Frequently asked Q's

• The key points
  • You might be on remand in prison, be in an immigration detention centre or youth detention accommodation. If you have a mental disorder, you can be transferred to hospital. This can be done under section 48 of the Mental Health Act 1983.
  • To be transferred to hospital, you must be so unwell that you need treatment in hospital.
  • Under section 49 of the Mental Health Act, the Ministry of Justice can add what’s known as a ‘restriction direction.’ They can do this if they feel that you are a risk to the public. This places extra restrictions on you and the responsible clinician in charge of your care.
  • The prison must ask the Ministry of Justice for permission to transfer you to hospital.
  • You can be moved back to where you were being detained if your mental health gets better.
  • You can appeal to the hospital managers and a tribunal if you do not think that you should be detained in hospital.
  • The hospital can treat you with medication without your permission. 
    When you are discharged, you can get free aftercare services under section 117 of the Mental Health Act. 
• When can I be transferred to hospital?

  You can be transferred to hospital if you are experiencing a mental disorder and you are: 

  • on remand in prison, 
  • in an immigration detention centre, or
  • in youth detention accommodation under the Legal Aid, Sentencing and Punishment of Offenders Act 2012. 

  This can be done under section 48 of the Mental Health Act 1983.

  In this information we concentrate on if you have been transferred to hospital from:

  • prison, or
  • an immigration detention centre.

  That is because we only give about people who are 18 plus and live with mental illness in England.

  A mental disorder can include mental illness, personality disorders, and things like dementia. 

  You can only be transferred to hospital if: 

  • you are on remand, if you are in prison,
  • you are so unwell that you need treatment in hospital, and 2 doctors agree to this,
  • there is appropriate medical treatment available to treat your mental disorder,  and
  • the Ministry of Justice agrees to your transfer. 

  Ministry of Justice acts on behalf of the Secretary of State for Justice.

  What is being on remand in prison?

  If you are on remand in prison, it means you are kept there while waiting for your trial or sentence. 

  You might be on remand because:  

  • you are awaiting trial,
  • you are waiting for the court to sentence you,
  • you have not paid fines or debts, or
  • you have not done what the court ordered you to do.

  If you have not paid fines or debts or done what the court ordered, you are known as a ‘civil prisoner.'

  Who can be transferred to hospital from immigration detention centres? 

  If you have arrived in the UK, you might be detained in an immigration detention centre if you are waiting: 

  • for permission to enter the UK, or
  • to be deported or removed from the UK.

  Under section 48, you can be transferred to hospital from an immigration detention centre if you are being held under: 

  • The Immigration Act 1971,
  • Section 62 of the Nationality, Immigration, and Asylum Act 2002,
  • Section 36 of the UK Borders Act 2007, or
  • Regulation 32 of the Immigration (European Economic Area) Regulations 2016. 

  What is a restriction direction?

  Under section 49 of the Mental Health Act, the Secretary of State for Justice can add what’s known as a ‘restriction direction.’  They can do this if they feel that you are a risk to the public. 

  A restriction direction puts extra restrictions on you and your responsible clinician (RC). For example, your RC needs to get permission from the Ministry of Justice before you can leave hospital.   

  Your RC is the person who is responsible for your care and treatment. They are usually a psychiatrist. 

  When will doctors assess me?

  Healthcare professionals can ask doctors to assess you. They can do this if they think you are experiencing serious mental illness and think you might need to be in hospital.

  They will arrange for 2 doctors to assess you.  The doctors do not have to assess you at the same time. 

  In their assessment, the doctors will consider 3 things: 

  • whether you have a mental disorder,
  • whether you are so unwell that you need to be detained in hospital for treatment, and
  • whether treatment is available for you in hospital.

  If the doctors decide that these 3 things apply to you, they will ask the Ministry of Justice’s permission to move you to hospital. If permission is given, the Ministry will complete a document called a ‘transfer direction’.  

  How long will it take for me to be transferred to hospital?

  A hospital bed should be found for you within 14 days.  

  If a bed is not found within 14 days, the transfer direction expires. The healthcare team will have to start the process again, if necessary. 

  You might need to wait in prison for a bed to be found. Some prisons have healthcare units where you could stay. 

  On our webpage you can find more information about Mental healthcare in prison.

• How long can I be detained in hospital?

  You will be detained in hospital under section 48 or section 48/49 until:

  • You are judged well enough to return to prison or your immigration detention centre.
  • The court release you on bail.
  • The court finds you not guilty or the legal proceedings against you stop.  
  • Your remand expires.
  • The court finds you guilty.  

  Will I be transferred back to prison or my immigration detention centre?

  You will be kept in hospital until: 

  • the Ministry of Justice gives their permission to send you back to where you were detained,  or
  • your case has been decided by the court. 

  The Ministry of Justice can transfer you back to prison or your immigration detention centre if:  

  • your responsible clinician or the tribunal say you no longer need treatment in hospital, or
  • there is no effective treatment available for you. 

