The Justice Secretary shares responsibility for every restricted patient. In practice that means the Mental Health Casework Section.
What is a restricted patient?
A restricted patient is detained under Part 3 with special restrictions that give the Justice Secretary a say in their care. There are three routes in: a s37/41 hospital order, a s45A hospital and limitation direction, or a transfer from custody with a s49 restriction direction (Code 22.54).
People found unfit to plead or not guilty by reason of insanity can also be given a s37/41. A restriction order has no time limit. Restrictions tied to a prison sentence end at the release date (Code 22.54).
What is the Mental Health Casework Section?
MHCS is the team in HM Prison and Probation Service that makes the Justice Secretary's decisions on restricted patients day to day. Its officials act for the Justice Secretary (Code 22.53; , 2017).
It has no clinical role: treatment is for you and your team. Its focus is public protection. Every decision follows a risk assessment covering clinical opinion, the index offence, victims, current presentation and progress (MoJ, 2017).
What needs the Justice Secretary's consent?
- Leave of any kind beyond the boundary of the detention authority (s41(3)(c)(i)).
- Transfer to another hospital, or out of a named unit (s41(3)(c)(ii); Code 22.26).
- Discharge by the RC (s41(3)(c)(iii)). A tribunal can discharge a s37/41 patient without it, but not a transferred prisoner or s45A patient (ss73, 74).
- Remission of a transferred prisoner to custody, by the Justice Secretary's warrant or, in some cases, the court (ss50 to 53).
- Recall of a conditionally discharged patient, which only the Justice Secretary can do (s42(3)).
Moving within the hospital or unit named on the detention authority doesn't need consent, but tell MHCS (Code 22.26). So check exactly what the order or warrant names.
Leave for restricted patients
MHCS expects leave to build up in stages, with escorted leave in the community normally the first (MHCS leave guidance 6.3).
- Medical leave for emergencies and routine appointments is usually authorised on admission, except for high profile patients. In an emergency, go first and tell MHCS as soon as you can (6.1, 6.2).
- Unescorted leave is decided by senior officials, for added scrutiny (6.7).
- Continuous overnight leave is normally agreed for up to 3 months at a time. For a s37/41 patient, about 6 months in all is the reasonable maximum before a discharge application (6.10).
- Court and compassionate leave need consent too. A s48 patient gets leave for their trial on admission (6.12, 6.13).
- Never abroad. MHCS won't authorise leave outside the UK (6.18).
If you have doubts about leave, suspend it and tell MHCS (Code 22.60). The police can interview a restricted patient without the Justice Secretary's consent, but must return them to hospital afterwards, and you should tell MHCS (6.15). See section 17 leave for the general rules.
Transferred prisoners and s45A patients
For many of these patients the expected route is back to prison, not release (MoJ, 2017). When they're well enough for leave, MHCS expects you to consider whether they still meet the criteria, or should be remitted (MHCS leave guidance 4.3).
Consult their offender manager before any application, and include their views (4.4). As a rule, they won't get unescorted leave from a secure hospital if they wouldn't be eligible for temporary release from prison. For a determinate sentence, restrictions end at the release date, leaving a notional s37 if they still need treatment (Code 22.75).
How to apply to MHCS: step by step
- If the case is unusual, talk to the casework manager first. Senior managers also give advice by email.
- Use the current MoJ form: leave, trial leave, transfer (same, lower or higher security), discharge, or change of conditions.
- Complete every section. Incomplete forms are rejected, and any extra information MHCS asks for is expected within 5 working days.
- Include the victim liaison officer's views if a victim is in the Victim Contact Scheme, and MAPPA's views for Level 2 and 3 cases (MHCS leave guidance 8.1, 9.2).
- Let the patient add their comments, but don't show them third-party material such as a victim's account.
- Don't chase before the target date. MHCS aims to decide upgrades within 7 days, level transfers within 14, and downgrades and trial leave within 28. Transfer authorisations last 90 days.
MAPPA and restricted patients
Health services must cooperate with MAPPA (Code 22.87). Most restricted patients are MAPPA eligible, mostly as Category 1 (registered sexual offenders) or Category 2 (violent offenders) (MoJ, 2021).
- On admission, confirm within 3 days whether they're eligible, and notify the coordinator on the MAPPA I form.
- Before leave, tell the coordinator about a Level 1 application. For Level 2 and 3, discuss it at a MAPP meeting first.
