48.—(1) If in the case of a person to whom this section applies the Secretary of State is satisfied by the same reports as are required for the purposes of section 47 above that—
[(a)that person is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and
(b) he is in urgent need of such treatment;] [and
(c) appropriate medical treatment is available for him;]
The point is that each ‘person’ can decide for themselves what ‘urgent’ means. Similarly for S62(1) ‘urgent’ can mean ‘immediately necessary’ and other related words. But does ‘urgent’ have a specific meaning for S48?
I have doubts. A prisoner is unlikely to appeal against transfer to hospital, arguing that transfer was not urgent. After all, hospital is bound to be a better place than the average of conditions in prison. Trusts want their beds filled so they’re not gonna argue about the meaning of ‘urgent’. And the MOJ basically is in no position to argue either.
So it seems that ‘urgent’ is what doctors say it is, on the usual forms.
Realistically because of the shortage of MH beds and backlog of prisoners requiring inpatient psychiatric treatment, almost every case would be “urgent” anyway.
I don’t think the precise definition matters. If two doctors have agreed that person requires urgent treatment, that’s a clinical assessment which is infamously difficult to challenge in the courts anyway (see any case in the early 00s JRing decisions under Part 4).
I’ve wondered about this too, but never paused long enough to ask anyone. It would be good to know the history of it – was it from the 1959 Act, were there debates about it, is there any guidance, etc?
Maybe the idea is that a prisoner’s risk is addressed to an extent by already being detained and so hospital detention can be delayed for longer.
Considering criteria generally, if we changed the detention criteria to “he needs to be detained” or “so dangerous he needs to be detained” or “he needs to be detained urgently” I don’t imagine it would make much difference. To modify the old cliché, culture eats criteria for breakfast.
Here’s a book extract relevant to statutory construction:
Jonathan - the “urgent” criterion is not from the MHA 1959. It was introduced by the MHA (Amendment) 1982.
My guess (but I can’t prove it) is that it was intended to codify the then Hone Office practice of limiting the number of remand prisoners transferred.
The 1975 Royal Commission Report on Mentally Abnormal Offenders (the Butler Report) notes at para 3.38:
“We have been informed by the Hone Office that this practice [ie transfer of remand prisoners] is adopted only where a prisoner’s condition is such that immediate removal to hospital is necessary.”
Thanks. Maybe I’ll read that one day! An underlying reason might be that the transfer is an interference with the ongoing criminal proceedings and ideally the court would make the decisions. So “urgent” in this context would mean “can’t wait until it gets back to court”. Though s48 doesn’t just apply to remand prisoners.
Looks like it’s a mix of what you and Richard say, Jonathan. Found this in Larry Gostin’s Mental Health Services: Law and Practice [2000] which is uploaded on MHLO.
Chapter 14.02.1:
The concept of ''urgent need" was introduced in the Mental Health (Amendment) Act 1982 (s. 23(2)) to indicate that section 48 is intended to be an emergency procedure to be invoked only where there is an urgent need for hospital treatment which the prison cannot provide.
While the Mental Health (Amendment) Act 1982 introduced the wording “urgent need” the concept was applied in practice under the 1959 Act. Otherwise any person likely to be made subject to a hospital order could have been transferred to hospital before trial, thus anticipating the remand to hospital provisions (see paras. 4.14 and 4.15 below). In fact, the papers on the 1959 Act reveal that the words “urgent need” were intended to be in the 1959 Act but were omitted in error!
I can’t find a primary source for “urgent need” being omitted in error in the 1959 Act, though.
