MHA 1983 s47
Revision as of 21:24, 3 June 2010 by Jonathan
See Transfer direction for details and useful external links.
Changes made by Mental Health Act 2007
- Mental disorder no longer split into separate classifications 3/11/08
- Appropriate treatment test replaces treatability test and applies to all patients under long-term detention 3/11/08
Any cases with a hyperlink to this legislation will automatically be added here. There may be other relevant cases without a hyperlink, so please check the mental health case law page.
- AG's ref (no 54 of 2011)  EWCA Crim 2276 — (1) The restricted hospital order was quashed and a six-year IPP imposed. The judge had failed to take into account the differences between the two regimes: (a) release on licence from IPP depends on lack of danger for any reason, whereas release from hospital order depends on lack of danger for medical reasons only; (b) an IPP licence can be revoked for danger resulting from crime, whereas a conditional discharge can only be revoked if the medical condition relapses. It was essential in this case that the power to recall upon criminal relapse was available. (2) The s45A hybrid order regime would have been perfect in this case, but it is only available to those subject to imprisonment; however, the defendant was under 21 and imprisonment is only available to those 21 or over (the court recommended that this be reconsidered). (3) The notional determinate term of 12 years was not unduly lenient. (4) The hearing was adjourned in order to allow for an immediate s47 transfer ..→
- MP v West London Mental Health NHS Trust  UKUT 231 (AAC),  MHLO 81 — In the final days of his determinate prison sentence, MP was transferred to Broadmoor under s47 in order to prolong his detention. The tribunal recommended transfer to an MSU, which proved impossible; when it reconvened it granted discharge, delayed for 10 weeks for appropriate after care arrangements to be made. A salaried tribunal judge accepted the trust's argument that there had been inadequate reasons for discharge: she reviewed and set aside the decision, and refused the patient's application for her decision to be set aside. As these were excluded (unappealable) decisions, the patient sought judicial review. (1) The review decision, although made without receiving representations from the patient, was not made unfairly. (2) Taking account of the two relevant principles - that (a) the review power should only be exercised in clear cases, and (b) the Upper Tribunal should seldom interfere with review decisions when judicial review proceedings are brought, because the review ..→
- R (DK) v SSJ  EWHC 82 (Admin) — DK's s47 transfer was based on the report of a doctor and a psychologist which dealt with the treatability of his psychopathic disorder, and three proforma reports from doctors which did not deal with treatability. As treatability was not addressed, with reasons, by two medical practitioners, the transfer decision was quashed. [Caution: decided before 2007 Act amendments.]
- R (D and M) v SSWP  EWCA Civ 18 — (1) That prisoners detained under s47, s47/49 or s45A, in contrast with civil patients or hospital order patients, receive no welfare benefits until their release date is not unlawful discrimination under Article 14 taken with A1P1. (2) On a proper construction of the statutory language, lifers detained under the MHA are entitled to Income Support or State Pension Credit when they reach their tariff expiry date. [Caution.]
- R (F) v SSJ  EWHC 2912 (Admin) — The medical opinions were based on old assessments and were at best ambigious as to the treatability test; so the decision to transfer under s47 MHA 1983 was Wednesbury unreasonable, and the subsequent detention was unlawful under domestic law and Article 5; (obiter) the decision would not have been ultra vires; based on subsequent reports, the decision would not be quashed, as if the defendant had sough to clarify the medical opinions the decision would have been lawful. [Caution.]
- R (Gilkes) v SSHD  EWHC Admin 47 — One of the two medical reports was too out-of-date to be reasonably relied upon for a s47 transfer to hospital; a transfer at the end of a prison sentence was not inherently unlawful; based on subsequent material from the same doctor, no relief would be granted as if the Secretary of State had insisted on an up-to-date report he would have made a transfer direction anyway.
- R (MN) v MHRT  EWHC 3383 (Admin) — Tribunal application made under s70 when patient subject to s47/49 (restricted transfer direction) lapses when s49 (restriction direction) lapses; to avoid delay, the application can be treated as if it were an application under s69(2)(a).
- R (Miah) v SSHD  EWHC 2569 (Admin) — Criminal sentence continues after s47 (notional s37) transfer, and after discharge from section; as does any licence period and power to recall for breach.