- Before discharge, update MAPPA about 6 months ahead. MHCS won't consider a conditional discharge application without that notification.
- Lead agency. Mental health usually leads for hospital order patients, and probation for s47/49 and s45A patients.
Victims and restricted patients
Victims of serious violent and sexual offences can join the Victim Contact Scheme where the patient was sentenced on or after 1 July 2005. They're told about key developments and can make representations about discharge conditions (Code 40.3). Other victims can be offered the scheme at discretion (Code 40.5).
If a victim is in the scheme, get the VLO's views before you apply for leave. Common requests are no-contact conditions and exclusion zones. Details of when and why leave happens aren't passed to the victim (MHCS leave guidance 8.1).
High profile patients
Some patients are designated high profile: an unusually high risk of harm, sensitive victim issues, or a notable offence with heavy media attention. Senior MHCS managers decide all their applications. The criteria are the same, but the scrutiny is greater. They don't get medical leave automatically, so use the separate medical leave form (MHCS leave guidance 4.5, 6.1).
Reports and notifications
- Annual statutory report. The must report at least once a year (s41(6), s49(3)). It's due on the anniversary of the order, or of a recall.
- Absconding. Tell MHCS straight away on the abscond form, with the police reference, and send the return form when they're back.
- Fitness to plead. For a patient found unfit to plead, MHCS asks each year whether they're now fit. If they are, tell MHCS on its form, and the Justice Secretary can remit them for trial (1964 Act s5A(4)).
- Tribunals. The Justice Secretary is a party, so send copies of your tribunal reports to MHCS (Tribunal Rules r1(3), r32(7)).
Mistakes to avoid
- Leave beyond the order. A patient detained to a named ward can't go into the wider grounds without MHCS agreement (MHCS leave guidance 5.5).
- No MAPPA discussion. MHCS won't proceed with a Level 2 or 3 leave application until it's been discussed at a MAPP meeting.
- Late MAPPA notice. Without it, MHCS won't consider a conditional discharge application.
- Waiting for the tribunal. You can apply to the Justice Secretary for a conditional discharge at any time (s42(2)).
The rules in brief
- MHCS acts for the Justice Secretary. It must agree leave, transfer and the RC's discharges (a tribunal can discharge a s37/41 patient without it), and it receives the RC's annual statutory report.
- Leave. Apply early, with a clear risk assessment. MHCS usually wants escorted leave to have gone well before unescorted leave.
- MAPPA. Most restricted patients come under MAPPA as violent or sexual offenders, so plan with the MAPPA team.
- Victims. Victims of serious violent or sexual offences can join the Victim Contact Scheme and comment on discharge conditions.
- High profile patients are designated for extra scrutiny of leave and discharge.
Read more: Restricted patient system - MoJ background briefing (2017) (partly out of date) · MHCS leave guidance for clinicians (MoJ, Oct 2024) · MAPPA and the restricted patient system (MoJ, 2021) · Supervised discharge guidance (MoJ, Feb 2026) (partly out of date) · MHA 1983, s41
Questions trainees ask
How often must the RC report on a restricted patient?
At least once a year, to the Justice Secretary. It's called the annual statutory report.
What is the Mental Health Casework Section?
It's the part of HM Prison and Probation Service that makes the Justice Secretary's decisions on restricted patients. That includes leave, transfers, discharge and recall.
Does a restricted patient need MHCS permission for leave?
Yes. Any leave beyond the hospital or unit named on the detention authority needs the Justice Secretary's consent (s41(3)(c)). For emergency medical treatment, go first and tell MHCS as soon as you can.
Can a tribunal discharge a restricted patient without the Ministry of Justice?
Yes, for a s37/41 patient. For a transferred prisoner or s45A patient, it can only tell the Justice Secretary whether they'd be entitled to discharge.
What is a high profile restricted patient?
One designated for extra scrutiny because of unusual risk, sensitive victim issues or major media interest. Senior MHCS managers decide their applications.
How long does MHCS take to decide a transfer?
Its targets are 7 days for an upgrade, 14 for a level transfer and 28 for a downgrade or trial leave. Don't chase before the target date.
Do victims have a say in a restricted patient's leave or discharge?
Victims in the Victim Contact Scheme can make representations about conditions, such as no-contact rules or exclusion zones, through their victim liaison officer.
Test yourself
Quick-fire
The RC reports to the Justice Secretary on a restricted patient at least
Show the answer
Once a year