the end of the first 6 month period, your Doctor can renew the section for a further 6 months. If it is considered that you continue to meet the criteria for detention under Section 41 (5) towards the end of the second 6 month period, your doctor can renew your section for a 1 year period. Your section can then continue to be renewed annually.

If you, or your relative, have an indeterminate custodial sentence, the Section 49 restriction direction will continue until you are discharged from Section and returned to prison or discharged into the community.

Rights

You should be informed of your rights by a member of hospital staff as soon as possible into your admission.  You have the right to:-

  • Information about your section and the reasons for detention.
  • Information about consent to treatment.
  • Information about your rights of appeal to the Mental Health Tribunal.
  • Information about how to contact a suitably qualified solicitor.
  • Information on how to obtain the help and support of an Independent Mental Health Advocate (IMHA).
  • Information about correspondence and visitors.
  • Information on how to make a complaint.
  • Information about safeguarding.
  • Information about the Care Quality Commission.

Consent to Treatment

Medication can legally be given to you without your consent for the first 3 months of your admission to hospital. After 3 months, staff can only treat you without your consent if a ‘Second Opinion Approved Doctor’ (SOAD) approves the treatment unless it is an emergency. Staff can only give you some treatments, like electro-convulsive therapy (ECT), if certain criteria are met.

Discharge from Section

To be discharged from Section:

  1. Your Responsible Clinician (your doctor in the hospital in which you are detained) can recommend to the Secretary of State for Justice that you should be discharged and, if you are serving a indeterminate custodial sentence, can comment on whether you should remain in hospital pending a review by the Parole Board or returned to prison;
  2. The Tribunal can notify the Ministry of Justice that you no longer meet the criteria for detention under MHA 1983 and they can recommend whether you should continue to be detained in hospital or returned to prison.

Tribunal Procedure & Powers

You have one right to appeal to the Mental Health Tribunal during the first 6 months of your detention, one during the second 6 months of your detention and then on a yearly basis. For example, if you were detained under Section 47/49 on 3 January, the last day you could submit an application to the Tribunal would be 2 July. You would then have one right of appeal between 3 July and 2 January and then you would have one right of appeal between 3 January and 2 January of the following year.

Once you have submitted your application to the Tribunal, a Tribunal Hearing should take place within 12-14 weeks of the Tribunal Services receiving your application. Reports will be prepared by your doctor, your social worker/care coordinator and a nurse and these will be made available to you, the Tribunal Panel and the Ministry of Justice. The Ministry of Justice will provide their comments on your detention and provide a copy of your Police National Computer (PNC) record.

In the Tribunal Hearing, the Tribunal Panel will hear evidence from your doctor, your social worker/care coordinator and a nurse. You will also have the opportunity to provide evidence.

The Tribunal Panel cannot discharge you from hospital without the agreement of the Ministry of Justice. They have the power to notify the Ministry of Justice that if you were detained under a Section 37/41 hospital order they would grant you either an absolute discharge or a conditional discharge from section as you no longer meet the criteria for detention under MHA 1983. The Tribunal can also recommend whether you should remain in hospital if you are not discharged by the Ministry of Justice. If you have not reached the end of your sentence or tariff (for indeterminate sentences) the Ministry of Justice may return you to prison. If you have reached your tariff, the Ministry of Justice will refer your case to the Parole Board and, dependent upon the Tribunal’s recommendation, you may remain in hospital until your Parole Board hearing or you may be returned to prison. It is then the Parole Board’s decision as to whether you are released from prison or hospital.

The Tribunal Panel can also make non-binding recommendations that you should be transferred to a different hospital or granted Section 17 leave. As the recommendations are non-binding, the Tribunal has no obligation to consider whether or not they should be made and there is no way to ensure they are acted on by your treating team even if they are made.

What can Biscoes Solicitors do?

  • Meet with you promptly in hospital to advise you about your Section and your rights, including your right to appeal to the Tribunal to seek discharge from hospital/return to prison/non-binding recommendations for transfer to another hospital or the granting of Section 17 leave.
  • Advise you regarding consent to treatment issues.
  • Review your Section papers and assess their legality.
  • Submit an application to the Tribunal on your behalf.
  • Contact your treating team to find out their plans for your admission.
  • Attend Care Programme Approach (CPA) meetings and Section 117 aftercare meetings with you or on your behalf.
  • If you have a Learning Disability, we can request Care and Treatment Reviews (CTRs) and attend them with you or on your behalf.
  • Represent you in a Mental Health Tribunal Hearing.
  • Advise you on your rights to aftercare under Section 117 MHA 1983.

India Jefferson-Grant is the Mental Health Law specialist in our Mental Health and Capacity Department and is a member of the Law Society’s Mental Health Accreditation Scheme having been independently assessed as an expert in Mental Health Law. If you have been detained under Section 47/49 MHA 1983 and need legal assistance, you can contact India on 02392 660 261 or IJefferson-Grant@biscoes-law.co.uk.