Just want to ensure that I’ve understood correctly what happens to prisoners who receives a transfer direction with a restriction order (section 47/49)
If the original fixed term sentence ends whilst they still in hospital, is the restriction order is then removed and they are just subject to S47, in which case they can then be discharged by their RC/tribunal etc?
Whilst in hospital, but prior to the end of a fixed term sentence, I believe that the MoJ could agree a conditional discharge, for example when there is no further treatment in hospital and a return to prison isn’t felt appropriate. However, if the fixed term sentence then ends whilst whilst conditionally discharged, would the person then be considered absolutely discharged? Does this happen automatically and does anyone have experience of this? (I’m looking at S42 which suggests this is how it would work, but haven’t seen it in practice)
Finally, is it there the case then that if the person is conditionally discharged but they are on an indeterminate sentence or indefinite licence, would they remain on this until the MoJ agree an absolute discharge?
s49 restrictions end automatically on a sentenced prisoner’s “release date” (as defined in s50(3)).
So if they’re still in hospital at that point, they remain on s47 only (known as a “notional s37”) and can be discharged by the RC or Tribunal without MoJ’s involvement.
In the (extremely unlikely) event that MoJ agreed to conditionally discharge someone on s47/49, their conditional discharge would end on their release date and as a result they would automatically be absolutely discharged (unless they’d already been recalled to hospital) (s42(5)). The same would be true in the (almost as unlikely) event of MoJ agreeing to allow the Tribunal to conditionally discharge them under s74.
Because an indeterminate sentence, by definition, has no “release date”, a person conditionally discharged (by MoJ or the Tribunal) while serving such a sentence would remain so until absolutely discharged by MoJ or by the Tribunal (under s75(3)).
But, as I say, these are highly unlikely scenario, because MoJ’s policy is that serving prisoners will only be discharged from hospital into the community in exceptional circumstances. Indeed so unlikely that MoJ’s overview guidance on restricted patients (HMPPS, ‘Mentally disordered offenders - the restricted patient system’ (22/12/17)) doesn’t even mention the possibility of MoJ doing it without a Tribunal recommendation.
Steve is right. The s49 restriction direction ends and only the s47 hospital direction remains. This happens on the release date (s50(2), defined in s50(3)). The time periods for renewal and tribunal eligibility are calculated from this new date (see s41(5) and s49(2)).
I think what you’re thinking of is the Secretary of State’s power to remit the patient to hospital when notified by the RC/AC or tribunal that the patient “no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital to which he has been removed” (s50(1)) (the same power also allows whatever release on licence or discharge under supervision which would have been exercisable from prison to happen from hospital).
The Act states that a s49 restriction direction “shall have the same effect as a restriction order made under section 41” (s49(2)). The Secretary of State can conditionally or absolutely discharge a s37/41 restricted hospital order patient (s42(2)) and if the patient is deemed to be absolutely discharged if restrictions end when he is on a conditional discharge (s42(5)). In theory this could apply to restricted transferred prisoners but I think the key to understanding discharge of restricted patients is that restricted hospital order patients get discharged via the MHA (conditional or absolute discharge) and restricted transferred prisoners get discharged via the criminal justice system (return to prison or release on licence). In relation to lifers, a change of policy was announced in Parliament in 1985, stating that s42 conditional discharge would no longer be used but instead release under s50 via the criminal justice system (it is quoted in Jones, 25th edition, para 1-718, p352). That policy seems to apply the same with determinate sentence prisoners. I believe that possibly the Secretary of State might still agree to a MHA discharge in really exceptional cases (e.g. on compassionate grounds if the patient is on death’s door) but generally you can ignore that possibility. I can’t imagine the Secretary of State in the normal run of things ever agreeing to a conditional discharge during a prison sentence.
The only time I can think of when this would have happened automatically was when time-limited restriction orders existed: if a s37/41 patient had a 4-year restriction order and got a conditional discharge after 2 years of the hospital order, the absolute discharge would take place automatically at the 4-year point. I suppose in theory if a restricted transferred prisoner were conditionally discharged then the same would happen at the s50 release date, though (as above) that’s unlikely ever to happen in practice.
As above, indeterminate sentence prisoners are generally released via the criminal justice system (with the further exception of “technical lifers”, transferred prisoners who are treated as hospital order patients – I was told in July 2015 that there were 37 still in existence, 17 of whom had been conditionally discharged). So the chances are that the indeterminate sentence prisoner on s47/49 would have a Mental Health Tribunal hearing but subsequently be released by the Parole Board on life licence instead of a conditional discharge. An unrestricted 47 patient (who had had a determinate sentence) might be discharged and still be subject for licence for a while, but this would end when it normally would.
We must have clicked “Send” within seconds of each other. I have just noticed your more succinct reply, and agree with everything you have written. Thanks.
