Consequence of notional conditional discharge for s.47/49 IPP patient

Law and practice Mental Health Tribunal
1

When a patient on a s.47/49 IPP is conditionally discharged at the mental health tribunal, do they transfer to a notional section 37 or do they remain on the same section just with a notional conditional discharge decision.

2

The tribunal make a recommendation that if the patient were detained under s37/41 they will be eligible for conditional discharge

The patient will either be returned to prison or the tribunal may recommend the patient remains in hospital and awaits a Parole Board review

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3

To be clear, the Tribunal cannot discharge a patient who is subject to s47/49. If they make a recommendation this triggers a Parole Board which can be many months later. The PB make their own independent decision to release. The patient is released subject to Licence and not subject to conditional discharge.

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4

Thank you, this was my understanding that they are notionally conditionally discharged but if they remain in hospital rather than remitted to prison do they remain on a s.47/49?

5

Yes and I would not describe this as a ‘notional conditional discharge’ as the patient simply remains on 47/49 until and unless the PB release.

6

As Karen says, they remain on s47/49. That’s true whether they remain detained in hospital or (unusually) are actually conditionally discharged.

(“Notional s37” typically refers to a s47 after s49 restrictions have ended, so not relevant here. And there isn’t really such a thing as a “notional conditional discharge”. The Tribunal can’t actually order conditional discharge itself for these patients, it can only say that they would have been entitled to one if they’d been on s37/41 instead of 47/49. It’s the Secretary of State (SofS) who decides whether to allow a conditional discharge. If they remain in hospital it is because the SofS has refused them conditional discharge.)

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7

This is covered at Sections 47, 48 and 49: transferred prisoners - Mental Health Law Online. In ideal world I’d replace some of the text with a flowchart.

The situation of the s47/49 patient who’s had a “conditional discharge” notification and a “stay in hospital” recommendation is an anomaly (at least after the hypothetical decision could be implemented) as he doesn’t really meet the MHA detention criteria but remains detained anyway.