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PSI 29/2010 & PI 06/2010Chapter 15 Page 1

Chapter 15. MENTALLY DISORDERED INDETERMINATE SENTENCED PRISONERS

15.1All indeterminate sentenced prisoners (ISP) transferred to hospital under the provisions of the Mental Heath Act (MHA) 1983, as amended, remain subject to the terms of their indeterminate sentence. Whilst detained in hospital, the Secretary of State’s functions under the MHA, including consideration of their discharge from hospital, will come under the responsibility of the Mental Health Casework Section (MHCS) in the Public Protection and Mental Health Group of the National Offender Management Service. Time spent in hospital counts towards the sentence for tariff purposes. It is important the Offender Manager (IPP)/Home Probation Officer (Lifers) maintains regular contact with an ISP detained in hospital.

15.2Transfer to hospital on sentencing – hospital direction

Section 45A of the MHA enables the sentencing court to pass a discretionary life sentence or an IPP sentence and simultaneously direct the prisoner to hospital for treatment. This is known as a hospital direction. The hospital direction authorises the prisoner’s admission to hospital within 28 days. The prisoner is subject to an indeterminate sentence that is calculated in accordance with normal sentencing principles but is directed by the Court to hospital in the first instance. (If his/her detention in hospital is found to be unnecessary or inappropriate, s/he may be transferred to prison to serve the remainder of their tariff.) The power to send a prisoner to hospital may be exercised where the court has evidence from two registered medical practitioners, one of whom has given oral evidence, that the prisoner is mentally disordered, that it is appropriate for him/her to be detained in a hospital for medical treatment and that appropriate medical treatment is available for him/her in hospital. The direction must always be accompanied by a limitation direction under section 45A(3)(b), which has the same effect as a restriction direction under section 49, which is explained below.

15.3The hospital direction attaches to the sentence. MHCS must notify the Public Protection Casework Section (PPCS) of a life/IPP sentence prisoner’s admission to hospital directly from court. MHCS must also copy any offence-related papers in their possession to PPCS. It is the responsibility of PPCS to obtain all of the Source Planning Documents (documents including trial judge sentencing remarks, previous convictions, pre-trial medical reports etc) in these cases.

15.4On receipt of the trial judge’s sentencing remarks, PPCS will also set the first Parole Board review date.

15.5Prisoners transferred to hospital – transfer direction

Section 47 of the MHA empowers the Secretary of State by warrant to direct the detention in hospital for treatment of a person who is serving a sentence of imprisonment. The warrant is known as the transfer direction and it authorises the prisoner’s transfer to hospital within 14 days of the date of the warrant. The power may be exercised following reports from two registered medical practitioners certifying that:-

  • the prisoner is suffering from a mental disorder;
  • detention in hospital for treatment is appropriate; and
  • that appropriate treatment is available for them in hospital

15.6Restrictions on discharge of prisoners subject to a transfer direction - Restriction Direction

Under section 49 of the MHA 1983, the Secretary of State may make the transferred prisoner subject to the restrictions on discharge set out in section 41. A restriction direction makes it possible to return the patient to prison at any time before their release date. It also ensures an ISP is not released earlier than s/he would have been, if s/he had remained in prison.

15.7Unless terminated by the Secretary of State, the restriction direction lapses on the date when the patient would have been released from prison. In the case of an ISP, this is the date on which the Parole Board directs release on life/IPP licence, or when the prisoner is remitted to prison. When the restriction direction lapses, the Secretary of State will thereafter have no further responsibility for the case under the MHA, and the arrangements under the criminal justice legislation for lifers/IPPs serving their sentence in prison will apply in the usual way.

15.8Remission to prison

When the Responsible Clinician (RC) or the ‘First Tier Tribunal - Mental Health’ informs the Secretary of State that an ISP (who is subject to a hospital direction or a transfer direction) no longer requires treatment in hospital or no effective treatment can be given, then the normal procedure is for the ISP to be returned to prison to complete the sentence, unless to do so would be detrimental to the ISP’s health.

15.9Remissions from psychiatric hospitals to the prison system are arranged between the hospital concerned and the Prison Service operational line. In transfer direction cases, the ISP may be returned to the original sending establishment. In the case of ISPs detained under section 45A of the MHA, MHCS will liaise with the Regional Office that deals with the sentencing court to identify an appropriate prison.

15.10It is the responsibility of MHCS to formally notify PPCS that a lifer/IPP has been returned to prison custody. The receiving prison should contact PPCS for confirmation of the next Parole Board review date in such cases. The ISP’s offender supervisor in the prison must also inform the Offender Manager (IPP)/Home Probation Officer (Lifers) of the return to the prison. The receiving prison must ensure that a returning prisoner’s documentation includes a Care Programme Approach (CPA) care plan, which is required for all persons receiving care from specialist psychiatric services. The CPA care plan requires a risk assessment, a needs assessment and a written care plan. The care plan incorporates the requirements of section 117 of the MHA, which imposes a duty on NHS Primary Care Trusts to provide after-care services (i.e. indicating whether the individual requires on-going mental health services or not at the time of transfer).