  Your RC is the person who is responsible for your care and treatment. They are usually a psychiatrist. 

  Will I have to go back to court? 

  You might need to go to court if:

  • you have not yet stood trial, or
  • you plead guilty or are found guilty and are awaiting your sentence.

  Will I have to stay in hospital if the court finds me not guilty?

  Your responsible clinician will either:  

  • discharge you from hospital, or
  • continue to detain you in hospital under a different section of the Mental Health Act, such as section 3. 

  You can be detained in hospital under Section 3 for treatment.  You must have a mental disorder and be a serious risk to yourself or other people. 

  Your RC is the person who is responsible for your care and treatment. They are usually a psychiatrist. 

  What will happen if the court finds me guilty?

  The court might:  

  • give you a prison sentence, or
  • detain you in hospital under a different section of the Mental Health Act, such as section 37. 

  What will happen if my remand expires?  

  This will only apply to you if you are placed on remand by the magistrate’s court. When your remand expires your detention in hospital under section 48 of the Mental Health Act will end.  But you could be detained in hospital under a different section of the Mental Health Act, such as section 3. 

  You can be detained in hospital under Section 3 for treatment.  You must have a mental disorder and be a serious risk to yourself or other people. 

  Your case might be transferred from the magistrate’s court to the Crown Court. If it is, your detention in hospital under section 48 of the Mental Health Act will continue. 

  I am a civil prisoner or I’m being held under immigration laws. How long will I be detained in hospital under section 48/49? 

  If you have not paid fines or debts or done what the court ordered, you are known as a ‘civil prisoner.'

  You can be held in an immigration detention centre if you do not have immigration status to remain in the UK.

  You will be kept in hospital under section 48 until:  

  • you are transferred back to prison or an immigration detention centre, or
  • the period for your detention expires. For example, you might be taken to a detention centre then transferred to hospital. If your detention at the detention centre ends, this section would expire at the same time.  

  The Ministry of Justice can transfer you back to prison or an immigration detention centre if:  

  • your responsible clinician or the First-tier Tribunal say you no longer need treatment in hospital, or
  • there is no effective treatment available for you. 

  Your RC is the person who is responsible for your care and treatment. They are usually a psychiatrist. 

  If my detention expires, will I be kept in hospital?

  Your healthcare professionals may feel that you still need treatment in hospital. They could arrange for you to have a Mental Health Act assessment. 

  They may detain you in hospital under a different section of the Mental Health Act, such as section 3. You can be detained in hospital under Section 3 for treatment.  You must have a mental disorder and be a serious risk to yourself or other people. 

  On our webpages can find more information about:

  • Mental Health Act
  • Criminal courts and mental illness
  • Section 37 of the Mental Health Act - Hospital orders
  • Section 37/41 of the Mental Health Act - Hospital orders with a restriction 
• Can I get an advocate?

  You have the right under the Mental Health Act to see an independent mental health advocate (IMHA).  They are free to use and are independent of people like the NHS, the courts and the Ministry of Justice.

  An IMHA can help you understand different things to do with your detention such as: 

  • your rights under the Mental Health Act,
  • the parts of the Act that apply to you,
  • any conditions or restrictions which affect you, and
  • the reasons for any medical treatment you are having. 

  The IMHA can also: 

  • meet with you in private,
  • look at your medical and social services records,
  • speak to the people treating you,
  • go with you to meetings with the people treating you, and
  • represent you by speaking or writing on your behalf.

  An IMHA can help you if you are unhappy about any part of your care and treatment while in hospital.

  Hospital staff can tell you about the IMHA service at your hospital. 

  On our webpage, you can find more information about Advocacy for mental health - Making your voice heard  

   

• Can I appeal my detention?

  If you think you should not be in hospital you have the right to appeal to:

  • the hospital managers, and
  • the tribunal.

  The hospital managers or the tribunal might agree that you can be discharged from hospital. But the Ministry of Justice must agree too if they have put a restriction direction on you.

  How can I appeal to the hospital managers?

  You have the right to appeal to the hospital managers. The hospital managers are the people responsible for making sure the Mental Health Act is applied properly in hospital.

  They are also known as the Mental Health Act managers.

  There is nothing in law limiting the number of times you can appeal to the hospital managers. But the hospital may have a policy in place to say when you can appeal to them.

  To help the managers decide if they should discharge you, they get written reports before seeing you. Medical, nursing, and social care staff write reports. You have a right to see these reports. But sometimes you may not see all the information if it might harm your mental health to see it.

  If they keep information from you, they should explain their reasons.

  A Mental Health Act managers' review is normally held on the ward or in a separate room.

  The following people will usually be there.

  • You
  • The managers
  • Your responsible clinician 
  • A nurse from the ward
  • A social worker

  The managers will have read through the reports. After this they will give you a chance to speak.

