Tangled web: Is S3 more powerful than a remand order made by the Court?

Law and practice Mental Health Act
1

Here is a sequence

  1. P in medium security is a prisoner who was transferred many months ago into hospital for treatment under Section 48/49 of MHA 1983.
  2. P was placed on S37/41 as the 48/49 fell away (circumstances unknown and not recorded).
  3. Then later on S35 invoked by the court, which caused the 37/41 to fall away.
  4. The S35 was renewed twice by the court.
  5. But before 12 week limit on S35, Section 3 was put in place (documents explaining this cannot be found).
  6. Then on about a month later the Court rescinded the S35 and ordered remand “to HMP” (no named prison).
  7. The court was clear in its remand order directing back to HMP.

There may be several distractions arising from the above. ‘We are where we are’ as they say. If there is any lack of logic among the above, you’ll have to accept it because that’s the situation as it is. No further relevant details are findable or if found later on cannot be disclosed here.

So -

  1. In the absence of any named prison, is the Section 3 valid in the face of the remand order? (I don’t think so but I’m looking for alternative logic).
  2. S3 is up for renwal quite soon. Can it be lawfully renewed in these circumstances (assuming legal criteria for S3 are met)? (I doubt but looking for alternative logic).
2

I’m sure others can correct me, but I didn’t think a S35 can make a S37/41 “fall away”. I believe a 37/41 or 41 carries on until it’s discharged by the Tribunal or the MoJ. I’ve met people who are under dual 37/41s, for instance. I suspect the presence of a 37/41 might impact the outcome.

3

Ss.48 and 49 will have ended because the court ended the remand by ordering ss.37 and 41.

The next bit of that sequence cannot be correct so it is not accepted, because an order under s.35 does not have the effect of causing ss.37 and 41 to fall away.

In terms of the relationship between ss.35 and 3; they can co-exist and often do, because there is no authority to treat under s.35. However, according to your sequence, ss.37 and 41 are still running, so there would be no need for s.3.

The s.3 will continue to run for 6 months from the date of remand to prison because of the effect of s.22.

[EDIT] Ss.37 and 41 continue to run without limit of time following the remand to prison; see Part II of Schedule 1 of the Act.

4

A court ordered remand to prison doesn’t bring a s3 to an end immediately. The two can co-exist for a period. See s22 MHA.

Therefore, in this odd sounding situation where the remand hasn’t actually been put into effect and the patient remains in hospital,I can’t see any reason why the normal process for renewing s3 wouldn’t apply.

5

Unfortunately it doesn’t matter now what anyone thinks about the process and whether parts of it are wrong. Why? Because time has trapped a future that has become the present. I apologise.

I quote myself because apparently it’s needed. Hence the issue now is whether "S3 is more powerful than a remand order made by the Court?" Why? Because right now - in the present - a S3 stands above the Court’s order. This must be something novel - cuz I’ve not come across it in 30-odd yrs of psychiatric practice.

So as not to inhibit personal choice, others may continue to pick at what’s wrong but it won’t change the present.

6

With all due deference, it is relevant to your question. As Guy said, if the s.37/41 was never lawfully removed, that remains the operative authority for detention, and any transfer would be subject to MoJ approval. That point necessarily informs any analysis of whether s.3 could supersede a remand order. The MoJ will have this information, so it’s easy enough to find out.

Regardless, your response adds little given that Guy and Richard have already provided an answer to the question posed.

7

Zac is correct and while you may not think it matters, it does; especially if this is a real scenario and/or someone else reads your sequence of events and erroneously believes it to be a correct statement of the law. What you think may have happened in the past, according to what you posted, does not reflect the legal position in the present; any s.3, s.35 or period of imprisonment will have had no effect on those orders made by the crown court.

The relationship between s.3 and being imprisoned (via remand or sentence), is as already referenced; it is dictated by s.22 which in terms of expiry and duration, works in a similar way to AWOL provisions under s.18.

By way of example, if s.3 is due to expire 3rd August 2025 and the person is imprisoned on 2nd August 2025, the s.3 does not expire on 3rd August, but will continue to run until midnight 1st February 2026 unless it gets discharged in the meantime or the person is released within 6 months of imprisonment. As such, the need for and therefore the ability to renew the s.3 when it was originally due to expire, no longer applies.

It is by no means an unusual scenario for most Mental Health Trusts.

8

Strange. I require assistance and correction. The following is constructed in Typora which is not ChatGPT or similar. [Typora is not AI]

Subsection (1):

“(1) If— (a) a qualifying patient is detained in custody… (b) he is so detained for a period exceeding… six months, the relevant application shall cease to have effect on expiry of that period.”

Does this apply? No. This subsection is predicated on the patient being detained in custody (i.e., in prison or a remand centre). The patient is in a hospital, not in prison. Therefore, this entire subsection is currently inert and does not apply to the patient’s present situation.

Subsection (2):

“(2) A patient is a qualifying patient for the purposes of this section if— (a) he is liable to be detained by virtue of an application for admission for treatment;”

Does this apply? Yes, but only as a definition. This subsection confirms that a patient detained under a Section 3 is a “qualifying patient.” It is a definitional subsection that establishes the patient’s status, but it does not, in itself, trigger any action.