15.11Powers of the First Tier Tribunal – Mental Health

Patients transferred from prison under section 47/49 of the MHA and hospital direction patients under section 45A, have a right to apply direct to the Tribunal during the first six months of the duration of the transfer direction or hospital direction and once in any period of 12 months thereafter. MHCS will automatically refer a restricted patient to the Tribunal after any three year period during which the patient has been continuously detained in hospital and has not had his or her case considered by the Tribunal.

15.12The Tribunal cannot order the discharge of a transfer direction or hospital direction prisoner without the prior agreement of the Secretary of State. It must notify the Secretary of State whether, in its opinion, the patient would be entitled to an absolute or conditional discharge. On receipt of a discharge recommendation, MHCS will refer the case to the PPCS. The Tribunal may make a further recommendation that, if the Secretary of State does not agree with its recommendation to discharge, the patient should remain detained in hospital. This is known as a section 74(1)(b) recommendation. Where the offender is pre-tariff, and there is no section 74(1)(b) recommendation, the offender should be remitted to prison custody, until such time as consideration for release would have otherwise been made. If the offender is post-tariff, whether or not there is a section 74(1)(b) recommendation the case should be referred to the Parole Board to consider the lifer/IPPs suitability for release.

15.13Entitlement to a Parole Board review

Prisoners transferred under MHA do not have a right of access to the Parole Board for as long as their detention in hospital for treatment is deemed lawful. A recommendation to the contrary by the RC, on acceptance by the Secretary of State, or a finding by the tribunal that the criteria for detention under MHA are not met, ends the lawful detention status.

15.14If an offender is transferred to detention in hospital when the parole review has already commenced (i.e. the referral has been issued to the Parole Board), then the review should be immediately suspended. PPCS must notify the Parole Board of the suspension and any action progressing the review will be halted.No further action will be undertaken by the Parole Board until the case is re-referred by PPCS.

15.15A transferred lifer/IPP will only be entitled to a Parole Board review in hospital where:

  • the Tribunal recommends that the prisoner is ready for conditional discharge, and makes a recommendation that if not discharged he should remain in hospital (section 74(1)(b)); or
  • the Tribunal previously recommended that the prisoner is ready for conditional discharge but if not discharged he should remain in hospital but the Parole Board did not direct release. In such cases, as with lifers/IPPs detained in prison custody, the patient is entitled to a review by the Parole Board at least every two years.

15.16In the first case above, the MHCS papers should indicate that although detention in hospital is not necessary, the Tribunal is against a return to prison on health grounds and that the patient should continue to be detained in hospital if not discharged. In such cases, on receipt of a discharge recommendation, MHCS will refer the case to PPCS to commence Parole Board action.

15.17In all other cases i.e. where the Tribunal are not against a return to custody, the patient will be returned to custody and the next Parole Board review date will be set by PPCS according to the individual circumstances of the case.

15.18Preparation of Parole Board dossier following discharge recommendation

In cases where the lifer/IPP is tariff expired/about to become tariff expired and MHCS has informed PPCS the Tribunal has recently recommended that the prisoner is ready for conditional discharge but if not discharged s/he should remain in hospital, PPCS must arrange for the case to be referred to the Parole Board for listing for a hearing under section 28 of the Crime (Sentences) Act 1997, as soon as possible, to consider suitability for release direct from hospital.

15.19MHCS should provide PPCS with the papers considered by the Tribunal which, along with its decision and reasons, should be attached in the ‘Relevant Papers’ section. The RC report should normally provide a summary of progress in hospital.

15.20The Tribunal papers will normally include a:

  • statement by the Secretary of State setting out the circumstances of the offence, the events leading to admission to hospital and observations on the patient’s suitability for discharge.
  • list of previous convictions
  • clinical reports, and
  • a social work report.

15.21PPCS will commission a report from the Offender Manager (IPP)/Home Probation Officer (Lifers), who has 28 days in which to complete and return the report. PPCS will also prepare the skeleton dossier for the Parole Board review and will send it together with the Offender Manager (IPP)/Home Probation Officer (Lifers) report, to the RC at the hospital within 7 days of receiving the Report. PPCS will also forward a copy of the dossier to the Parole Board. It is the responsibility of the RC/hospital managers to ensure that the dossier is disclosed to the lifer/IPP and that s/he submits any representations to the Parole Board within 28 days.

15.22In cases where an Offender Manager/HPO has not been allocated to the case, PPCS will contact the Probation Area involved at the time of the sentencing to request that a Supervising Probation Officer be allocated to the case. In cases of difficulty, the NOMS Offender Management and Assessment Unit must be contacted for assistance.

