Determinate Sentenced Prisoners Transferred Under the Mental Health Act 1983 - Psi 18/2013

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DETERMINATE SENTENCED PRISONERS TRANSFERRED UNDER THE MENTAL HEALTH ACT 1983

This instruction applies to Reference

Prisons PSI 18/2013 Probation PI 08/2013 Issue Date Effective Date Expiry Date Implementation date (Update) 08 July 2013 08 July 2017 17 September 2013 Issued on the NOMS Agency Board authority of For action by All staff responsible for the development and publication of policy and instructions NOMS HQ All prisons Contracted Prisons* Probation Trusts Governors Contract Managers in Probation Trusts Probation Trust Chief Executives * If this box is marked, then in this document the term Governor also applies to Directors of Contracted Prisons Instruction type service specification support For information All staff responsible for the management of those determinate sentenced prisoners transferred under the Mental Health Act 1983, including the issuing of licences. Governors/Directors of Contracted Prisons. Provide a summary of This PSI provides guidance in relation to the process to follow when the policy aim and the determinate sentenced prisoners are transferred under the Mental reason for its Health Act 1983, including the issuing of licences. development/ revision Contact Public Protection Casework Section: [email protected] James Hough - 03000 474475, [email protected] Jenny Stokes - 03000 474365, [email protected] Parole Help Desk - [email protected] Associated documents PSI 19/2013 - Generic Parole Process for Determinate Sentenced Prisoners (GPP-D) PSI 40/2012 - Licence and Licence Conditions PSI 30/2012 - The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 - General Summary of Release and Recall Provisions PSI 39/2011 - Categorisation and Recategorisation of Women Prisoners PSI 40/2011 - Categorisation and Recategorisation of Adult Male Prisoners

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PSI 41/2011 - Categorisation and Recategorisation of Young Adult Male Prisoners PSI 03/2006 - Transfer of Prisoners to and from Hospital under Sections 47 and 48 of the Mental Health Act I983 PSI 72/2011 - Discharge Replaces the following documents which are hereby cancelled: PSO 6000 - Chapter 11

Audit/monitoring: Governors and Directors of Contracted Prisons must ensure that staff are made aware of this PSI and comply with the mandatory instructions it contains (shown in italics.) Prisons must demonstrate compliance with these actions when required to do so. As an instruction is a mandatory contract variation and in providing contractual services, contract managers must ensure that Probation staff deliver the mandatory instructions in the PI.

Updated 17 September 2013: Paragraph 2.1 Amended – This update provides clarity of how a transfer should be recorded on Prison Nomis.

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CONTENTS

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Section Subject For reference by: 1 Executive Summary 1.1 Background 1.4 Desired outcome 1.5 Application 1.6 Mandatory actions 1.8 Resource impact 2 Operational Instructions 2.1 Automatic Conditional Release, Standard Determinate Sentenced prisoners and Extended Determinate Sentenced prisoners transferred to hospital NOMS Agency staff 2.3 Discretionary Conditional Release and Extended (Headquarters), Determinate Sentenced prisoners transferred to hospital Prison, Probation 2.12 Discretionary Conditional Release and Extended Determinate Sentenced prisoners returned from hospital to prison 2.13 Recall of determinate sentenced prisoners transferred from prison to hospital under the Mental Health Act 2.15 Non-Parole Licences 2.20 Notifications to the Police Annex A First tier tribunal (mental health) disclosure form / prisoner’s representation

PSI 18/2013 – PI 08/2013 UNCLASSIFIED ISSUE DATE 17/09/2013 UNCLASSIFIED PAGE 4

1. Executive Summary

Background

1.1 This guidance replaces that contained in Chapter 11 of PSO 6000 ‘Parole Release and recall’. The guidance has been amended to reflect updates to naming conventions etc. and to amend processes to cover the new Extended Determinate Sentence (EDS) which was introduced in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA12) and which applies to offenders convicted on or after 3 December 2012 (who would previously have received either an IPP or EPP sentence).

1.2 Determinate sentenced prisoners may be transferred from prison to hospital under the Mental Health Act 1983 (MHA) at any point in the sentence.

