Prisoners and other detainees who become acutely mentally unwell in prison or another place of detention, such as an immigration removal centre or youth detention accommodation, can be transferred to hospital for treatment under sections 47 and 48 of the 1983 Act. Section 36 makes two minor changes to how these provisions operate.
	Part of the detention criteria in the 1983 Act provides that appropriate treatment must be ‘available’ for the patient. Owing to the specialised provision and security requirements relating to Part 3 patients, the case of ASK (see the case of R (ASK) v Secretary of State for the Home Department [2019] EWCA Civ 1239) held that, in order to exercise the power to make a transfer direction in sections 47 and 48 of the 1983 Act, the detention criteria required, not simply that treatment for the patient's condition is treatable in the sense of hypothetically available, but that it is available in practice, i.e. that a hospital place has in fact been identified.
	The requirement to ensure that a hospital place has been identified before the detention criteria is considered to have been met risks denying access to treatment for those who need it by inadvertently suppressing referrals. Therefore, in order to effectively introduce the new transfer time limit at section 37, it is necessary to change the threshold as set out in ASK in relation to transfer directions, so that the statutory detention criteria which are the precedent to a transfer direction can still be met, even where no hospital place has yet been identified for the patient.
	Section 36 subsection (2) makes a drafting adjustment to section 47 to clarify this for those serving sentences of imprisonment and section 36 subsection (3)(a) makes the same adjustment to section 48 to clarify this for all other prisoners and detainees.
	Section 36 subsection (3)(b) makes an amendment to section 48(2) of the 1983 Act to include an updated list of immigration legislation by which an individual may be detained, ensuring these detainees can also be made subject to a section 48 transfer where they become acutely mentally unwell.
Patients concerned in criminal proceedings or under sentence Section 36: Transfers from prison to hospital: conditions