15.23Consideration by the Parole Board

Cases where the prisoner is detained in hospital and a Tribunal recommendation for discharge has recently been received are normally considered at an oral hearing by the Parole Board using a reduced timetable of 13 weeks. The oral hearing will take place at the hospital in which the prisoner is being detained.

15.24Secretary of State’s View and Witnesses

PPCS will provide a written Secretary of State’s view in advance of the hearing where appropriate and where necessary will request for relevant witnesses to attend the hearing.

15.25The RC will normally be called as a witness to every hearing in order to answer any questions related to treatment and where appropriate its affect on risk. The Offender Manager (IPP)/Home Probation Officer (Lifers) will also normally be expected to attend the oral hearing to answer questions about the risk management/release plan. Where possible, a member of the Public Protection Advocacy Team will represent the Secretary of State at the oral hearing.

15.26Release on life/IPP licence directed by Parole Board

On receipt of a Parole Board direction for release, PPCS will contact MHCS, the Offender Manager/HPO and RC to make the necessary arrangements.

15.27On release,the licensee will be supervised in the community by the National Probation Service in the same way as any other released lifer/IPP. PPCS will monitor the licensee’s progress by way of regular risk assessments from the supervising Probation Area. No release warrant or other special documentation is needed from MHCS before a patient’s release on licence is put into effect.

15.28If recall is deemed appropriate following release, the licensee will be returned to prison. It is for MHCS and medical staff at the prison to consider the transfer back to hospital under section 47/49 of the MHA if the licensee’s mental condition is a cause for concern.

15.29Guidance about release, supervision on Licence and Recall can be found in Chapter 13 of PSO 4700, the Indeterminate Sentence Manual.

15.30Parole Board does not direct release

If the Parole Board does not direct release PPCS will set the next review date and will notify the patient, MHCS, RC and Offender Manager/HPO accordingly. The detaining hospital should arrange for any outstanding areas of risk identified by the Parole Board and PPCS to be addressed.

15.31The case management will still be held by MHCS, although PPCS will request reports from the hospital and the Offender Manager/HPO and will prepare the dossier for the next Parole Board review.

15.32Where a further Tribunal determines that the patient is not suitable for discharge, the Parole Board review will be cancelled pending a fresh discharge recommendation from the Tribunal.

15.33Subsequent Parole Board review for prisoners detained in hospital

Where a prisoner continues to be detained in hospital following a Parole Board review, the next hearing must take place within 2 years of the previous panel’s consideration. Each review date will be set on the individual merits of the case i.e. based on the amount of outstanding risk reduction work identified and the time it will take to complete this work.

15.34Where a subsequent Parole Board review is due, PPCS will:

  • refer the case details to the Parole Board for listing,
  • ask the RC to request up to date progress reports from relevant staff,
  • request a PAROM 1 report to be prepared by the Offender Manager/HPO,

and PPCS will then prepare the skeleton dossier comprising:

  • the original Tribunal papers,
  • the Tribunal recommendation for discharge;
  • the last Parole Board recommendation; and
  • details of progress up to the last Parole Board review.

15.35PPCS will send the skeleton dossier to the RC and request they add the up to date reports from the hospital. The report from the Offender Manager/HPO will also be disclosed by PPCS once received.

15.36PPCS should request that the RC adds the new hospital progress reports to the dossier and discloses the completed dossier to the prisoner, the Parole Board and PPCS in line with the appropriate disclosure date. The prisoner should be advised by the RC to make any representations within 28 days and on receipt of these the RC should forward them to the relevant parties. These cases follow the normal 26 week timetable (see PSO 6010).

15.37Parole Board Reviews for prisoners returned to prison custody

On receipt of notification from MHCS that a lifer/IPP has been returned to custody, PPCS will inform the prison and prisoner of the date on which the next Parole Board review will begin. The MHCS file will contain a discharge summary for PPCS to use at the next Parole Board Review.

15.38Pre-Tariff Expiry Prisoners

If the returned lifer/IPP is not tariff expired, a pre-tariff review to consider suitability for open conditions will take place as follows.

15.39If the prisoner has previously been notified of the pre-tariff review date and that date has not passed, then the review should continue as planned. If the review is imminent, PPCS will contact the Offender Management Unit at the prison to check that the prisoner still wishes to proceed with the review on that date. Any request to defer the review must be submitted in writing with reasons and with the views of the prison attached.

15.40If the first review date is not to be deferred, PPCS will prepare the skeleton dossier in the normal way. Additionally, remitting hospitals will provide, upon request, the Responsible Clinician's discharge report to the Parole Board to give a summary of the prisoner’s progress in hospital. If the lifer/IPP returned to prison following recommendation from the tribunal then the papers considered by the Tribunal with its decision and reasons must also be attached.