Ian Brady: How do prisoners get to and leave high security psychiatric hospitals?

This week Moors murderer Ian Brady is appearing at a Mental Health Tribunal arguing for his transfer back to prison.

The 75 year old and his partner, Myra Hindley, tortured and murdered five children, aged 10 to 17, between July 1963 and October 1965, burying some of their victims’ bodies on Saddleworth Moor, near Manchester. They were both sentenced to life in prison.

In November 1985 Brady was transferred from prison to Ashworth maximum-security hospital after being diagnosed a psychopath.

He has been on hunger strike since 1999 and is force fed through a tube. As he is detained under the Mental Health Act 1983 he can fed against his wishes. He wants to be returned to prison where he can then refuse food and die.

To be transferred he will have to convince the Tribunal that he no longer has a mental disorder.

So how exactly do prisoners get to and leave high security psychiatric hospitals?

Transferring Prisoners to Psychiatric Hospitals

Where an individual is serving a sentence of imprisonment and the Secretary of State for Justice is satisfied, by reports from at least two registered medical practitioners, that the prisoner is suffering from a mental disorder to an extent that make its appropriate for them to receive treatment in hospital and that appropriate treatment is available for them, then the Secretary of State can direct that the prisoner is transferred to hospital from prison. This is called a ‘transfer direction’ and is made under section 47 of the Mental Health Act 1983.

The Secretary of State can also add a ‘restriction direction’ to the transfer direction if they think it is suitable (under section 49 of the 1983 Act). This basically means that only the Secretary of State can approve the release of the prisoner. A restriction direction was made in the case of Brady.

Applications by prisoners

So how can a prisoner apply to be returned to prison? Under section 70 of the Act, a prisoner can apply to the Mental Health Tribunal after six months of being in hospital and may then apply once a year thereafter.

Return to Prison

Under section 50 of the Act, if the Mental Health Tribunal (or another authorised person) notifies the Secretary of State that the prisoner no longer requires treatment or there is no effective treatment, the Secretary of State may order the transfer of the prisoner back to prison. However, the decision remains with the Secretary of State.

Application to Brady

Brady is arguing that he no longer requires treatment; indeed he is arguing that he faked psychotic episodes. If he succeeds the Mental Health Tribunal will notify the Justice Secretary, who will then decide whether to return Brady to prison. However, the Justice Secretary could decide not to transfer Brady.

If Brady is transferred he can then, theoretically, refuse food and die. English law provides that a capable adult can refuse medical treatment (which includes force feeding) even if it leads to their death. This principle is set out in the case of Re C (Adult)(Refusal of Treatment) [1994] 1 WLR 290.

Conclusion

It is vital to remember that the Mental Health Tribunal will not consider Brady’s crimes. It will not examine whether it is right to allow a convicted murderer to refuse food and die. It is simply considering whether Brady still requires treatment in hospital. The Justice Secretary, however, might well be considering this issue. After all, it remains his decision to return Brady to prison, even if the Mental Health Tribunal agrees Brady no longer needs to be in hospital.

It will be interesting to see what the outcome is.