Section 47 of the Mental Health Act

This page looks at when you might be transferred from prison to hospital under section 47 of the Mental Health Act 1983. It explains how and when this section is used. It also explains what your rights are on this section and what could happen afterwards. This page is for sentenced prisoners who experience mental health issues. And their carers, relatives and friends.

Overview

  • The Mental Health Act is the law that says when you can be detained in hospital if you have a mental disorder.
  • Section 47 of the Mental Health Act allows mental health professionals to transfer you from prison to hospital for treatment.
  • To be transferred from prison to hospital, you must have a mental disorder and be so unwell that you need treatment in hospital.
  • The prison will ask the Ministry for Justice for permission to transfer you to hospital.
  • The Ministry for Justice might add a restriction direction to section 47. A restriction direction is known as a ‘section 49’. When this happens, the section is called a section 47/49. This means that the Ministry of Justice have to approve leave and your discharge from hospital.
  • You can be treated without your permission.
  • You could go back to prison if your mental health gets better.
  • If you are still in hospital when your sentence ends, the hospital can discharge you. If you need to stay in hospital, they will move you to a different section, called a ‘notional’ section 37.
  • If you don’t agree with being detained in hospital, you can appeal to a First-tier Tribunal (FTT) and to the hospital managers. But, for you to be discharged, the Ministry for Justice has to agree with their decision.
  • When you are discharged, you are entitled to free aftercare services under section 117 of the Mental Health Act.

Who will I meet?

What professionals might be involved if you’re transferred from prison to hospital?

There are different professionals that might be involved in your care while you are in hospital under the Mental Health Act. The professionals mentioned in this factsheet are below.

Approved clinician (AC): an AC is a mental health professional who is allowed to use the Mental Health Act. A doctor, psychologist, nurse, occupational therapist, or social worker can be an AC. They are trained to assess and treat your mental health and they are involved in your care planning.

Responsible clinician (RC): your RC is the approved clinician who is responsible for your care and treatment. They can decide if you are well enough to leave hospital and they can renew your section. Your RC is usually a psychiatrist.

Second opinion appointed doctor (SOAD): a SOAD is an independent doctor who can make decisions about your treatment under the Mental Health Act. Your RC might want to give you treatment against your will after your first 3 months in hospital. They will need the agreement of a SOAD.

The Ministry of Justice: The Ministry of Justice (MoJ) undertakes the Secretary of State for Justice’s responsibilities under the Mental Health Act. If you have a section 49 restriction on you, the MoJ decides things like whether you can move from prison to hospital, or from hospital to prison. Your RC needs to get permission from the MoJ before they let you leave hospital.

 

About section 47

When can I be transferred from prison to hospital because of mental illness?

Under section 47 of the Mental Health Act, prison staff can transfer you from prison to hospital if:

  • you are a sentenced prisoner, and
  • you have a mental disorder and your mental health needs treatment in hospital.

Being a ‘sentenced’ prisoner means that you are in prison because you have been found guilty of a crime. This is different to being in prison because you are waiting to have a court hearing.

A mental disorder can include mental illness and things like dementia, and developmental disorders including autism.

What is a section 49 restriction direction?

The Ministry of Justice can add a restriction direction added to your section 47 order. The restriction is known as a ‘section 49’. This makes it a section 47/49. This means that the Ministry of Justice have to approve leave, your discharge from hospital and your transfer back to prison.

How do prisons use section 47 of the Mental Health Act?

If the prison healthcare team are concerned about your mental health they can arrange for 2 doctors to assess you. They can do this if they think you’re that unwell you need to be in hospital. The doctors might not assess you at the same time.

In their assessment, the doctors will look at 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.

If the doctors feel these 3 things apply, they’ll ask the Ministry of Justice for permission to move you to hospital.

If the Ministry of Justice gives permission for you to be moved to hospital, they’ll write a document called a ‘transfer direction’.

Once the Secretary of State has written the transfer direction, a hospital bed should be found for you within 14 days.

If a bed isn’t found within 14 days, the transfer direction expires. If this happens, the prison healthcare team will have to start the process all over again.

