Discharges from detentioncontinued: Pt 1, para 8
19.54For present purposes, one can divide detained patients into three broad categories: unrestricted patients, patients who are subject to restriction orders, and patients who are subject to restriction or limitation directions.
Unrestricted patients
19.55Within this category are Part II patients who are detained under sections 2 or 3, and unrestricted Part III patients (ie those who have been made subject to a hospital order under section 37, but not to a restriction order under section 41; or prisoners transferred by the Secretary of State for Justice to hospital under sections 47 or 48 but who have not also been made subject to a restriction direction under section 49). Transferred prisoners with determinate sentences who remain in hospital after expiry of their restrictions will become unrestricted patients, commonly referred to as ‘notional’ section 37 patients.
19.56There are other compulsory powers in Part II which include: guardianship (sections 7 and 8); supervised community treatment (sections 17A ff); short-term holding powers (sections 4 and 5).
19.57In all of these cases, the Secretary of State for Justice has no statutory role.
19.58Under section 23, a Part II patient detained under section 2 or 3 may be discharged without the need for a tribunal hearing by their nearest relative, responsible clinician or the hospital managers. An unrestricted Part III patient may be discharged by the responsible clinician or the hospital managers, again under section 23, which is modified for this type of patient by paragraph 8 of Part 1 of Schedule 1 to the 1983 Act.
19.59Similarly under section 23, patients subject to guardianship may be discharged by the responsible clinician, the local social services authority, or the nearest relative. Patients subject to supervised community treatment may be discharged by the responsible clinician, the hospital managers, or the nearest relative.
19.60In the case of patients in this category, under section 72 of the MHA 1983, the First-tier Tribunal has a discretion to direct discharge, and a duty to direct discharge if certain criteria for lawful detention are not satisfied.
Patients subject to restriction orders
19.61Within this category of patients are those who have who have been made subject to a hospital order under section 37 with a restriction order under section 41. In these cases, the Secretary of State for Justice has a statutory role. There is also a range of interim powers to send people involved in criminal proceedings to hospital, under sections 35, 36 and 38. However, the Secretary of State for Justice does not have a statutory role in respect of these patients.
19.62Under section 23 as modified by paragraph 7 of Part II of Schedule 2 to the 1983 Act, the responsible clinician and the hospital managers may discharge these patients, but only with the consent of the Secretary of State. The Secretary of State has his/her own powers of discharge, including absolute or conditional discharge, and recall (from conditional discharge) under section 42. Under section 42(1), the Secretary of State also has the power to lift the restriction order if satisfied that it is no longer required to protect the public from serious harm.
19.63The First-tier Tribunal has no general discretion to direct discharge in these cases, but under section 73 it must do so when certain criteria for lawful detention are not satisfied. The discharge may be absolute or conditional.
19.64A patient who has already been conditionally discharged may be absolutely discharged by the First-tier Tribunal under section 75.
Patients subject to restriction and limitation directions
19.65Within this category of patients are those who have been made subject to hospital and limitation directions under section 45A, and those who have been transferred from prison to hospital under sections 47 or 48 and have additionally made subject to restriction direction under section 49.
19.66The Secretary of State has the same powers under section 42 as above. In addition, under section 50, the Secretary of State may direct that the patient be remitted to prison (or the institution in which the patient would have otherwise been detained – such as immigration detention) where he or she is notified by the responsible clinician that that there is no further need or purpose for detention in hospital.
19.67However, as mentioned in paragraph 5 above, if a patient remains detained in hospital beyond the date of the expiry of their sentence, the restriction or limitation direction ceases to have effect, but they remain lawfully detained in hospital as if, on the sentence expiry date, they had been made the subject to a section 37 hospital order without restrictions. The statutory mechanism for this process is convoluted, but the result is that the patient becomes what is often called a ‘notional section 37’ patient, and would fall into the first category above. This does not apply to indeterminate sentence prisoners, because they do not have a sentence expiry date.
19.68While the restriction or limitation direction applies, the First-tier Tribunal cannot direct discharge, but under section 74 it must decide whether it would have granted an absolute or conditional discharge, had section 73 applied, ie had the patient been subject to a hospital order under section 37 and a restriction order under section 41.
19.69Where the tribunal decides the patient would have been entitled to conditional discharge, it may also recommend that if the patient is not discharged as a result (see below), they should remain in hospital rather than be remitted to prison. That is what happened in the appellant’s case.
19.70Additionally, if the tribunal decides that it would have directed discharge, the Secretary of State has a discretion under section 74(2)(b) to notify the tribunal that the patient can be so discharged. The Secretary of State considers such cases and decides whether there are exceptional circumstances that would indicate the exercise of the discretion is appropriate. More usually in the case of indeterminate sentence prisoners, the result of a tribunal notification of a patient’s entitlement to discharge, along with a recommendation that they remain detained in hospital rather than be remitted, is that the patient’s case is brought before the Parole Board to consider release from the sentence under section 28 of the Crime (Sentences) Act 1997.
Applications and references to the tribunal
Applications
19.71Section 66 governs the right of unrestricted patients and in some cases their nearest relative to apply to the First-tier Tribunal. The right to apply, and the frequency with which applications may be made, is determined by reference to the particular compulsory power to which they are subject.
