Discharges in criminal casescontinued:s145(1)
Introduction
19.79Mental patients who are detained in hospital as a result of a criminal conviction may be:
•ordinary restricted patients (under section 79), who are subject to a restriction order (under section 41); or
•restricted patients (under section 79), who are more serious offenders and are subject to a limitation direction (under section 145(1)), a restriction direction (under section 49) or a transfer direction (under section 48).
19.80In the latter case, of restricted patients who are subject to a limitation direction or restriction direction, or a transfer direction:
•these patients are liable to continue to serve sentences of imprisonment if they no longer require hospital treatment;
•accordingly, the function of the tribunals is to notify the Secretary of State, after the conclusion of the hearing, whether in their opinion the patient would be entitled to an absolute or conditional discharge, if the patient was an ordinary restricted patient: section 74(1) of the MHA 1983;
•if the conclusion is that the patient would be entitled to conditional discharge, the tribunal may recommend that, if the patient is not discharged, the patient should remain in hospital and not be transferred to prison: section 74(1);
•in the case of sentenced prisoners, subject to hospital and limitation directions, or a restricted transfer direction, the Secretary of State has a discretion whether to consent to the patient’s discharge: section 74;
•if the patient has already served their minimum tariff, they are entitled to apply to the Parole Board for release in the same way as other prisoners and, if the Secretary of State refuses to consent to their discharge under section 74, he or she will automatically refer the case to the Parole Board.
Conditional discharges
19.81The cases of ordinary restricted patients are dealt with by the tribunals under section 73 of the MHA 1983, under which patients may be ‘absolutely discharged’ or ‘conditionally discharged’.
19.82In the case of restricted patients, the tribunal has no general discretion to direct discharge, but must direct the absolute discharge of a patient where:
•the tribunal is not satisfied that:
•the patient is then suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him or her to be liable to be detained in hospital for medical treatment; or that
•it is necessary for the health or safety of the patient or for the protection of other persons that he or she should receive such treatment; or that
•appropriate medical treatment is available for him or her;
•and the tribunal is satisfied that it is not appropriate for the patient to be liable to be recalled to hospital for further treatment:
section 73(1).
19.83The tribunal has no general discretion to direct the conditional discharge of a restricted patient, but must so direct where the tribunal is not satisfied that:
•the patient is then suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him or her to be liable to be detained in hospital for medical treatment; or that
•it is necessary for the health or safety of the patient or for the protection of other persons that he or she should receive such treatment; or that
•appropriate medical treatment is available for him or her;
•but are also not satisfied that it is not appropriate for the patient to be liable to be recalled to hospital for further treatment:
section 73(1) and (2).
19.84The tribunal ‘may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to its satisfaction …’ (section 72(7)).
19.85All of this creates a flexible regime enabling the tribunal to ensure that a patient is only discharged when conditions in the community will be suitable, and to maintain residual control over patients.
1R v Merseyside Mental Health Review Tribunal ex p K [1990] 1 All ER 694; R (H) v Secretary of State for the Home Department [2002] EWCA Civ 646, [2003] QB 320.19.86Conditions usually require the restricted patient to reside in a particular place, to accept a certain level of supervision and to undergo a defined level of treatment. Having said that, there is no limit on the conditions that may be imposed, other than that:
•they must be relevant, rational, capable of being fulfilled and for a proper purpose that is consistent with the legislation;
2R (SH) v Mental Health Review Tribunal [2007] EWHC 884 (Admin), [2007] MHLR 234.and
•they must not result in the patient continuing to be deprived of liberty in hospital, or elsewhere;
3Secretary of State for Justice v RB [2011] EWCA Civ 1608, [2012] 1 WLR 2043. •they must not be such as to, in effect, make the discharge conditional on the agreement of some other body, such as the Ministry of Justice.
