Thanks for taking the time to reply Guy.
The area I am unclear about is what steps occur after the sentence is confirmed - because I don’t think you can automatically physically serve your sentence whilst under s37/41?
The s37/41 has to somehow cease before moving them to prison or someone with the legal authority decides like the SoS whether the sentence is served or not?
So that goes back to my point further up the thread; the effect of s.22 (and Schedule 1) means that someone subject to 37&41, can serve time in prison, be it on remand or sentenced. It is not brought to an end but continues to run in the background and then once the imprisonment comes to an end, the person can be ‘retaken’ to hospital and detained there in accordance with the 37&41.
Referring to Guy Davis’s question “Are you saying that at the point…..” That hardly seems a feasible scenario since it risks undermining the independence of the Court and its jurisdiction.
Returning to ClarkMar’s comments on the 26.10.25 about having “worked with several patients originally detained under s37/41who are later convicted of another offence and received a prison sentence which they served…The s37/41 sat in the background…”
I appreciate I may be asking a great deal of ClarkMar here, but it may hopefully provide ultimate clarity on this issue if the following could be documented:
I have to say that I agree with Guy and Marion. Any other approach would have the tail wagging the dog. The only scenario I can think of where a hospital order patient might stay in hospital after a prison sentence would be a mandatory life sentence for murder, but that would be using s47/49 rather than treating the sentence as just “in the background”, and the judge would know so in reality it would not be countermanding the criminal court.
I’ve made an FOI request that might shed some light on this for us.
In the past year, or in the most recent year for which you have records:
How many restricted or unrestricted hospital order patients were subsequently sentenced to a term of imprisonment for a different offence?
How many sentenced prisoners were subsequently sentenced to a restricted or unrestricted hospital order for a different offence?
These scenarios (especially the second) are likely rare, but is there a written policy or unwritten approach that you follow?
If you have statistics for earlier years then please supply them.
If you can only partially answer the questions (e.g. for restricted patients only) then please do that.
If it would be helpful for the questions to be reworded then please let me know.
There is an option to “Send a followup”. I’d be happy to do that if anyone has suggestions.
I’ve had a look at s22 and am not sure it helps much. Subs (1) doesn’t apply (Sch 1 part 2). Subss (2) and (3) just define terms. “Application for treatment” in subs (3) only gets turned into the hospital order for unrestricted patients (sch 1 part 1) so I’m not sure a restricted patient is a “qualifying patient”. Anyway, subs (4) just says the remainder is about sub-six month sentences, subs (7) is disapplied (sch 1 part 2), and subs (8) is about CTOs. That just leaves us with subs (5), which is about sections that expire (not s37/41) and CTOs, and subs (6), which links to the stuff about extending sections after return from AWOL.
Thanks for the FOI request, and thanks to everyone who contributed. Very interesting question and responses (soon to be clarified no doubt by the new improved mental health act)
Thinking about s22 again, the details don’t matter, as its existence shows that it had been expected that detained patients would be sent to prison, which was Guy’s point to begin with.
I am late to the party but I do represent a patient who was sentenced to 4 years for an offence committed whilst subject to s37/41. He was conditionally discharged to prison and recalled at the end of his sentence. Another patient I represent was also conditionally discharged to prison whilst serving a short sentence and then recalled to hospital.
I then came across another patient who had served a sentence without being conditionally discharged and I assumed that this was unlawful as a s37/41 dictates that you are liable to be detained in hospital because you need treatment in hospital-not prison. I argued that he should either have been given a C/D or s17 leave during this period and if that wasn’t the case this was unlawful. I raised this with the MoJ and never got a reply and the patient sacked me so did not pursue it.
I am not sure any of that helps but I can’t see how the s37/41 can just be ignored whilst the patient serves a sentence and the fact that they sometimes do C/D to prison seems to indicate that they realise that.
Apart from the fact that there is no need for the SoS to conditionally discharge someone who is imprisoned for the reasons given above (otherwise why would s.22 be applicable to hospital orders with restrictions?), to do so would take the person out of the sphere of the protections found in Part IV of the Act, because they would no longer be liable to be detained.
Another issue arises upon release from prison (which could be at short notice in a remand situation), because whilst s.22 provides a safety net that the person would automatically be AWOL upon release and so could be retaken to hospital immediately, if the person had been conditionally discharged, it would necessitate a recall notice being issued by the SoS, which introduces a risk of delay and associated risks that flow from that.
Indeed-I was under the impression that s22 only applied to civil cases, but I note that it also applies to Hospital orders. This begs the question why the MoJ do sometimes C/D to prison, as they definitely do.