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Chapter 15.
Chapter 15 Page 1
MENTALLY DISORDERED INDETERMINATE SENTENCED PRISONERS
15.1
All 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.
15.2
Transfer 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.
15.3
The 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.
15.4
On receipt of the trial judge’s sentencing remarks, PPCS will also set the first Parole Board
review date.
15.5
Prisoners 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:


15.6
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
Restrictions 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
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ensures an ISP is not released earlier than s/he would have been, if s/he had remained in
prison.
15.7
Unless 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.
15.8
Remission 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.
15.9
Remissions 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.
15.10 It 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).
15.11 Powers 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.
15.12 The 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.
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15.13 Entitlement 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.
15.14 If 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.
15.15 A 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.
15.16 In 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.
15.17 In 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.
15.18 Preparation 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.
15.19 MHCS 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.
15.20 The 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.
15.21 PPCS 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
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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.
15.22 In 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.
15.23 Consideration 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.
15.24 Secretary 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.
15.25 The 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.
15.26 Release 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.
15.27 On 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.
15.28 If 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.
15.29 Guidance about release, supervision on Licence and Recall can be found in Chapter 13 of
PSO 4700, the Indeterminate Sentence Manual.
15.30 Parole 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.
15.31 The 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.
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15.32 Where 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.
15.33 Subsequent 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.
15.34 Where 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.
15.35 PPCS 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.
15.36 PPCS 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).
15.37 Parole 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.
15.38 Pre-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.
15.39 If 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.
15.40 If 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.
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15.41 The prison OMU must arrange for a set of up to date progress reports to be written on the
prisoner, including a report from the Offender Manager (IPP)/Home Probation Officer
(Lifers). In cases where an Offender Manager/Home Probation Officer has not been
allocated to the case, the OMU must contact the Probation Area involved at the time of the
sentencing to allocate one to the case. In cases of difficulty, the NOMS Offender
Management and Assessment Unit must be contacted for assistance.
15.42 If the pre-tariff review date has passed, PPCS should refer the case to the Parole Board
in order that release can be considered at the earliest opportunity.
15.43 If the prisoner has not previously been notified of the pre-tariff review date, PPCS will
consider whether it can be re-scheduled prior to tariff expiry date.
15.44 PSO 6010 should be referred to for information about Parole Board reviews and the
timetable.
15.45 Tariff-Expired Prisoners
If the returned prisoner has become tariff expired while in hospital or is about to
become tariff expired, PPCS will refer the Parole Board for a review to be held as soon as
possible (and by the tariff expiry date in the latter case, if possible).
15.46 Where the review is due to proceed, the process will follow that outlined above for pre tariff
expiry cases.
15.47 Technical Lifer Status
A small number of transferred lifers are still as a matter of policy released from hospital on
conditional discharge without referral of the case to PPCS and the Parole Board. This
group are known as “technical lifers.” Technical lifer status used to be considered where the
offender was influenced to a major extent by his mental disorder at the time of the offence
but the court was unable to make a hospital order for various reasons including:




No suitable bed was available; or
Medical reports before the Court did not accurately describe the individual’s medical
state; or
No medical reports were offered to the Court; or
The offender was sentenced before 1958, and a hospital order disposal or
diminished responsibility verdict were not available.
15.48 Applications for technical lifer status could be made up until 2 April 2005, after which it was
no longer considered to be a necessary provision. However, there are a number of
technical lifers still in the system and the policy towards them remains as it was prior to 2
April 2005.
15.49 A ‘technical lifer’ can be discharged from hospital by MHCS on behalf of the Secretary of State
in the following ways:

A conditional or absolute discharge, made under section 42 (2) of the 1983 Act

A discharge made under section 50 (1) (b)

By the Tribunal under section74 (2) (where a tribunal recommendation will be followed
as a matter of policy)
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15.50 In addition, it is worth noting that:

If the Tribunal recommendation under 74(2) was not followed (contrary to policy), the
lifer would move to detention in prison as an ordinary lifer, but then, provided his tariff
had expired, he could apply to the Parole Board for release as any other prisoner.

If the same happened as above, but the Tribunal additionally recommended continued
detention in hospital, the lifer would remain in hospital but with the same rights to apply
to the Parole Board.
(Replacement chapter for PSO 4700 ISP Manual)
Issue date 12/04/2010