Here’s one for you: what are the legalities around a section 47/49 MHA patient failing to return from authorised leave? – what power exists to re-detain them and would a warrant be required to enter premises in order to do so?
First things first: I don’t think I’ve ever thought about or heard before of a s47/49 patient being granted authorised leave. These aren’t section numbers we hear about very often so it might be worth me covering them, along with section 48 – they all relate to prison transfers. I hadn’t ever considered before the idea that a prisoner transferred to hospital would be granted leave from hospital because they certainly wouldn’t have been granted leave from prison. That’s probably more a comment about my ongoing knowledge gaps as it is about anything else and about how much I still have to learn but as long as someone is in hospital having been transferred under section 47 MHA, they are still a sentenced prisoner.
Where someone is in prison and it is assessed they require inpatient hospital care for their mental health, sections 47 and 48 exist to allow the transfer of someone from the HMP estate to the NHS estate, for treatment. Section 47 relates to convicted, sentenced prisoners and section 48 relates to any other kind of prison, for example those on remand or detained for immigration purposes. Where someone is assessed as requiring transfer, the Secretary of State for Justice (S0S) can issue instructions under these provisions to compel the move. Section 49 is something additional to either of those mechanisms: it relates to someone who is thought to pose a “risk of serious harm” to the public and if the SoS thinks it justified, they can impose a section 49 restriction on the doctors in charge of this prisoner-patient’s care and it prevents the responsible clinician from doing a number of things without further permissions from the Ministry of Justice mental health unit, which acts on behalf of the SoS, including transferring the person a different mental health unit, authorising the person’s discharge from hospital or authorising a period of temporary leave from hospital.
ABSCONDERS
Some of you may have read that overview and noticed similarities with something else covered a lot on this website: the restricted hospital order, also sometimes known as a “section 37/41”. Section 37 allows a court to send someone to hospital as a sentence after a court process and section 41 restricts the responsible clinician from doing any of the above three things. In that respect section 47/49 is a near-identical instrument, it’s just one that kicks in after prison, not after court and these similarities are relevant to understanding the answers to our exam questions.
When someone is transferred from prison to hospital – forget the s49 for a moment – sections 47(3) and s48(3) MHA states they are to be regarded as if they had arrived in hospital on a hospital order from court, under s37 MHA. When we read section 40(4) MHA, it tells us that hospital order patients are, for the most part, to be treated as if they had been detained in hospital under s3 MHA for treatment – the exceptions which apply are about tribunals and oversight, not the day-to-day treatment of patients.
Complicated enough so far?
This therefore means, a s47 patient is treated as if they were a s3 patient for the purposes of most things and if you read part 1 of Schedule 1 MHA, it points out the s18 (power to re-detain AWOL patients) is one of those things. So there is your answer about the power to re-detain a s47/49 patient who fails to return from authorised leave. As soon as they fail to show up, they are AWOL under the Mental Health Act and can be re-taken under s18, as can any other AWOL patient.
POWER OF ENTRY
So just the one final point about entry: in my situation here, which was an enquiry from a police force in Wales, it was being suggested the police had a power of entry to re-take the patient, indeed it was suggested by the NHS it had been ‘verbally authorised’ by the MoJ MH unit on behalf of the SoS. Now, I’m not beyond learning new things even at this late stage in my journey through this world, but that sounded weird to me. None of the people I usually bounce ideas of – thank you @asifamhp from X (Twitter) – thought this sounded right.
Do you remember the page I have for most relevant case-law? – you’ll find the case D’Souza v DPP (1992) on there and it’s relevant here. In D’Souza, officers force entry to a premises to re-take an AWOL patient, purporting to rely upon s17 PACE when the threshold for that wasn’t really met. The court found for Mr D’Souza, holding the police would have needed a s135(2) warrant to enter where no grounds under PACE existed and that is the answer here as well.
Section 47/49 AWOL patient? – can be re-detained under s18 MHA if found, a warrant is required under s135(2) MHA if entry to premises needs to be forced where PACE cannot apply. And remember: the police can apply on their own for a s135(2) warrant and I did so once in my career and it was frustrating and amusing story, best told another day.
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2025
I am not a police officer.
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – www.legislation.gov.uk
Mental Health Cop 