Transfer

The transfer of patients is governed by s19.

It provides that regulations may be made for

(a) the transfer of patients from liability to detention in hospital to another hospital or to guardianship or

(b) the transfer of those subject to guardianship to be transferred to another guardian or to hospital (s19(1)).

The relevant English regulations are the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008.

	Deemed start date of section	Tribunal eligibility periods
Transfer between hospitals (when under s2, s3 etc)	No change (s19(2)(a)).	No change.
Transfer between guardians	No change (s19(2)(c)).	No change.
Transfer from guardianship to hospital	No change (s19(2)(d)), i.e. as if detention started when guardianship did	Application within 6 months of transfer (s66(1)(e)) and the usual subsequent applications on renewal (s66(1)(f).
Transfer from hospital to guardianship	No change (s19(2)(b)), i.e. as if guardianship started when detention did	Probably similar to the above: Application based on the original detention date if the deeming provision for Part 2 in s19(2)(b) could be treated as applying to Part 5 so that the patient is treated as having been “received into guardianship in pursuance of a guardianship application” for the purposes of s66(1)(c). Otherwise the right to apply following admission to hospital (s66(1)(b)) might continue. Application during each renewal period (s66(1)(f). A tribunal application made while the patient is detained under s3 continues even after transfer to guardianship.

Following the Court of Appeal’s decision that the nature of the decision-making process as to whether a patient should be transferred from medium to high security is such as to engage a common law duty of fairness (R (L) v West London MH NHS Trust [2014] EWCA Civ 47^M), the 2015 Code of Practice states:

37.22 In the case of transfers to high security psychiatric hospitals, unless the circumstances are urgent or there would be clinical risks to the patient or others or there is some other significant reason to make it inadvisable, the relevant hospital managers should:

give the patient and/or their representative sufficient information and opportunity to make written representations to the admissions panel of the receiving hospital. At a minimum this will be a summary (if the documents are not provided) of:
the letter of reference from the hospital that wishes to transfer the patient to the high security hospital

the assessment by the clinician from the high security hospital; and any other accompanying reports and/or documents the hospital managers think should be shared in the interests of fairness, and

if the assessing doctor is invited to attend the deliberations of the admissions panel, the hospital should consider whether the patient and/or their representative should be invited to attend or be represented at those deliberations.

Another case involving a patient (unsuccessfully) judicially reviewing a decision to transfer him to a high secure hospital was R (YZ) v Oxleas NHS Foundation Trust [2017] EWCA Civ 203^M, [2017] MHLO 14. The court stated that in such cases:

[T]he court will pay the highest regard to the bona fide professional judgement of the responsible clinician. … [S]uch judgement would generally be sufficient evidence on which a court could determine the lawfulness of the decision to transfer, absent compelling evidence to the contrary.

Restricted patients cannot be transferred without Ministry of Justice approval.

The Secretary of State’s power under s123 to transfer patients in high secure hospitals to another high secure hospital (s123(1)) or to a non-high-secure hospital (s123(2)) was repealed on 1/7/12 by the Health and Social Care Act 2012.

Cross border transfers are governed by Part VI of the MHA 1983. See Department of Health, ‘Cross-border transfers of patients under the Mental Health Act’ (gateway ref 14651, 2/9/10)

Transfer

See also