Restricted Cases and the Parole Board

We have a client who is an IPP detained in hospital under s47/49 MHA.

We represented the client before the Mental Health Tribunal in 2022 in which the panel made a recommendation under s74(1)(b) that he should continue to be detained in hospital pending a referral to the Parole Board.

We then represented the client before the Parole Board this year however there had been adverse developments recently before the parole hearing resulting in the parole board concluding the case on the papers and not directing release. The adverse developments were concerns regarding his mental health in that he had de-stabilised in a less secure ward and obviously the MHRT would not have been aware of this at the time of their decision.

We have received the written decision of the Parole Board today in which they suggest that the decision of the clinical team not to refer his case back to the Mental Health Tribunal was flawed.

The Parole Board guidance (October 2020) states:

Where the Parole Board considers the case, but does not direct release, the restricted patient remains detained under the MHA and continues to be subject to that regime (i.e. a new decision from the Tribunal is required before the case is referred to the Parole Board again, or the restricted patient is remitted to prison).

We cannot find anything in statute under the MHA regarding whether our client’s case would need to be reconsidered by the MHRT. We cannot find anything on Mental Health Law online covering this either.

Any advice would be greatly appreciated.

Apologies for the delay you’ve had in getting a reply!

The whole scenario around restricted transferred prisoners and the Parole Board is such an anomaly that there are a lot of grey areas where common sense rather than certainty has to prevail.

The team can’t make a tribunal reference, but likely the Parole Board used that as shorthand for the team requesting that the MOJ make a discretionary reference. I don’t think the team can be criticised for not doing this – though, given the glacial speed of the Parole Board, the tribunal could have convened a hearing more quickly and a decision to the opposite effect would probably have meant the end of the Parole Board proceedings.

My instinct is that the Parole Board guidance is wrong: the patient should now have the same right of access to the Parole Board as if he were in prison, and it should not take a further tribunal hearing for there to be a further Parole Board hearing. I can’t quite work out whether s74(5A) is consistent with the guidance or with my instinct. Years ago I had a case where we won the tribunal, lost the first Parole Board, then won a second Parole Board… between those two hearings the tribunal agreed to adjourn mandatory reference proceedings sine die (we were worried a new panel might come to a different decision).

What happened with your patient?