Ministry of Justice

The London-based Mental Health Casework Section of the MOJ is responsible for carrying out the Justice Secretary's functions under Part 3 of the Mental Health Act 1983 and related legislation. It is only concerned with restricted patients. Decisions are made by civil servants (caseworkers and their supervisors). In general they make their decisions having considered written reports received from the treating team and/or recommendations from the Mental Health Tribunal, and very occasionally a caseworker might attend a hospital meeting.

Name changes

The Department of Constitutional Affairs was, in May 2007, renamed the Ministry of Justice. The Ministry of Justice took over, amongst other things, the Home Office's Mental Health Unit.

In November 2009 the Mental Health Unit became the Mental Health Casework Section; along with the Public Protection Casework Section and other sections, it became part of the Public Protection and Mental Health Group, which later became the Safer Custody and Public Protection Group. In 2017/18 it is called the HM Prison and Probation Service (HMPPS) Mental Health Casework Section.

Role in restricted cases

The following actions require the Secretary of State's consent:

  • Leave of absence under s17. Note that permission is not required for hospital ground leave unless a specific hospital unit/ward has been specified in the hospital order (or equivalent) which led to the admission: see Power to specify hospital units for details.
  • Transfer to another hospital under s19.
  • Discharge from section under s23 (although the MHT are empowered to discharge without consent).

The following are some of the Secretary of State's powers:

  • To remove the restrictions (s42(1)), leaving the patient as if he had been made an unrestricted patient on the date the restrictions ceased (s41(5)).
  • To grant either a conditional discharge or an absolute discharge (s42(2)).
  • To recall a conditionally discharged patient to hospital so that he becomes a restricted patient once again (s42(3)).
  • To transfer a serving prisoner from prison to a hospital (s47), with or without restrictions (s49), and to transfer him back to prison when appropriate.

Other MoJ responsibilities

The Ministry of Justice sponsors the following:

External links

Main page on their website

Contact list

MOJ/MHT Protocol

Leave of absence

  • General consent granted for medical leave. Natalya O'Prey, 'Authority to use medical leave' (Dear Colleague letter from MHCS to all hospitals detaining restricted patients, 18/4/19) — The Secretary of State for Justice has provided all responsible clinicians at any hospital with general consent to exercise their power to grant leave for medical treatment. This general consent does not apply to (a) patients who already have specifically-agreed terms for medical leave; or (b) "high profile" cases (i.e. those which merit attention from a senior manager at all stages). The precise terms are set out three annexes: (A) any restricted patient at high secure hospitals; (B) section 45A, 47/49, and 48/49 patients in other hospitals; (C) section 37/41 or equivalent in other hospitals.

Conditions of discharge

  • Colin Harnett, 'Changing discharge conditions - residence' (Dear Colleague letter from Head of Mental Health Casework Section, 17/12/15). In response to a case in which the MOJ had not closely managed a patient's movements (it had not registered a change of address), the following policy will apply from 4/1/16: (1) All conditionally-discharged patients will have a condition giving an actual residence address, and RCs will not have a discretion to move patients without providing 14 days' notice; (2) If the tribunal does not specify an address the MOJ will add one; (3) Existing conditions will be re-examined on receipt of conditionally-discharged patient reports and conditions may be amended (to add an address or remove the RC's discretion to move the patient); (4) Discharges by the MOJ will also accord with this policy; (5) Dialogue with the MOJ before the 14-day point is encouraged.
  • HM Prison and Probation Service, 'Mental Health Casework Section: Guidance: Discharge conditions that amount to deprivation of liberty' (January 2019) — The aim of this this operational policy is to ensure that, where appropriate, restricted patients can continue their rehabilitation in a community-based setting following the Supreme Court's decision in SSJ v MM [2018] UKSC 60. For patients who lack capacity to consent to deprivation of liberty and the risk is to themselves, the solution is to allow conditional discharge with deprivation of liberty authorised under the Mental Capacity Act 2005. For patients who lack capacity and the risk is to others, and also for patients who have capacity, the solution, if further treatment and rehabilitation could be given in a community setting, is to consider long-term s17 escorted leave (use of the inherent jurisdiction is not considered to be the correct approach). The leave of absence would be for an initial period of up to 12 months. For patients already on conditional discharge, the following options will be considered: (a) variation of conditions; (b) recall, with or without instantaneous grant of escorted leave to the current placement; (c) absolute discharge; (d) referral to tribunal. The policy mentions reassessing patients who present risks to themselves in order to see if they lack capacity after all, which may an MCA authorisation possible.

Personality disorder

MCA 2005

Other

  • MHCS Newsletter 29/4/10 - deals with absolute discharge and the transfer to hospital of prisoners who are close to the end of their sentence