1.3 If a prisoner, who is either (i) subject to discretionary conditional release (DCR) under the release provisions of Schedule 20B of the Criminal Justice Act 2003 (formerly the release provisions of the Criminal Justice Act 1991 - where the sentence was for a term of four years or more and the offence is one contained in Schedule 15 of the 2003 Act), is returned to prison custody following his/her Parole Eligibility Date (PED) or, (ii) sentenced to an EDS with a discretionary release date at the two thirds point of the custodial term and is returned to prison custody following the conditional release date and before the expiry of the custodial term, the standard Generic Parole Process for Determinate Sentenced Prisoners as set out in PSI 19/2013 must be followed. The expectation is that the local prison will have been involved in meetings under section 117 of the Mental Health Act 1983 prior to the patient being returned to prison custody. This would include obtaining reports from the hospital to cover progress made there. If the prisoner is not returned to prison before the Non-Parole Date (NPD) or the expiry of the custodial term (EDS cases) or the Automatic Release Date (ARD) for a Standard Determinate Sentence (SDS), he/she must be released and remain subject to supervision in accordance with the sentence. A licence must be issued at the appropriate time, even if there is doubt about whether the prisoner will leave hospital before the Licence Expiry Date (or Sentence Expiry Date in respect of prisoners serving a SDS or EDS). Further guidance on the return of prisoners from High and Medium Secure Hospitals is contained in PSI 39/2011 on the Categorisation and Recategorisation of Women Prisoners; PSI 40/2011 on the Categorisation and Recategorisation of Adult Male Prisoners; and PSI 41/2011 on the Categorisation and Recategorisation of Young Adult Male Prisoners.

Desired Outcomes

1.4 This instruction is intended to ensure that all staff are fully aware of their role and the process to be followed when a determinate sentenced prisoner is transferred from prison to a hospital under the MHA 1983, including their referral to the Parole Board where appropriate and subsequent release on licence.

Application

1.5 Section 2 of this instruction explains each of the sentences this instruction applies to, the different process to be followed in each case and who is responsible at each stage.

Mandatory Actions

1.6 All staff responsible for the management of determinate sentenced prisoners transferred under the MHA, including prison staff, Public Protection Casework Section (PPCS), Mental Health Caseworking Section (MHCS) in NOMS and Offender Managers, must ensure they are fully acquainted with this instruction and the mandatory instructions listed. In particular:

 The prison Offender Management Unit (OMU) Staff must arrange for the licence to be issued for Automatic Conditional Release (ACR) prisoners, EDS prisoners who are eligible to be released automatically at the two thirds point of the custodial sentence, and for SDS prisoners after discussion with the Offender Manager.

 PPCS will liaise with the MHCS to collate the dossier and issue the licence for parole eligible DCR cases, and EDS who are eligible to be considered for discretionary release at the two thirds point of their custodial term.

 PPCS will issue the NPD licence where a DCR prisoner remains in hospital until his NPD or an EDS prisoner eligible to be considered for discretionary release remains in hospital until the expiry of his custodial term, after discussion with the Offender Manager. PPCS will approve the licence conditions in these cases.

1.7 As an instruction is a mandatory contract variation and in providing contractual services, contract managers must ensure that Offender Managers deliver the mandatory instructions in the PI.

Resource Impact

1.8 There are no additional resource implications.

(Signed)

Digby Griffith Director of National Operational Services, NOMS

2. Operational Instructions

Automatic Conditional Release, Standard Determinate Sentenced prisoners and Extended Determinate Sentenced prisoners transferred to hospital

2.1 If an ACR prisoner, SDS prisoner or an EDS prisoner eligible to be released automatically at the two thirds point of their custodial term is transferred under the Mental Health Act 1983, OMU Staff must bring forward his/her records to one month before the Conditional Release Date (CRD), PNOMIS should record a release. The OMU Staff must follow the guidance set out in PSI 40/2012 – Licences and Licence Conditions, in respect of the consideration of additional and (where applicable) court-recommended licence conditions, and must arrange for the licence to be issued. This must be signed by the Governor in the normal way and sent to the Offender Manager or social worker attached to the hospital, so that it can be explained to the prisoner and served on him/her. Copies must also be provided for the Chief Executive Officer of the hospital and the Responsible Clinician (RC). The OMU Staff must ask for signed copies to be returned to the prison for distribution in the normal way.

2.2 If a young offender (YO) is transferred to hospital from a YOI, the OMU Staff must ensure that a Notice of Supervision is issued in appropriate cases. If the offender can no longer be regarded as a YO when the CRD is reached (whether for ACR or SDS prisoners) and the YOI cannot therefore issue the necessary adult licence, the case must be referred to PPCS so that it can, exceptionally, issue an ACR/SDS licence.