  At the end of the hearing the hospital managers will decide if you can be discharged. All of them must agree for you to be discharged.

  If you want to appeal to the hospital managers tell a member of staff or an independent mental health advocate (IMHA).

  How can I appeal to the tribunal?

  The tribunal is an independent panel that decides if you can be discharged from hospital.

  The tribunal hearings usually take place at the hospital you are detained in.

  If you are detained under section 48 you can appeal:

  • once during your first 3 months in hospital,
  • once again during the next 6 months, and
  • then once every year after that.

  If you are detained under section 48/49 you can appeal:

  • in the period after your first 6 months but before the end of your first 12 months, 
  • then once every 12 months after that.

  A tribunal must each have a: 

  • legal member, who is usually a solicitor or a barrister,
  • doctor, who is usually a psychiatrist, and
  • a person who is not medically or legally trained, but has mental health experience.

  You, the responsible clinician, and social worker will be at the tribunal. The legal member will oversee the tribunal.

  If you want to appeal to the tribunal, tell a member of staff or an independent mental health advocate (IMHA).

  You can also apply using a T110 form. The form may be available on your ward, ask staff about this. If you would find it difficult to fill in the form yourself, ask the staff or an IMHA for help.

• What are my other rights in hospital including appeal rights?

  What are my rights to information?

  After you are detained in hospital, you should be given information as soon as possible on: 

  • how the Mental Health Act applies to you,
  • complaints, advocacy and legal advice,
  • safeguarding, and
  • the role of the Care Quality Commission (CQC).

  You must be given information: 

  • verbally and in writing, and
  • in a format and language that you can understand. 

  Can I make a complaint about my care or treatment? 

  You have a right to complain if you are unhappy about:

  • your care,
  • your treatment, or
  • any other aspect of your detention.

  You can ask your named nurse or responsible clinician for a copy of the complaints policy. 

  Your RC is the person who is responsible for your care and treatment. They are usually a psychiatrist. 

  You can also speak to an independent mental health advocate (IMHA). They can help you to raise any issues you have or help you to make a complaint.

  On our webpage you can find more information about Complaints about the NHS or social services.

  Am I allowed to contact people and have visitors?

  You have the right to: 

  • see anyone you want to see, such as family or friends,
  • see your visitors in private, including your own bedroom if you want, and
    contact people by phone or in writing.

  You should be encouraged to have visitors. Visits should be made as easy and as comfortable as possible for you and your visitors. 

  But in some circumstances your responsible clinician (RC) can stop a visitor seeing you. The reasons for this will usually be: 

  • if your RC thinks the visitor will have a bad effect on your wellbeing or mental health, or
  • if your RC thinks your visitor is disruptive and a risk to security.

  If your RC stops a visitor from seeing you an independent mental health advocate (IMHA) can explain your rights to you.

  Your RC is the person who is responsible for your care and treatment. They are usually a psychiatrist. 

  What are my rights about restraint?

  Restraint means that staff can use force against you. Restraint can be used by hospital staff when they are trying to stop you, or someone else, from getting hurt.  

  You have a right to only be restrained by professionals when: 

  • it is used for no longer than necessary to prevent harm to you or to others,
  • it is no more than is needed to respond to that harm,
  • it is the least restrictive option available,
  • It is used in a way that minimises any risk to your health and safety, and
  • it causes the minimum interference to your independence, privacy, and dignity. 

  You have a right to not be restrained: 

  • to punish you, or
  • for the sole intention of inflicting pain, suffering or humiliation.

  Do I have the right to appeal my detention?

   

• Can doctors give me treatment if I do not agree?

  Doctors should ask you if you consent to treatment. But they can treat you for 3 months, even if you do not want it.  

  After 3 months they can only continue to treat you:  

  • with your consent, or
  • if another doctor agrees that you need treatment. This doctor is called a second opinion appointed doctor (SOAD).

  A SOAD is an independent doctor who can make decisions about your treatment under the Mental Health Act. 

  Can I be given electroconvulsive therapy (ECT)?

  Doctors cannot give you electroconvulsive therapy (ECT) without your consent unless:

  • you lack mental capacity to make your own decision about treatment. And a SOAD agrees that you need it,
  • it will save your life, or
  • it will stop you getting very unwell from something that cannot be reversed. 

  It is very rare that you will be given ECT without your permission.

  On our webpages you can find more information about:

  • Electroconvulsive therapy (ECT), and
  • Mental capacity and mental illness - The Mental Capacity Act 2005
• Do I have a right to free aftercare?

  When you leave hospital the NHS and social services must provide you with free aftercare services. They must do this under section 117 of the Mental Health Act.  

  Aftercare services provided free of cost must:  

  • meet a need you have because of your mental health condition, and
  • reduce the risk that your condition will deteriorate.

  This may include things such as therapies, prescription costs, services or social care.

  On our webpage you can find more information about Section 117 aftercare - Under the Mental Health Act 1983