4R (Secretary of State for the Home Department) v Mental Health Review Tribunal [2007] EWHC 2224 (Admin), [2008] MHLR 212. 19.87Conditionally discharged patients are not subject to the compulsory treatment provisions in Part 4 of the MHA 1983 so, if the patient does not comply with conditions relating to treatment, the only remedy is recall to hospital.
5R (SH) v Mental Health Review Tribunal [2007] EWHC 884 (Admin), [2007] MHLR 234.19.88The purpose of a conditional discharge is to make the restricted patient liable to be recalled to hospital detention, by the Secretary of State, if any of the conditions are broken: section 73(4). This seems primarily designed to protect the public, but the regime is also supportive of the patient and protective of the patient.
6R v Merseyside Mental Health Review Tribunal ex p K [1990] 1 All ER 694; R (H) v Secretary of State for the Home Department [2002] EWCA Civ 646, [2003] QB 320.19.89The Secretary of State will monitor the conditionally discharged patient in the community and has power to vary the conditions, under section 73(5).
19.90Where a restricted patient is no longer mentally disordered:
7R (H) v Secretary of State for the Home Department [2003] UKHL 59, [2004] 2 AC 253, (2004) 7 CCLR 147.•their conditional (but not absolute) discharge may be deferred for a reasonable, limited period; however,
•ultimately, they must be discharged, whether or not the authorities have been able to put in place arrangements relevant to the conditions that the tribunal wanted to attach to the discharge; although
•the discharge may be absolute, or conditional (so as to make the patient subject to the power of recall).
19.91Where the restricted patient remains mentally disordered:
8R (H) v Secretary of State for the Home Department [2003] UKHL 59, [2004] 2 AC 253, (2004) 7 CCLR 147.•their discharge may be deferred for a reasonable period, and their detention will remain lawful, while the authorities make efforts to arrange community services;
•if, however, the tribunal’s view is that such services are not an essential precondition of discharge, the patient must be discharged whether or not those services are put in place.
19.92Where the patient remains mentally disordered but the tribunal determines that the criteria for conditional discharge are met,
providing that the authorities arrange specified community services then:
9R (H) v Secretary of State for the Home Department [2003] UKHL 59, [2004] 2 AC 253, (2004) 7 CCLR 147.•the tribunal should defer directing a conditional discharge whilst the authorities responsible for after-care endeavour to make arrangements for the provision of the necessary services;
•the tribunal should keep the situation under review by means of adjournments and directions;
•the after-care authorities are under a duty of best endeavour and not an absolute duty to provide services that match the tribunal’s conditions;
•if the after-care authorities do not use their best endeavours they will be susceptible to judicial review;
•if, however, they cannot provide the services that the tribunal considers to be a necessary precondition of discharge then, in principle, the patient will remain lawfully detained;
•for example (a recurrent theme), after-care authorities cannot compel psychiatrists to act contrary to their conscientious professional judgment so that, for example, where discharge is conditional on psychiatric supervision in the community, but no psychiatrist is willing to undertake such supervision because in their judgment the risks are too great, the after-care authorities cannot compel a psychiatrist to undertake supervision and that proposed condition will remain unfulfilled;
•if difficulties arise the tribunal may (i) continue to defer and impose directions or give advice; (ii) amend or vary its proposed conditions to seek to overcome any difficulties; (iii) order a conditional discharge without specific conditions, thereby making the patient simply subject to recall; or (iv) decide that the patient should remain detained in hospital for treatment;
•patients must not be left in limbo in case there is a breach of Article 5(4) ECHR (the right to a regular review of the lawfulness of detention): the tribunal must ensure that it keeps the situation under review in the light of any changes in the patient’s condition and/or any difficulties implementing its conditions.
19.93Applications concerning conditionally discharged restricted patients are made under section 75 of the MHA 1983, under which provision the tribunal can, among other things, vary conditions or absolutely discharge the patient.
10For the process and criteria, see R (SC) v Mental Health Review Tribunal [2005] EWHC 17 (Admin), (2005) MHLR 31.