Discretionary Conditional Release and Extended Determinate Sentenced prisoners transferred to hospital

2.3 EDS prisoners who are eligible to be considered for discretionary release at the two thirds point of their custodial term and DCR prisoners transferred to hospital under section 47/49 of the Mental Health Act 1983 are not eligible for review by the Parole Board while they continue to require treatment in hospital for their mental disorder. However, if the prisoner is parole eligible and the Secretary of State for Justice is satisfied on the advice of the Responsible Clinician (RC) or the First Tier Tribunal (Mental Health) that he/she no longer requires treatment in hospital (or no effective treatment can be given), but that return to prison would not be appropriate, a parole application may be made. PPCS liaises directly with MHCS, in such cases and there is no formal role in the review for the prison, although if there are likely to be old reports (sentence planning documents etc) available PPCS will request them. However, if such a prisoner is transferred to hospital on a long-term basis, OMU Staff must inform PPCS to ensure that the Public Protection Unit Database (PPUD) is updated. This will ensure that information is available should PPCS require it later.

2.4 PPCS identify from PPUD those transferred prisoners who have been found fit enough to leave hospital but not to return to prison. The PPCS case manager must check for any existing papers. The responsibility for preparing papers for the Parole Board and referring the case to the Board rests with PPCS, rather than the last establishment which held the prisoner.

2.5 The following documents should be available from PPUD: - police report; - previous convictions; - any probation reports prepared for the court; - papers showing progress in hospital (e.g. medical reports which show attitude to the offence and how that has altered); - any reports from doctors or social workers about suitability for discharge (these will have been prepared for the First tier Tribunal (Mental Health).

2.6 The establishment which last held the prisoner must also be asked to supply copies of any sentence planning documents which may have been completed before transfer.

2.7 Prisoners cannot opt out of the parole process. If a prisoner subsequently refuses to comply with the process, this cannot be regarded as an opt-out of the parole process. The dossier should be compiled in the normal way, with reports completed as far as report writers are able.

2.8 The PPCS case manager must identify the Offender Manager and ask for an up-to-date report in the normal way. This officer should have maintained contact with the prisoner during the sentence. If no Offender Manager has been allocated, contact must be made with the probation service local to the hospital.

2.9 Once the dossier has been collated, it must be sent to the prisoner for disclosure and to give him/her an opportunity to make representations. If the Offender Manager is not local to the hospital, it may be possible to enlist the help of the hospital social worker in explaining the dossier to the prisoner. The disclosure form will need to be adapted in every case to reflect the documents which are available. An example is attached at Annex A.

2.10 Once disclosure has taken place, the case must be formally referred to the Parole Board. DCR prisoners are referred under paragraph 6 of Schedule 20B of the 2003 Act (formerly Criminal Justice Act 1991) for those sentenced on or after 1 October 1992, for offences committed prior to 4 April 2005, to a term of imprisonment of four years or more where the offence is listed in Schedule 15 of the 2003 Act or where the PED fell before 9 June 2008. This includes multiple sentences of less than 12 months imposed before 3 December 2012 which total 4 years or more. EDS prisoners are referred to the Parole Board under Section 246A of the 2003 Act (as inserted by section 125 of the LASPOA12). The Board will process these cases in the normal way.

2.11 In view of the nature of the cases, the Parole Board should send all decisions to PPCS. All notifications relating to transferred cases must be sent from PPCS and in cases where a negative decision has been reached, the date when the next review should begin. PPCS should also be informed of any changes in the prisoner’s circumstances. DCR prisoners and EDS prisoners must be released on licence in line with PSI 40/2012. PPCS is responsible for issuing these parole licences.

Discretionary Conditional Release and Extended Determinate Sentenced prisoners returned from hospital to prison

2.12 If a DCR prisoner or an EDS prisoner eligible to be considered for conditional release at the two thirds point of their custodial term is returned from hospital to prison before they have reached the point six months prior to their PED, their parole review should commence in accordance with the normal timetable for such cases. For those prisoners returned from hospital to prison and whose PED has passed or a parole review should have already commenced, OMU Staff must consult PPCS ([email protected]) in order for a review to be inserted onto PPUD which will commence from the date of the prisoner’s return to prison.

Recall of prisoners transferred from prison to hospital under the Mental Health Act

2.13 A prisoner who is currently detained in hospital under the Mental Health Act and who would otherwise be subject to licensed supervision is not liable to recall. At the point at which the prisoner is discharged from hospital on licence he/she immediately becomes liable to recall. It is also possible in certain circumstances to revoke the licence on the grounds of

behaviour whilst the prisoner was in hospital. However, before such a recall is agreed the case should be referred to the Head of Post Release in PPCS.