19.72Section 70 governs the right of all restricted patients to apply to the First-tier Tribunal. That includes patients subject to restriction orders, restriction directions, and limitation directions, although section 69(2)(b) provides an additional initial right to apply to the tribunal for patients who are made subject to a restricted transfer direction.
References
19.73The 1983 Act requires the case of every detained patient to be brought before the tribunal, even where a patient has never sought a tribunal hearing. This is achieved by requirements for patients’ cases to be referred to the tribunal after certain intervals.
19.74Under sections 67 and 71 the Secretary of State has a discretion to refer any patient’s case to the First-tier Tribunal at any time.
19.75If a patient does not apply to the tribunal within certain time periods, then their case must be referred to the tribunal. In the case of unrestricted patients, the reference must be made by the hospital managers under section 68; in the case of restricted patients, the reference must be made by the Secretary of State under section 71.
Tribunals’ lack of power
19.76The Tribunals have no power to determine:
•whether the initial admission was lawful; or
•whether the hospital is suitable in terms of its level of security, the treatment available, its proximity to family members and so forth;
1Re S (Care Plan) [2002] UKHL 10, [2002] 2 AC 291.although the tribunal can make recommendations about such matters, under section 72(3).
Mental Health Act 1983 s72
19.77The main statutory power of discharge by the tribunal is at section 72 of the MHA 1983 (section 73 addresses the absolute or conditional discharge of restricted patients), the main provisions of which require the tribunal to focus on what the consequences of a discharge would be, and are as follows:
Powers of tribunals
72(1) Where application is made to the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act or is a community patient, the tribunal may in any case direct that the patient be discharged, and–
(a)the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if it is not satisfied–
(i)that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or(ii)that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons;
(b)the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied–
(i)that he is then suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or(ii)that it is necessary for the health of safety of the patient or for the protection of other persons that he should receive such treatment; or(iia) that appropriate medical treatment is available for him; or(iii)in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself …
(1A) In determining whether the criterion in subsection (1)(c)(iii) above is met, the tribunal shall, in particular, consider, having regard to the patient’s history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient’s condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).
(2)…
(3)A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal does not direct the discharge of a patient under that subsection the tribunal may–
(a)with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and
(b)further consider his case in the event of any such recommendation not being complied with.
(3A) Subsection (1) above does not require a tribunal to direct the discharge of a patient just because it thinks it might be appropriate for the patient to be discharged (subject to the possibility of recall) under a community treatment order; and a tribunal–
(a)may recommend that the responsible clinician consider whether to make a community treatment order; and
(b)may (but need not) further consider the patient’s case if the responsible clinician does not make an order.
19.78As far as concerns the operation of section 72:
•the burden of proof is on the detaining authority;
2R (N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] 4 All ER 194. •the tribunal must direct discharge if they are not satisfied as to any of the criteria in section 72(1)(a) (in the case of section 2 patients) or section 72(1)(b) (in the case of section 3 patients);
•the burden of proof is the civil standard of balance of probabilities, flexibly applied, but no more than cogent evidence accepted as correct is needed to justify continued detention;
3R (H) v Mental Health Review Tribunal, North and East London Region [2000] MHLR 242; Re D [2008] UKHL 33, [2008] 1 WLR 1499. •whilst the discharge criteria in section 72 mirror the admission criteria in section 3, the question is not simply whether the patient would be detained under section 3, as at the date of the tribunal hearing (since, as a patient, they will be receiving medication and care in hospital) but whether discharge into the community will result in a likelihood of the patient not complying with treatment or, for whatever reasons, deteriorating so that the criteria for discharge are not met;
4R (N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] 4 All ER 194; Re D [2008] UKHL 33, [2008] 1 WLR 1499. •it is usually essential that the tribunal has evidence of what after-care services will be in place and, otherwise, what the patient’s circumstances will be, relevant to future risks. If there is uncertainty, the tribunal should adjourn with directions,
5R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923, [2003] 1 WLR 127.although that is not an absolute rule;
6M v West London Mental Health NHS Trust [2013] EWCA Civ 1010. •the power of deferral can be used when it is clear that satisfactory after-care will be provided, but time is needed to put them in place;
7R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923, [2003] 1 WLR 127. •as noted above, at para 19.7, where a patient is taking medication and is a-symptomatic, their mental disorder will not be of a ‘
degree’ that warrants hospital treatment, but it could be of a ‘
nature’ that requires hospital treatment and detention for that purpose if, without hospital treatment and detention the patient is likely to cease taking medication, deteriorate and become a risk to himself or others;
8R (H) v Mental Health Review Tribunal, North and North East London Region [2001] EWCA Civ 415, (2001) 4 CCLR 119; R (Secretary of State for the Home Department) v Mental Health Review Tribunal [2002] EWHC 1128 (Admin), [2002] MHLR 241. •the tribunal has to weigh the interests of the patient against those of the public and determine whether detention is proportionate to the risks involved to the public (and, in some cases, to the patient).
9R (H) v Mental Health Review Tribunal, North and North East London Region [2001] EWCA Civ 415, (2001) 4 CCLR 119; R (Secretary of State for the Home Department) v Mental Health Review Tribunal [2002] EWHC 1128 (Admin), [2002] MHLR 241; Smirek v Williams [2000] EWCA Civ 3025, [2000] MHLR 38.