This is a post which is not directly about policing and mental health, but about prisons and mental health. I have decided to post about it because it shows the tangle into which you can get around understanding this law. OK, it’s also because I got asked the question and hated to admit I didn’t know! So then I got interested even though this will never affect the police directly. Sometimes the consequences will affect us indirectly, but more of that at the end!
<<< This post does not apply to Scotland, becuase the law is different. It applies to Northern Ireland whose Mental Health Order has exactly similar provisions, albeit the articles of the Order are numbered differently to the sections of the English / Welsh Act. >>>
I’m posting this partly to see whether I’ve now understood it correctly! – so you should absolutely feel free to comment if I haven’t and I’ll amend the post. Based on Twitter, I’m half-thinking that by eventually bashing this into shape there will be various professionals who might benefit as the tweets went on into the night trying to sort this out!
What is a ‘notional s37’ MHA patient?
- Firstly, some law:
- s37 MHA – a “hospital order”
This can be imposed as an alternative to criminal sentencing following a finding of guilt by a criminal court; or if a person is ‘unfit to plead, unfit to stand trial’, following a finding that they did the act alleged.
- s41 MHA – a “restriction order”
This can be imposed upon a s37 order where a patient poses “a serious risk of harm to the public”; and it prevents DRs granting leave, hospital discharge or hospital transfer without Ministry of Justice permission.
- s47 MHA – a “transfer direction”
This authorises the moving of a convicted prisoner to a hospital, if they develop a need for mental health treatment whilst serving their sentence. By virtue of s47(3) MHA, such a patient is then treated in hospital ‘as if’ they had been sentenced to a s37 hospital order by a court.
- s48 MHA – a “transfer direction”
This authorises the moving of remand and other prisoners to a hospital, as per s47 MHA.
- s49 MHA – a “restricted transfer direction”
This imposes restrictions upon leave, discharge or transfer without Ministry of Justice permission, as per s41 MHA.
- s50 MHA – is a “remission direction”.
A remission direction can remove a s47 or s48 MHA patient back to prison if their detention in hospital for mental health treatment is no longer required.
If someone who has a mental disorder is found guilty of a criminal offence, it is available to the court to sentence the person to detention in hospital under s37 MHA. It the person poses a particular risk of serious harm, this s37 Hospital Order can be restricted under s41 to manage those risks – this is known as a “37/41 order”. The restrictions imposed by s41 are not upon the patient, but upon the Doctors managing the patient. They are not free to authorise hospital leave under s17 MHA, hospital transfer under 19 MHA or discharge from the MHA entirely, as they are free to do so for s37 patients. They would need Ministry of Justice approval for these things.
If a person was sentenced to prison for the offence and thought or found to be mentally ill whilst serving a prison sentence, then they may be transferred by the Ministry of Justice from prison to hospital under s47 or s48 MHA, known in each case as “transfer directions”. Once they arrive, they are to be regarded “as if” they had a hospital order imposed upon them under s37. The transfer directions can also be restricted by s49. So a s47/49 transfer direction AND or s48/49 transfer direction, each equate to a s37/41 order.
All clear so far?!!
WHERE DOES “NOTIONAL s37” COME FROM
The phrase “notional s37” does not appear in the Mental Health Act. Various contributors to the debate last night (that allowed me to start getting my head around this!) implied that someone ‘becomes’ a s37 patient automatically when a s47 or s48 runs out. s47(3) shows that this is not true. Once a person arrives in hospital, by virtue of s47(3), they will be treated as if they had been given a hospital order by a court from that time.
So ‘notional s37’ is in effect, parlance or informal terminology. Someone to whom it relates is in fact detained in hospital following a transfer direction under s47.
If the patient’s need for inpatient hospital care comes to an end before the original prison sentence has ended, they can be remitted back to prison to complete their sentence under s50 MHA. If the prison sentence ends whilst they are detained under s47, they continue to be treated ‘as if’ they had been sentenced by a court to a hospital order under s37 and remain detained until the responsible clinician determines it is appropriate to release, or until a Mental Health Review Tribunal orders it.
Once the sentence is fully finished, the ‘prisoner’ is fully a patient and becomes entitles to benefits, etc., etc., but they are a patient detained under the original transfer direction – either s47 or s48 – which demands that they be managed “as if” they had been originally sentenced to a hospital order under s37.
HOW THIS CAN AFFECT THE POLICE
There are two circumstances in which this could affect the police:
- Being requested to use s136 MHA outside prison – because a transfer direction was requested by detention in prison ends before the person can be moved to hospital.
- A notional s37 patient becoming AWOL under the Act – from where would an officer get a power to redetain; and what power if any to force entry to a premises in order to do so?
Firstly – sometimes, there are problems around this s47 process. The need to transfer a convicted or remand prisoner to hospital arises with insufficient time to identify a suitable hospital bed and / or for the Ministry of Justice to issue the transfer direction. Sometimes a sentence completely expires, but mental health professionals cannot ‘section’ someone who is in prison. So it gives rise to a somewhat contrived solution:
“Hello, police? Can you come to HMP XYZ and when Mr SMITH gets released from prison, arrest him under s136 MHA and take him to a place of safety so we can section him?” Yes, this really does happen. I’m aware of it twice in my force in the last year.
I’ll be honest: I think this is highly ethically questionable, however legal it may be. Imagine having gone through the experience of prison with an untreated mental health problem requiring inpatient hospital care that has not been possible to arrange. Then either, you think you’re getting your liberty back and suddenly find yourself arrested at the gate, denied anticipated freedom; OR the idea of total unsupported freedom and responsibilty amidst a serious mental health problem causes massive anxiety and you are made to think you’ll be released without support?
Secondly – because the person in hospital is being treated “as if” they were a s37 patient, the same rules apply. s37 is the only provision within Part III of the Mental Health Act that leads to someone being regarded as straight-forwardly AWOL under the Act. Police officers, AMHPs and anyone authorised by the hospital managers can redetain a person unders s18 MHA if they are AWOL in order to return them to hospital. There is no power of entry: a warrant under s135(2) MHA must be obtained if entry needs to be forced in order to do so.
The Bradley Review suggested that all s47 transfers should be completed within 14days whereas currently it is two or three times this long; if not more.
Incidentally – my first ever arrest in the police was a gate arrest from a major prison – but he was a fairly rampant burglar who went straight back to jail so no ethical problem applied!
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