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

You can find more information about ‘Healthcare in prison’ by clicking here.

Duration

How long will I be in hospital?

You can be discharged from hospital, and transferred back to prison, at any time. This could happen if your responsible clinician (RC) feels that your mental health has improved, and the prison is able to manage it.

The Ministry for Justice would need to give their permission for you to be transferred back to prison.

If your sentence has a fixed end date, and you have a section 49 restriction, it runs out when your sentence ends. But you may have to stay in hospital for treatment if your RC thinks you need to.

In this case, your section becomes a ‘notional’ section 37. ‘Notional’ means you will be treated as though you are in hospital under a section 37 hospital order.

If you don’t know what kind of sentence you are under, you can ask your RC.

Can I apply for parole?

If your sentence lets you apply for parole, you could do this while you are in hospital. But only if a First-tier Tribunal (FTT) has said you don’t need to be in hospital anymore.

There is more information about FTTs further down this page.

Getting parole means that you can leave prison before the end of your sentence. You will be supervised after you are released on parole. This is known as being on licence, or on probation. You will have to stick to certain conditions.

You can read more about parole here: www.gov.uk/getting-parole

What is a community treatment order?

You might leave hospital on a community treatment order (CTO).

This can only happy if the Ministry of Justice have applied a section 49 restriction direction to you.

You can be put on a CTO if:

  • your RC thinks that you need to stay under the Mental Health Act, but
  • you can be treated safely in the community.

A CTO means that you have to stick to certain conditions to stay out of hospital. For example, you have to agree to keep taking your medication.

You can find more information about:

  • Community treatment orders (CTOs) by clicking here.
  • Prison - Planning for release by clicking here.
  • Section 37 of the Mental Health Act by clicking here.

You can find more information about ‘Going into hospital - Money matters’ at: www.rethink.org/advice-and-information/living-with-mental-illness/money-benefits-and-mental-health/

What are my rights? 

What are my rights in hospital?

What is an independent mental health advocate (IMHA)?

You can get support from an independent mental health advocate (IMHA).

An IMHA can help you understand:

  • your rights under the Mental Health Act, including your right to appeal your detention,
  • the rights that other people have, such as your family,
  • any conditions or restrictions which affect you, or
  • any medical treatment you are receiving and the reasons for that treatment.

With your agreement an IMHA can do the following.

  • Meet with you in private.
  • Look at your health records.
  • Speak to the people treating you.
  • Represent you. They can speak or write for you.
  • Go with you to meetings about your treatment and care.

Hospital staff must tell you about the IMHA service, and how to contact it.

You can find more information about ‘Advocacy’ by clicking here.

Can I appeal my detention in hospital?

You have the right to appeal to a First-tier Tribunal (FTT). This is an independent panel that can discharge you from the Mental Health Act.

You can appeal:

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

You also 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.

If the FTT or the hospital managers think you should be discharged, they will tell the Ministry of Justice. It is up to the Ministry of Justice to decide whether they give permission for you to be discharged.

An independent mental health advocate (IMHA) can tell you more about your right to appeal, and how to do it.

There is more information about discharge further down this page.

What information should I be given?

As soon as possible after you are put on this section you should be given information on:

  • how the Mental Health Act applies to you,
  • your right to appeal to tribunal,
  • complaints, advocacy, and legal advice,
  • safeguarding, and
  • the role of the Care Quality Commission (CQC) in investigating complaints about professionals’ use of the Mental Health Act.

You must be given this information:

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

Can I complain if I am treated badly?

You can complain if you are unhappy with the way you are treated in hospital. An independent mental health advocate (IMHA) can help you to complain.

You can ask a member of hospital staff for a copy of the complaints policy.

If you’re not happy with the hospital’s response to your complaint, you can complain to the Care Quality Commission (CQC). Their contact details are in the Useful contacts section at the bottom of this page.

You can find more information about ‘Complaints against the NHS and social services’ by clicking here.

Can I have visitors and contact people?

You generally have the right to:

  • see anyone you want to see,
  • see your visitors in private, and
  • contact people by phone or in writing.

