Section 47/49: transferring sentenced prisoners to hospital

What is section 47 of the Mental Health Act?

Section 47 is how a sentenced prisoner gets to hospital for treatment. The Justice Secretary issues a warrant, called a transfer direction, on two doctors' reports, and it has the same effect as a hospital order (s47(1), (3)).

The Justice Secretary usually adds a s49 restriction direction. That keeps leave and discharge decisions with the Justice Secretary while the sentence is still running (MoJ restricted patient briefing).

Prison healthcare isn't a hospital under the Act, so nobody can be treated there without consent under the MHA (Code 22.30). If a prisoner needs that, they need a transfer.

Who can be transferred under section 47?

• Sentenced prisoners. Anyone detained under a sentence or order for detention made in criminal proceedings, except an order following insanity or unfitness. That includes young offenders and children serving detention sentences (s47(5); Ref Guide 19.4).
• Two smaller groups. People committed to custody for failing to keep the peace, and people committed to prison for not paying a sum ordered on conviction (s47(5)).
• Not remand prisoners or immigration detainees. They're transferred under section 48, which needs an urgent need for treatment.
• Prisoners who'd consent. Consent doesn't rule out transfer, if prison is making their disorder worse and nothing suitable exists in prison (Code 22.43).

For personality disorder, consider the Offender Personality Disorder Pathway in prison first (Code 22.43). NHS England's 2021 guidance covers adults, and children's transfers follow separate guidance.

Section 47 criteria

The Justice Secretary can direct a transfer if two doctors' reports, one from a s12 approved doctor, show (s47(1), s54(1)):

• Mental disorder of a nature or degree that makes detention in hospital for treatment appropriate.
• Appropriate medical treatment available. Case law (ASK, 2019) reads this as available in practice, so a bed must have been identified (MHA 2025 explanatory notes 281).
• The public interest. The Justice Secretary must think transfer expedient, having regard to the public interest and all the circumstances.

Learning disability alone counts only with abnormally aggressive or seriously irresponsible conduct (s1(2A), (2B)). The 2025 Act will let the treatment test be met before a bed is found, but that part isn't in force yet.

How a prison transfer works: step by step

NHS England's 2021 guidance sets two 14-day stages, from referral to first assessment and from there to transfer. The whole process shouldn't exceed 28 days (NHS England 2021, 3.1).

1. Day 0: the prison mental health team refers the person to the right inpatient service and identifies the responsible commissioner. The 28 days start.
2. Days 1 and 2: they ask MHCS for advice on the level of security, and complete the first medical report and Form H1003.
3. Within 3 days: the receiving service acknowledges the referral. A dispute about who pays doesn't stop the clock.
4. By day 14: the receiving service completes an access assessment, writes the second medical report and identifies a bed.
5. The reports, one from a s12 approved doctor, go to MHCS with the paperwork. MHCS issues the warrant and the prison arranges the escort.
6. The person must reach the named hospital within 14 days of the warrant, or it lapses (s47(2)). A new direction can be given if needed (Ref Guide 19.8).

The Code says transfers should be as quick as admissions from the community, and unacceptable delays should be investigated (Code 22.42).

Section 47 with or without section 49

• Restricted (s47/49). Treated like a s37/41 patient. The Justice Secretary must agree leave, transfer and discharge, there's no renewal, and no CTO (s49(2); Ref Guide 19.12).
• Unrestricted (s47 alone). Treated like an unrestricted hospital order: 6 months at first, then renewable. The RC can discharge or use a CTO, and the Justice Secretary has no further role (Code 22.64).
• No return to prison without restrictions. An unrestricted patient can't be sent back, even if they no longer need treatment. Their sentence and licence still run (Ref Guide 19.11).
• Late transfers. If transfer happens very close to release, the Justice Secretary may leave off the restriction direction (MoJ restricted patient briefing).

Rights after transfer

• Tribunal, if restricted. Once in the first 6 months, once in the next 6 months, then once a year (s69(2), s70).
• Tribunal, if unrestricted. Once in the first 6 months, then once in each renewal period. The nearest relative can apply in the renewal periods, but not in the first 6 months (Ref Guide figures 17, 26).
• What the tribunal can do for a s47/49. It can only say whether they'd be entitled to discharge on a restriction order. Discharge needs the Justice Secretary's agreement within 90 days, or they go back to prison unless the tribunal recommends hospital (s74).
• Treatment, aftercare and advocacy. Part 4 applies in hospital, section 117 aftercare applies when they leave, and they can have an IMHA (s117(1), s130C).

Going back to prison: remission under section 50

For a s47/49 patient, remission starts when the RC, another approved clinician or a tribunal notifies the Justice Secretary. The notice says they no longer need treatment in hospital, or that no effective treatment can be given there. The Justice Secretary can then send them back to prison, or release them on licence (s50(1)).

• Use the remission form. The prison governor or an operational manager must agree to take them back. Prison healthcare staff can't agree on the prison's behalf (MoJ remission form).
• Hold a section 117 meeting first, with the prison healthcare team, unless it's urgent (Ref Guide 19.21).
• Aim for 14 days. NHS England aims to complete remission within 14 days of the decision (NHS England 2021, 4.1).
• Not after the release date. Remission no longer applies once it has passed (s50(1)).

When someone is well enough for leave, MHCS expects the RC to consider whether remission should be sought (MHCS leave guidance 4.3).

What is a notional section 37?

On a determinate sentence, the restriction direction ends at the release date, the day they'd have been entitled to leave prison, unconditionally or on licence (s50(2), (3)). If they're still in hospital, including on leave, they stay detained as if on an unrestricted hospital order. That's the notional s37 (Code 22.75; Ref Guide 19.16).

From then on the RC can discharge them, use a CTO or guardianship, or keep them in hospital, and the Justice Secretary has no say (Code 22.65). They can apply to the tribunal within 6 months (s69(2)). Licence conditions may still apply, so stay in touch with the offender manager and victim liaison officer (Code 22.77).

On a life or indeterminate sentence there's no fixed release date. The restrictions stay until the Parole Board directs release (Ref Guide 19.15).

Transfers late in a sentence

A transfer near the end of a sentence gets heightened scrutiny, because it could lengthen detention (Code 22.68; Ref Guide 19.3). The Justice Secretary needs to be satisfied that admission is urgently necessary for their own health or safety. The urgency must also be such that waiting until the release date isn't safe (NHS England 2021, 3.6).

Refer early, and talk to MHCS as soon as you can. If transfer isn't possible, consider whether a civil section will be needed (Ref Guide 19.3).

Section 47/49 vs section 48/49

The 28-day limit under the 2025 Act

The 2025 Act will turn the 28-day target into a legal duty, through a new s47A. Everyone involved must seek to ensure that the decision, the warrant and the move to hospital happen within 28 days of the first request for a medical report. A shortage of beds or staff won't count as exceptional (MHA 2025 s37). DHSC aims to bring it in by December 2027.