Subsection (3):

“(3) “The relevant application”, in relation to a qualifying patient, means— (a) in the case of a patient who is subject to guardianship, the guardianship application in respect of him; (b) in any other case, the application for admission for treatment in respect of him.”

Does this apply? Yes, as a definition. This subsection clarifies that “the relevant application” is the patient’s Section 3 order.

Subsection (4):

“(4) The remaining subsections of this section shall apply if a qualifying patient is detained in custody as mentioned in subsection (1)(a) above but for a period not exceeding, or for successive periods not exceeding in the aggregate, six months.”

Does this apply? No. This subsection is the gateway to the rest of the section. It explicitly states that subsections (5) through (8) only apply if the patient is “detained in custody.” Since the patient is in a hospital, this condition is not met.

Subsections (5), (6), (7), and (8): These subsections detail what happens regarding liability, absent leave, etc.

Do these apply? No. As per subsection (4), none of these apply because the patient is not “detained in custody.”

Section 22 of the MHA does not currently apply to the captioned patient’s situation. Section 22 outlines the effect a prison sentence or remand has on a person’s civil detention, but its operational clauses only become active after the patient is in prison. Since the patient remains in hospital, the conditions of Section 22 have not been met.

Conclusion:
The patient is currently being detained unlawfully.

The logical and legally correct outcome is that the patient must be transferred to prison immediately in compliance with the court’s remand order. The hospital has no legal basis to continue detaining the patient.

9

The 37/41 is gone - removed by the court. The patient ended up on S3 while on S35. I nor anyone else is going to JR the court. The court’s decision stands. 37/41 is gone.

Patient is on S3 in the face of a remand order to return to HMP.

10

Incorrect. But you may not discover why. And I can’t tell you why.

11

You stated at the end of your sequence that the court had remanded the person back to prison. Is it the case that the person has not yet made their way to prison?

12

That statement tells me a lot though.

13

I recount the original sequence to keep it in front of us all. Some may have forgotten.

The straight answer to your question is, the person/patient (P) has not made their way to prison. This is because - as stated - P howsoever, ended up on a Part 2 section detained in a hospital in tandem with S35 (at least for a period - for reasons unknown, documentation nowhere to be found).

This leads me back to the orginal question in title of this thread - and I cannot see how S22 applies in the above circumstances.

14

You inform yourself, evidentially. However, I am proved right by evidence because you clearly have not discovered though the relevant part is in the forum prior to your respone. Obviously you focus on ‘me’ instead of the issues.

15

As a matter of principle, s3 is certainly not more powerful than a court ordered remand.

A remand warrant is a direction (ie an order) to take the person into detention and keep them there. s3 is merely a power to detain.

If the warrant remains valid, s3 would provide no protection against its implementation.

Why this hasn’t happened is the puzzle. But it’s unlikely to be due to the warrant not naming a specific prison - warrants don’t have to do that.

The relevance of s22 is that it demonstrates that a remand warrant and s3 do not affect each other’s validity.

16

Ahhh yes the eternal ‘Why?’, that leads us down alleyways and/or Alice’s Rabbit hole, in search of answers, the truth and lessons to be learned.

Fortunately for me - I’ve learned my lessons, not to waste time with the ‘Why?’. It’s a fishing expedition in a sea of chaos. I value my time and sanity too much. But wait - I already know the ‘Why’ so no need to go fishing anyway.

Fortunately for everybody else, I am not at liberty to explain the ‘Why’ nor will I be afforded the means to reveal yet another ‘PhD thesis’ that will dredge it up, from 30 years of health service lessons not learned.

17

I have read quite a few of yiur previous posts in this forum. It seems clear that you probably not a legal expert, whereas Guy Davis is!
So please heed his advice about s 37/41. It remains in place unless a MHRT grants an absolute discharge (very rare) or the Secretary of State in the Ministry of Justice orders an absolute discharge. So the court involved in your case may think they terminated the s.37/41 BUT they did not.
Whatever happens with the order to remand to prison and the section 3, after that the s.37/41 must be adhered to.
I have been an AMHP for 32 years and I was a Social Supervisor for 5 patients with s.37/41. So I know that Guy is absolutely spot on!

18

Your response demonstrates the following quite conspicuously:

  1. Ad Hominem Circumstantial (Poisoning the Well)
  2. Appeal to Authority (Argumentum ad Verecundiam)
  3. Appeal to Personal Experience
  4. Begging the Question (Petitio Principii)
  5. Dunning-Kruger Effect (Metacognitive Bias)
  6. Identity Fallacy (In-group Endorsement)

I am deeply grateful for your contribution.

I have not argued with you, nor abused you.

19

You are being unnecessary ignorant but I let your post through because I know everyone involved has thick enough skin to deal with it.

20

I think this is the answer to your original question.

This is intriguing but doesn’t help the rest of us solve the puzzle.

I agree that this chronology just doesn’t make sense, and that in law a s35 wouldn’t end s37/41. I think the whole s37/41 thing is a red herring, though, partly because I doubt it existed. Do you think maybe the “s37/41” was really an interim hospital order under s38? That would be possible for a s48/49 remand patient and would explain how that ended. Maybe even the “s35” in the chronology above was the s38 being extended. What parts of the sequence can be confirmed by the court paperwork?