Discharge of s47/49 prisoners from hospital by Parole Board

I’m writing the next Legal Action article about mental health law, and am considering being slightly critical of the Court of Appeal Criminal Division. It seems that various Court of Appeal judges think that a s47/49 prisoner either can’t be discharged straight from hospital or won’t get psychiatric follow-up in the community (and that these are reasons to replace a prison sentence with a restricted hospital order).

In my experience of s47/49 transferred prisoners being discharged from hospital, the offender manager is invited to CPA meetings prior to the Parole Board hearing, and while the offender manager takes as the lead as far as supervision and recall are concerned, there is a whole multi-disciplinary team in the community in the same way as for a hospital order patient.

Is this not what generally happens?

Here are some quotations to set out the background. (I’m sure there are others, but these are the recent cases that need to be mentioned in the article anyway.)

In R v Miller [2021] EWCA Crim 1955 the court seems to imply that the s117 aftercare duty doesn’t apply to s47/49 or s45A patients. I’ve always assumed it does, because those sections are specified in s117 itself, even when the patient is released from hospital by the Parole Board.

By virtue of section 117 of 1983 Act, where a person who has been detained in hospital pursuant to a hospital order ceases to be so detained and leaves hospital, the local Clinical Commissioning Group or Local Health Board, and the local Social Services authority, are under a duty to co-operate with other relevant agencies and to provide aftercare services. There is no corresponding statutory duty where a prisoner is released on licence and there is therefore less certainty as to whether specialist medical supervision and care will be provided.

In R v Crerand [2022] EWCA Crim 962 the court seems to think that a transferred prisoner can only be released by the Parole Board by first being returned to prison, which is not true:

We note that the applicant is highly unlikely ever to be returned to prison for the reasons Dr El-Metaal gave. In those circumstances it is highly unlikely that he will be considered for release by the Parole Board.

In R v Surrey [2022] EWCA Crim 1379 the court makes a decent point about a condition to take medication (though as a matter of law the patient’s compliance with a tribunal’s medication condition is treated as being voluntary) but again seems to think the prisoner couldn’t have MDT involvement after release in addition to the probation officer.

They agreed with the list of factors identified in Dr Ross and Dr Carthy’s Joint Report, and explained that it was “vitally important” that compliance with medication could be imposed as a condition upon release, if that was through the mental health regime, by a Mental Health Tribunal. The same conditions on taking medication are simply not possible if release of a person is sanctioned by the Parole Board. It is also far less likely that a probation officer, who would be responsible for supervising him upon release, would be able to spot early signs of any deterioration in his mental health compared to a multi-disciplinary clinical team who would be responsible for him if he were released by a Mental Health Tribunal.

We discharge our Section 47/49 patients from our MSU to the community. In most, if not all cases, there is clear evidence that a return to custody would likely result in a relapse in their mental health. This risk is clearly set out in reports for the MHRT to make it clear that we are not supporting a return to custody. PB will then follow.

The OM is invited to the patient’s CTP Review meeting, and to be fair the care pathway is set out at the point we apply for escorted and then unescorted leave, that we are looking to support and manage the patient in the community. Typically discharge is to 24/7 specialist mental health placements funded by the responsible Local Health Board and Local Authority, all through Section 117 Aftercare.

Our MSU provides aftercare typically for 12 months, and at the 6 month point we can ask the local area team to increase their involvement, so that at the 12 month CTP Review we withdraw our input, and the local team is then responsible alongside the OM.

‘Lifers’ and IPP will always have NPS as the lead agency, and there have been occasions when the OM has recalled to custody when it would have been more beneficial that the person was diverted to a MHU.

It can get interesting when we have dual section patients, where there is a 41 sitting alongside a life licence. Two clear recall regimes are then in play.

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Thanks. That’s exactly what I hoped someone would say.

I suppose the other scenario would be a prisoner who was at one point in hospital under s47/49 or s45A but is released from prison without receiving any mental health aftercare under s117. Though I imagine that when mental disorder is a risk factor then the Parole Board would enquire into aftercare before releasing.

When we have returned patients to Prisons, if they remain local, then our Responsible Clinicians that cover the Prison will at times offer input or a follow up if required. This can be both informal and formal.

We will also attend the initial Level 2 MAPPA following remission, which has been arranged by the OM. In the Level 2 we discuss aftercare and requirements for input from mental health. If we have followed the remission process fully, the Prisoner will also have a Care and Treatment Plan in place, and will also qualify under Part 3 of the Mental Health Measure, where they can request an assessment within the next 3 years.

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