Discharge Powers Provided by Section 23 of the Mental Health Act 1983
| Author | Michael Butler |
| Pages | 177-184 |
Chapter 18
Discharge Powers Provided by Section 23 of the Mental Health Act 1983
18.1 INTRODUCTION
As far as most unrestricted detained patients are concerned, the decision to discharge from detention will not be made by an MHT following an application by the patient or a referral of his case. It will, instead, be made by the patient’s RC, who will discharge the patient once satisfied that the statutory criteria justifying detention are no longer in place. The RC’s power of discharge is created by section 23 of the MHA 1983, and is considered in this chapter, together with similar discharge powers available under section 23 to hospital managers and the patient’s nearest relative.
As well as creating a power to discharge a patient from detention, section 23 of the MHA 1983 also creates the power to discharge a patient from a CTO or guardianship. These powers are considered separately, in Chapters 20 and 21, respectively.
18.2 PATIENTS UNDER PART II OF THE MENTAL HEALTH ACT 1983
18.2.1 Discharge by the responsible clinician
The RC is not bound by any procedural or statutory requirements when exercising the power of discharge. The question of when to discharge is simply a matter for his discretion. Acting as a public body, however, he must exercise the power reasonably and according to public law principles (see R (on the application of Wirral Health Authority and Wirral Borough Council) v Dr Finnegan [2001] EWHC 312 (Admin)).
178 A Practitioner’s Guide to Mental Health Law
The power should be kept under review at all times. In Winterwerp v The Netherlands (Application No 6301/73) [1979] ECHR 4, for example, it was held that for the purposes of Article 5(1) of the ECHR, the lawfulness of continued confinement depends upon the persistence of a true mental disorder. Similarly, in R (on the application of C) v MHRT London South and South West Region [2000] MHLR 220, Crane J noted that the RC ‘has a continuing duty to consider whether the conditions (justifying detention) remain satisfied’, and in R v Drew [2003] UKHL 25, the House of Lords observed that if the medical conditions justifying admission ‘cease to be met at any time, the duty of the [RC], exercising a medical judgment, is to discharge the offender from hospital’.
Applying these principles, the 1983 Code advises (para 29.16) that the RC should make a positive decision to discharge as soon as he concludes that the criteria for detention are no longer met, and ought not to wait for authority for the patient’s detention to lapse. It will, however, be virtually impossible to identify the precise point at which a patient stops meeting the criteria for detention, and the RC, like any detaining authority, is entitled therefore to exercise a ‘measure of discretion’ (see Johnson v UK (1999) 27 EHRR 296).
The RC’s decision to discharge must be put in writing (section 23(1) of the MHA 1983). Regulation 18 of the Mental Health Regulations 2008 provides that the written notice of discharge ‘shall be sent to the managers of the hospital in which the patient is liable to be detained … as soon as practicable after it is made’.
18.2.2 Discharge by the nearest relative
The patient’s nearest relative is also given a discretionary power of discharge by section 23 of the MHA 1983. As with the RC, discharge needs to be in writing (section 23(1)). The nearest relative has a complete discretion as to whether to exercise this power. He is under no obligation to consult with the RC or any other mental health professional before exercising it, and may choose to exercise it against professional advice. He would do well to exercise...
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