- R (RW) v SSJ  EWHC 2082 (Admin),  MHLO 87 — The responsible clinician and tribunal were of the view in March 2011 that the patient required continued treatment in detention in hospital, and the tribunal recommended transfer from Broadmoor to a medium secure unit; in June the RC sought permission for trial leave to a MSU, with return to prison being the planned consequence if it were unsuccessful; trial leave in September was unsuccessful and, that month, the Secretary of State remitted the patient to prison on the RC's advice. (1) There had been new information since the tribunal which put a different complexion on the case, namely the unsuccessful trial leave, so the Secretary of State was entitled to take at face value the RC's new opinion that the patient did not require treatment in hospital for mental disorder. (2) It was not necessary for the Secretary of State to consider that lack of treatment in prison might breach Article 3 or require almost immediate re-transfer to hospital; the correct approach was to consider ..→
- R (SP) v SSJ  EWHC 13 (Admin) — The requirements of Article 2 concerning an investigation into the treatment of the claimant while she was serving a sentence of detention in a young offender institution.
- R (SP) v SSJ  EWCA Civ 1590 — The Secretary of State for Justice was entitled to rely on a medical recommendation under s47 which did not explicitly address the new 'appropriate treatment' test: (1) his case workers are not concerned to pursue medical reasoning, but only to see whether the expert had given some reasons which they considered adequate and did not conflict with the facts known or the statutory requirements; (2) he was entitled to give the reports a sensible meaning, and to satisfy himself that the 'appropriate treatment' test was met by reference to matters which had been in the report by necessary implication. [Summary based on All ER (D) report of ex tempore judgment]
- R (TF) v SSJ  EWCA Civ 1457 — (1) Having found that the transfer direction under s47 was unlawful the judge erred by exercising her discretion to refuse relief: an unlawful detention cannot be transmuted into lawful detention by the withholding of relief. (2) A decision to transfer a prisoner to hospital at the end of his sentence deprives him of his liberty and engages Article 5, thus heightening the scrutiny as to the evidence the MoJ and court must apply, and putting the onus on the MoJ to show that the decision maker focused on each of the criteria. (3) Applying this scrutiny it would have been very difficult for the MoJ decision maker to be satisfied that the two reporting doctors had applied their minds to treatability, and it appeared that the decision maker herself had not applied her mind to that question; the decision was therefore unlawful. [Caution.]
[The chapter/paragraph numbers which appear below (if any) refer to the 2008 versions of the Code of Practice and Reference Guide.]
- Reference Guide to the Mental Health Act 1983, 8. Transfer of sentenced prisoners to hospital [Note that the chapter number relates to the old Reference Guide] — chapter 8
- Mental Health Act 1983 Code Of Practice for England, 33. Patients concerned with criminal proceedings
Removal to hospital of persons serving sentences of imprisonment, etc
47.—(1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners—
- (a) that the said person is suffering from [mental disorder]; and
- (b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment[; and
- (c) that appropriate medical treatment is available for him;]
the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital [...] as may be specified in the direction; and a direction under this section shall be known as "a transfer direction".
(2) A transfer direction shall cease to have effect at the expiration of the period of 14 days beginning with the date on which it is given unless within that period the person with respect to whom it was given has been received into the hospital specified in the direction.
(3) A transfer direction with respect to any person shall have the same effect as a hospital order made in his case.
(5) References in this Part of this Act to a person serving a sentence of imprisonment include references—
- (a) to a person detained in pursuance of any sentence or order for detention made by a court in criminal proceedings [or service disciplinary proceedings] (other than an order [made in consequence of a finding of insanity or unfitness to stand trial] [or a sentence of service detention within the meaning of the Armed Forces Act 2006]);
- (b) to a person committed to custody under section 115(3) of the Magistrates’ Courts Act 1980 (which relates to persons who fail to comply with an order to enter into recognisances to keep the peace or be of good behaviour); and
- (c) to a person committed by a court to a prison or other institution to which the Prison Act 1952 applies in default of payment of any sum adjudged to be paid on his conviction.
[(6) In subsection (5)(a) “service disciplinary proceedings” means proceedings in respect of a service offence within the meaning of the Armed Forces Act 2006.]
- Mental Health Act 2007 s1 & sch 1, s4, s 55 & sch 11; Mental Health Act 2007 (Commencement No.7 and Transitional Provisions) Order 2008 wef 3/11/08
- Crime (Sentences) Act 1997
- Armed Forces Act 2006; Armed Forces Act 2006 (Commencement No 5) Order 2009/1167 (1/10/09)
- Domestic Violence Crime and Victims Act 2004