2.14 A prisoner who has been released from custody on supervision licence, and is subsequently detained, or ‘sectioned’ under the Mental Health Act 1983, and is in hospital, may still be considered for recall if there are sufficient reasons to do so. However, in these circumstances, the fact that the prisoner is already detained in hospital should be noted and is normally referred to in the Offender Manager’s breach report. This enables PPCS to consider simultaneously seeking the issue of a Section 47 transfer direction from the Governor of the release prison, which enables the prisoner to remain in hospital, while being considered as ‘in custody’ for the purposes of recall.

Non-Parole Licences

2.15 For DCR prisoners and EDS prisoners eligible for consideration for discretionary release, it is not practical to expect prisons to maintain contact over what could be a very lengthy period and to take on the responsibility for liaising with the Probation Service and issuing the licence. The task of issuing DCR and EDS non-parole licences to transferred prisoners is therefore the responsibility of PPCS.

2.16 If the prisoner is not to be returned to prison, PPCS will identify from PPUD those transferred prisoners approaching the end of his/her custodial sentence three months before restrictions cease. MHCS will at the same time write to the relevant Probation Service CEO to remind him/her of the statutory duty to supervise the patient. In addition, to assist the identification of relevant prisoners, OMU Staff must notify PPCS of any DCR prisoners and EDS prisoners eligible for discretionary release transferred to hospital within six months of their NPD/expiry of their custodial term.

2.17 When notification is received in PPCS, a check must be made for any existing papers on the prisoner (who may have been transferred after a parole review). If no background information is available, details of the offence etc. may be available on PPUD or papers may still be available in the prison which last held the prisoner. These must be obtained.

2.18 The PPCS case manager must identify the Offender Manager and discuss with him/her the need for any additional licence conditions. The imposition of additional medical conditions must only be considered after discussion with the supervising psychiatrist, either directly or through the Offender Manager. If any additional conditions are proposed, these must be approved in accordance with the guidelines set out in PSI 40/2012.

2.19 Once conditions have been agreed, the PPCS case manager must liaise with the Offender Manager and hospital about serving the licence. It must be signed, at least, at Band 4/5 level in the Section before being sent out. If the Offender Manager is not local to the hospital, a social worker there may agree to serve the licence. A signed copy must be returned to the Section and copies sent (by the Section) to the National Identification Service (NIS) New Scotland Yard and the Chief Constable of the area to which the prisoner is being released in the normal way.

Notifications to the Police

2.20 PPCS and/or the Offender Manager will provide a copy of the licence to the National Identification Service (NIS) New Scotland Yard and the Chief Constable of the area to which the prisoner is being released.

Annex A

FIRST TIER TRIBUNAL (MENTAL HEALTH) DISCLOSURE FORM / PRISONER'S REPRESENTATIONS

This form must be issued to the prisoner at the same time that the parole dossier is disclosed.

Prisoner's Name......

Parole Review No...... Prison No......

Parole Ref......

PED...... NPD......

Your application for early release on licence is to be considered by the Parole Board and a member of the Board may visit you to interview you. A copy of your parole dossier has been made available to you and this form allows you to make any comments on the contents of your dossier and also give any other information about your application that you feel the Parole Board should have.

The following reports have been disclosed to you:

Statement by the Secretary of State: Circumstances of Offence Pre-sentence probation report (if applicable) Pre-sentence psychiatric report (if applicable) Court transcription of sentencing remarks (for sentences after 1.1.97) Previous convictions (if applicable) Statement by Responsible Authority to the First Tier Tribunal (Mental Health) Admission summary Annual Report Report of Section 117 meeting (if applicable) Social work reports Nursing progress report Psychiatric reports First Tier Tribunal (Mental Health) (if applicable) Parole Assessment Report Copies of previous parole papers (if applicable) If available, Victim Personal Statement Other......

The Parole Board has/has not been given additional information which has been withheld from you in accordance with guidance issued by the Secretary of State. You have no right to see this information and no grounds for appeal to the Parole Board or Prison Service. Please sign to indicate that disclosure has taken place.

Signed...... Date......

I have no comments on the reports I have seen / My comments are as follows

If there is any other information which you feel the Parole Board should have when considering your case, please record it here (continue on a separate sheet if necessary). The Board will have to decide whether your early release on licence would put the public at risk, whether you are likely to commit any further offences and what the chances of you returning to society to lead a law- abiding life will be.

Signed......

Name (Caps)......

Date......

