This article is part of the Prison law during the coronavirus pandemic series:

Mental capacity

An imminent announcement is expected in respect of early prison release as a means of easing the pressure on the system. However, it is unclear what the mechanism will be to determine which prisoners are released.

If the process involves the requirement to make some form of application by the prisoner, there will undoubtedly be a number of prisoners who lack the mental capacity to do so. To meet the public sector equality duty contained within section 149 of the Equality Act 2010, the Secretary of State for Justice will need to have due regard to remove or minimise disadvantages to those prisoners with disabilities who are unable to make any application for early release without assistance.

If the process is automatic, it would appear likely that those prisoners who are released will include those who are elderly, disabled or otherwise vulnerable. Again, the mental capacity of these prisoners will need to be considered ahead of automatic release. If there is reason to believe that any prisoner being released lacks capacity to make decisions as to their residence, or to their care and support needs, they ought to be assessed and best interests decisions made in accordance with the Mental Capacity Act 2005.

Mental health

Schedule 7 of the Coronavirus Bill contains a proposed material alteration of sections 47 and 48 of the Mental Health Act 1983 in case where hospital transfer or removal is proposed and consulting two registered medical practitioners is impractical or would involve undesirable delay, then a single medical practitioner may provide the necessary report.

Philip Rule, Head of Public Law, No5 Barristers’ Chambers Chambers

Ian Brownhill, Deputy Head of Public Law, No5 Barristers’ Chambers.

Stuart Withers, Barrister

Benjamin Harrison, Barrister

Avril Rushe, Barrister