I think the answer to that would depend upon the s47/49 and the sentence being served.
Assuming the patient is suffering a determinate sentence and is transferred then there is nothing I am aware of that would prevent s37/41 from being the outcome of criminal proceedings.
I have a vague recollection actually of representing a patient many years ago who was subject to s37/41 and s47/49 at the same time and i’m sure the legitimacy of his detention and the dual orders was challenged but I cant for the life of me remember the name.
Both detaining authorities run concurrently.
Thank you both. If the two sections run concurrently, how does that work in practice with regard to Tribunal eligibility and powers?
The patient will have dual Rights entitlement, therefore technically they can apply on 2 occasions to the Tribunal Service. In reality what often happens is the Tribunal Service will merge two applications together if occurring at similar times
For any conditional discharge to happen, does this mean both the MoJ/tribunal have to agree the conditional discharge and the parole board too?
The MoJ can conditionally discharge the s. 37/41 with or without a Tribunal review and decision. In the first instance though, the MoJ will not consider a CD until the first 6mths appeal timeframe has elapsed.
If the s.47/49 has a sentence expiry date, where the patient will convert to a notional 37, the RC can order a s. 23 discharge at that stage.
I’m sure that someone here will have muddled through this situation before (maybe expertly!) but I don’t think there is a definitive answer published anywhere. I agree with Bev and Rob that when a patient is subject to two separate sections he can apply to the tribunal separately in relation to each, according to the relevant eligibility periods. The tribunal will have to consider whatever criteria and powers apply at the time. The MOJ might be inclined to discharge the recent hospital order to reduce the patient’s opportunity to apply to the tribunal.
I think there are two possible situations:
At the beginning, both the s47/49 and the s37/41 will be in force. In theory the MOJ can agree to the conditional/absolute discharge of a s47/49 patient but in practice they never do (preferring to let the criminal justice system run its course). When the patient no longer meets the detention criteria, I think the tribunal could discharge him from the s37/41 under s73 and make the same s74 recommendations as for any s47/49 patient, leading to a potential return to prison and Parole Board if eligible.
If it is a determinate sentence, then at the s50 MHA 1983 release date the s47/49 will change to being a s47 on its own (notional s37), so the prison law complication disappears, but the dual application situation would remain for as long as the s47 and s37/41 remain.
Thank you all. The patient in mind is subject to an indeterminate sentence. I’ve never come across this situation before so thank you for your advice. He won’t be eligible to apply against the s37/41 during the first six months so he will likely want to proceed to challenge the s47/49 initially. If he was successful, in that the Tribunal deciding that the criteria were no longer met, and if he were referred to the parole board, who also decided he could be released, would he remain detained under the s37/41? Would he require a separate Tribunal to deal with the section 37/41 even though the previous Tribunal would have considered the criteria? And could he then be subject to a conditional discharge on eventual release?
The Upper Tribunal decided in CS v Elysium Healthcare  UKUT 186 (AAC) that the tribunal retained jurisdiction when a s47/49 patient applied to the tribunal but was on a new s37/49 by the time of the hearing, essentially because he’d remained a restricted patient throughout. In that case the s37/41 started because the Court of Appeal had replaced the underlying prison sentence with the hospital order, but the same principle probably applies here. So, even if your patient applies to the tribunal against his s47/49 during the first six months of the s37/41, I think the tribunal should be happy to consider both sections at the same time.
I think if the tribunal decide that the detention criteria are no longer met then logically it would have to discharge the s37/41 at the same time as making the s74 recommendations about the s47/49 – so I don’t think he’d need a separate tribunal.
When eventually he gets a Parole Board (whether still in hospital, or in prison) he would be released on licence.
If the tribunal had absolutely discharged the s37/41 then he’d just be on the licence. If the tribunal had conditionally discharged then I guess he’d be on licence (so subject to recall to prison for breach) and also conditional discharge (so subject to conditional discharge to hospital). There might be some reason making that impossible but I don’t know it.
The tribunal have an unpublished Bench Book, and the MOJ might also have an unpublished policy, so you could ask them what they would want to do in the various scenarios – and report back here!
Great thank you Jonathan, that’s very helpful!