Hospital or Prison?

Recent news coverage touched on news the family of a murder victim were not informed that the man sentenced to life for killing their son had been transferred almost immediately to a hospital.  In 2019, Brian Heelless killed Alex Davies in a brutal attack with a knife.  After being sentenced to life in prison, Mr Healless was moved to a medium secure hospital and this has caused understandable consternation which I thought may be worth explaining, not least because I can see why it raises immediate and obvious questions about the will of the Crown Court and the consternation appears to have been made worse by Mr Davies’s family not learning what had happened until later.

Let me explain the background —

Brian Healless denied murdering Mr Davies during his trial but admitting killing him and he argued the ‘diminished responsibility‘ partial-defence.  This would mean, in short, that he accepted a level of culpability for the killing, amounting to manslaughter, but amidst a context where his reasoning and functioning were affected by his mental health condition.  The prosecution did not accept there was diminished responsibility and this became a matter for the jury to determine.  They found Mr Healless guilty of murder in under an hour and the only sentence a criminal court may impose for this offence, is life imprisonment.  The judge has no discretion on this point and he did precisely that – Mr Healless was conveyed to prison despite having been detained in a secure mental health unit for much of the time between the offence and the trial.  It emerged later, that the convicted prisoner, as he now was, spent approximately two hours in prison before then being transferred back to the mental health unit he had been in prior to sentencing and Mr Davies’s family were not informed until weeks later.  Understandably, it causes questions:  a criminal court just sentenced this man to life in prison having specifically rejected the submission that his offending was affected by his mental health condition and yet somehow, he ends up back in the mental health unit he was in before?

Doesn’t this fly in the face of the judge’s sentencing?! … what is actually going on here?  Well, this is not a unique or isolated case – Nicola Edgington was transferred from prison to hospital, shortly after being sentenced for murder.  There are some explanations behind why this happens and why the law appears to say one thing and then do another – it probably comes back to the quality of explanations being afforded for how the system operates and why.


There are two issues here to distinguish –

  • Whether or not a defendant’s mental health condition affected their criminal responsibility for an offence.
  • Whether a defendant’s mental health condition indicates they require treatment in hospital.

Where someone is seriously mentally ill and they offend, it doesn’t mean they offended because they are mentally ill.  In some cases, a mental illness at the time of the offence may lead to someone being found insane (ie, not guilty of the offence because of their condition) or it may lead to a so-called partial defence of diminished responsibility or infanticide.  But equally, a person with an serious mental illness may still be found entirely criminally responsible for their actions and they are then dealt with by a criminal court as a defendant.

Where a defendant is so unwell that they meet the criteria for hospitalisation under the Mental Health Act, the judge has the option to impose one of several types of order under Part III of the MHA – things like a hospital order (s37), a restricted hospital order (s37/41) or a hybrid order (s45A).  Ahead of a final decision about prison or hospital under any of these frameworks, the judge can remand a defendant for assessment or treatment (s35 or s36) or they can impose an interim hospital order (s38).  However, for convictions for murder, the judge can do NONE of these as a final sentence.  The sentence for murder is “fixed by law” and the judge can only impose life imprisonment.

This matters for our understanding of what happened in this case, because it seems likely that the two things I asked you to bear in mind are both in play as the health and justice systems interface for Mr Heallless:  the criminal court has rejected his partial-defence of diminished responsibility, but those providing assessment and care for him believe he is ill enough to require hospital treatment, even if his illness was not a contributory factor to the offence for which he was convicted.


Where someone in prison is mentally unwell, they are subject to assessment by prison healthcare staff and if this concludes the person requires admission to hospital, the Mental Health Act 1983 has mechanisms for transfer to hospital.  A convicted prison may be transferred under s47 MHA if authority is given by the Secretary of State for Justice; any other prison (usually someone on remand, but could include immigration detainees) may be transferred under s48 MHA, following similar authority.  If the SoS believes it necessary, they can ‘restrict’ the hospital from discharging the prisoner, by imposing restriction under s49 MHA.   If and when a transferred prisoner is deemed to no longer require treatment, the person may be ‘remitted’ to prison under s50 MHA.  As you can see, Part III provides a full and complex framework on how to assess those within the criminal justice system, to provide reports to influence the courts during trial and sentencing, and to move people between prison and hospital, according to their health needs.

Mr Healless was convicted of murder in April 2020 and only sentenced later in the year.  The fact he spent just two hours in prison seems to suggest the authorities were planning for the only situation that could occur:  the judge imposing a imprisonment and four psychiatrists had provided evidence he required ongoing hospital treatment.  So it looks as if advance consideration was given to what the prison service would do upon his arrival, including authorisation from the Secretary of State for Justice to transfer Mr Healless under s47 MHA.  I’d be amazed if there was no restriction order on this transfer, under s49 MHA because the index offence is as serious as it gets.  Press response from the Government, which includes acceptance that Mr Davies’s family should have been informed earlier, outlines that the transfer is for the period of time necessary to provide treatment.  This lays the grounds for transfer back to prison (remittance under s50 MHA) once treatment is complete.

Understandable confusion and consternation here: no-one can really question why Mr Davies’s family feel frustrated if they weren’t told of the transfer having heard in court the man who killed their son would be imprisoned.  The situation of two hours in jail, however, comes about because the judge cannot hospitalise someone who has just been convicted of murder.  Had it been conviction for any other offence, including attempted murder, he could have imposed a restricted hospital (s37/41) or hybrid order (s45A) and the defendant would have gone straight to hospital with everything being clear.  The confusion seems to result from the fact the judge can only say “prison”, only for it to emerge prison is not where the person will end up, at least for the duration of the treatment he requires.

Keep the two distinctions in mind:  the fact someone’s offending is not explained by their illness and they’re still guilty, does not mean they are not seriously ill or need hospital care.  The reverse is also true:  the fact someone is seriously mentally ill does not mean they are not responsible in criminal law for their actions.

It seems everything else in this sorry state, may be the simple fact of not keeping victims updated and properly explaining how the system works.

Winner of the President’s Medal, the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award


All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown OBE, 2021

I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

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