You should be encouraged to have visitors. And visits should be made as easy and comfortable as possible for you and your visitors. Sometimes your responsible clinician RC can stop a visitor seeing you. This is usually if your RC thinks your visitor will:

  • have a bad effect on your wellbeing or mental health, or
  • be disruptive and a risk to security.

If your RC stops a visitor from seeing you, they should explain their decision:

  • verbally, and
  • in writing.

If your RC stops you having visitors without there being a good reason for this, it may be a breach of your human rights.

You can ask an independent mental health advocate (IMHA) to:

  • explain your rights to you, and
  • help you to appeal the RC’s decision if you want to.

Where can I get further information?

The Equality and Human Rights Commission have published guides on your rights when detained under the Mental Health Act in England. You can download free copies of the guides here:
www.equalityhumanrights.com/en/publication-download/your-rights-when-detained-under-mental-health-act-england.

Please see ‘Download forensic introductory guide’ and ‘Download forensic full guide’ at the bottom of the page.

Ending a section 47 

What might happen after this section?

The following things could happen after your detention in hospital under section 47 of the Mental Health Act ends. You can:

  • Be discharged on parole, and you are allowed to serve the rest of your sentence in the community, on licence. There is more information about parole in the previous sections above.
  • Be released under the supervision of the National Probation Service (NPS) or a Community Rehabilitation Company (CRC).
  • Be transferred back to prison. The prison healthcare team will manage your care.
  • Stay in hospital and reach the end of your prison sentence. But your responsible clinician thinks you need to stay in hospital under the Mental Health Act. This is explained in the previous sections above.

You can find more information about:

  • Healthcare in prison by clicking here.
  • Prison - Planning for release by clicking here.
  • Section 37 of the Mental Health Act by clicking here.

Aftercare

What sort of aftercare will I get?

The NHS and social services must provide you with free aftercare for your mental health and social care needs. This is your legal right under Section 117 of the Mental Health Act.

‘Aftercare’ can mean anything that:

  • meets a need you have because of the mental health condition that caused you to be detained, and
  • reduces the risk that your condition will deteriorate.

This can include things like social care, supported housing and treatment for your mental health.

You can find more information about ‘Section 117 aftercare’ by clicking here.

Employment

Do I have to tell employers that I have been on this section?

Sometimes you have to tell people about criminal convictions. For example, when you apply for a job. But you usually don’t have to tell anyone once your conviction is ‘spent’.

Different types of conviction become spent at different times.

You can find more information about ‘Criminal convictions – When and how to tell others’ by clicking here.

Further reading

You can find more information about:

  • Complaints by clicking here.
  • Legal advice by clicking here.
  • Mental Health Act by clicking here.
  • Prison - What happens while I am in prison? by clicking here.

Useful contacts

Unlock
A charity led by ex-offenders. They give information on things like banking, insurance, employment, and how benefits and housing are affected by being in prison. Unlock are a very small team, so they ask you to go on the website and read through the information there, before you contact them.

Telephone: 01634 247350. (Monday to Friday, 10am-4pm.)
Text or WhatsApp: 07824 113848
Address: theHelpline, Unlock, Maidstone Community Support Centre, 39-48 Marsham Street, Maidstone, Kent, ME14 1HH
Email: Online form - www.infohub.typeform.com/to/zguWrK
Website: www.unlock.org.uk

Prison Reform Trust
This is an independent charity that works to improve support for prisoners. They run a helpline that advises prisoners on various issues.

Freephone helpline: 0808 802 0060. (Monday 3pm–5pm and Thursday 10:30am–12:30pm)
Address: Prison Reform Trust, FREEPOST ND 6125, London, EC1B 1PN
Email: advice@prisonreformtrust.org.uk
Website: www.prisonreformtrust.org.uk

Care Quality Commission (CQC)
They investigate complaints about how professionals use their powers and carry out their duties under the Mental Health Act.

Telephone: 03000 616 161 (option 1)
Email: enquirie@cqc.org.uk
Website: www.cqc.org.uk/contact-us/how-complain/complain-about-use-mental-health-act

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