PSI 18/2013 – PI 08/2013 UNCLASSIFIED ISSUE DATE 17/09/2013 UNCLASSIFIED EIA PAGE 1

EQUALITY IMPACT ASSESSMENT

PSI 18/ 2013 - DETERMINATE SENTENCED PRISONERS TRANSFERRED UNDER THE MENTAL HEALTH ACT 1983

Stage 1 – initial screening

The first stage of conducting an EIA is to screen the policy to determine its relevance to the various equalities issues. This will indicate whether or not a full impact assessment is required and which issues should be considered in it. The equalities issues that you should consider in completing this screening are:  Race  Gender  Gender identity  Disability  Religion or belief  Sexual orientation  Age (including younger and older offenders).

Aims What are the aims of the policy?

The aim of this new PSI is to replace chapter 11 from PSO 6000 (Parole Release and Recall) on prisoners transferred under the Mental Health Act 1983. This large and wide ranging PSO is being replaced in its entirety by a number of separate PSIs on each policy area. Until it was decided to replace this PSO, there were no immediate plans to update this particular policy area because there were no significant developments, despite it not being formally updated since the introduction of the PSO a number of years ago. The decision to replace PSO 6000 completely was taken in light of all the changes introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA12).

The changes to this policy are minor in nature such as naming conventions and reference to the new Extended Determinate Sentence (EDS) which was introduced by LASPOA12.

In summary, prisoners may be transferred from prison to hospital under the Mental Health Act1983 (MHA) at any point in the sentence. This instruction is intended to ensure that all staff are fully aware of their role and the process to be followed in these determinate cases, including their referral to the Parole Board where appropriate and subsequent release on licence.

Effects What effects will the policy have on staff, offenders or other stakeholders? The policy, with its small changes, will update staff in establishments, Probation Trusts, NOMS Headquarters (PPCS and MHCS) on the process involved with managing determinate prisoners transferred under the Mental Act 1983.

Evidence Is there any existing evidence of this policy area being relevant to any equalities issue? Identify existing sources of information about the operation and outcomes of the policy, such as operational feedback (including local monitoring and impact assessments)/Inspectorate and other relevant reports/complaints and litigation/relevant research publications etc. Does any of this evidence point towards relevance to any of the equalities issues? No. Those that are affected are all those determinate prisoners transferred under the Mental Health Act 1983.

Stakeholders and feedback Describe the target group for the policy and list any other interested parties. What contact have you had with these groups? The target group is Public Protection Casework Section (PPCS) staff, MHCS staff, Prison staff in Offender Management Units and Probation Trust staff. Interested parties are the Parole Board.

The draft policy instruction has been circulated within PPCS, MHCS, Security Group, Young People’s Group, Performance Analysis Group and the Commissioning Support Unit. The instruction has also been sent to Offender Health Commissioning with feedback received.

Do you have any feedback from stakeholders, particularly from groups representative of the various issues, that this policy is relevant to them? Feedback has been received from those consulted as detailed above and has been taken into account.

Impact Could the policy have a differential impact on staff, prisoners, visitors or other stakeholders on the basis of any of the equalities issues? No, the policy covers all determinate prisoners transferred under the Mental Health Act 1983.

Local discretion Does the policy allow local discretion in the way in which it is implemented? If so, what safeguards are there to prevent inconsistent outcomes and/or differential treatment of different groups of people? No, the policy covers all determinate prisoners transferred under the Mental Health Act 1983 and provides clear mandatory instructions.

Summary of relevance to equalities issues

Strand Yes/No Rationale

No Race No Gender (including

Strand Yes/No Rationale

gender identity) No Disability No Religion or belief No Sexual orientation No Age (younger offenders) No Age (older offenders)

If you have answered ‘Yes’ to any of the equalities issues, a full impact assessment must be completed. Please proceed to STAGE 2 of the document.

If you have answered ‘No’ to all of the equalities issues, a full impact assessment will not be required, and this assessment can be signed off at this stage. You will, however, need to put in place monitoring arrangements to ensure that any future impact on any of the equalities issues is identified.

Monitoring and review arrangements Describe the systems that you are putting in place to manage the policy and to monitor its operation and outcomes in terms of the various equalities issues. The instruction provides mandatory actions for Governors, PPCS and MHCS to ensure the policy is appropriately carried out.

State when a review will take place and how it will be conducted. PPCS will work with MHCS to monitor policy development and ensure a review takes place as appropriate.

Name and signature Date Russell A’Court 15/04/2013 Policy lead

Gordon Davison 16/04/2013 Head of group

PSI 18/2013 – PI 08/2013 UNCLASSIFIED ISSUE DATE 08/07/2013