The Government has announced that it is laying regulations before Parliament which would remove entitlement to certain state benefits from some offenders detained in hospital under criminal provisions of mental health legislation. The announcement was made by Pat McFadden, Secretary of State for Work and Pensions, in the Written Ministerial Statement Entitlement for Offenders Detained in Hospital.

According to the Government, the proposed regulations will remove entitlement to Universal Credit, Employment and Support Allowance, State Pension and Pension Credit for individuals convicted of specified serious offences who are detained pursuant to a section 37 Hospital Order under the Mental Health Act 1983 or the Scottish equivalent.

The Government has stated that the changes are intended to apply only to individuals convicted of specified offences involving death, serious personal injury or sexual harm and will not apply to patients detained under civil provisions of the Mental Health Act or those found unfit to plead.

What Does This Mean for Patients?

A significant number of patients detained under sections 37 and 37/41 currently receive benefits whilst in hospital. Those benefits often provide the only source of funds available to purchase clothing, toiletries, telephone credit, electronic devices, hobby materials and other items which are not routinely provided by hospitals. Benefits can also assist patients in maintaining family relationships and preparing for eventual discharge.

Although the full regulations have not yet been published, it appears likely that some patients detained under section 37 and section 37/41 orders will lose entitlement to benefits if Parliament approves the legislation.

The precise categories of patient affected will not be known until the regulations themselves are available.

No Change For Transferred Prisoners

It is important to note that patients are transferred to hospital from prison under section 47 and 48 Mental Health Act 1983 are already generally excluded from entitlement to Universal Credit whilst serving their sentence and detained in hospital. Under the current Universal Credit Regulations, those serving sentences of imprisonment who are detained in hospital under sections 45A or 47 are already treated as not entitled to Universal Credit.

Accordingly, for many transferred prisoners, these proposals are unlikely to represent a substantial change to their existing benefits position.

Potential Consequences

The practical impact on affected patients will vary considerably.

Some patients may experience difficulties meeting everyday personal expenses whilst hospital. Others may face challenges maintaining contact with relatives and friends where such contact depends on access to telephones, internet services or travel arrangements for family members. For long-term patients, a reduction in personal funds may also affect their ability to purchase items intended to support rehabilitation and recovery.

At the same time, there may be some unintended consequences which could be beneficial for certain patients.

Many section 37 and section 37/42 patients remain in hospital for a number of years. During that time it is not uncommon for substantial savings to accumulate from benefits payments. Those accumulated funds can, in some cases, prevent patients from qualifying financially for civil legal aid or can result in significant legal aid contributions being assessed.

If benefit entitlement is removed, fewer patients may accumulate capital above legal aid eligibility threshold. This may mean that some patients who would previously have been required to make contributions, or who would have exceeded financial eligibility limits, are more likely to qualify for legal aid assistance. Any impact will depend upon the individual's circumstances and the application of the Legal Aid Agency's financial assessment rules.

Awaiting Publication of the Regulations

At the time or writing, the Statutory Instrument itself and the accompanying Explanatory Memorandum have not yet been published. The Written Ministerial Statement provides only a summary of the Government's intentions.

Important questions remain unanswered, including:

• Which offences will be specifically included

• Whether there will be distinctions between restricted and unrestricted patients

• Whether existing claimants will benefit from transitional arrangeemnts

• How the rules will be administered in practice

• Whether there will be any exceptions or review mechanisms

GT Stewart's Mental Health Department is reveling developments closely and will publish a further update once the regulations and supporting documents become available.

Patients and their families who are concerned about the potential impact of these proposals should seek specialist advice regarding their individual circumstances.