Mental Health Tribunal Powers - Unrestricted Patients
| Author | Michael Butler |
| Pages | 161-168 |
Chapter 16
Mental Health Tribunal Powers – Unrestricted Patients
16.1 INTRODUCTION
The powers of the MHT when considering the cases of unrestricted detained patients (section 2, 3, 37, 47 or 48 of the MHA 1983), patients subject to CTOs and those subject to guardianship are set out in section 72, and are considered in this chapter. Generally speaking, the primary question for any MHT exercising these powers is whether the relevant statutory criteria justifying the particular form of restriction (detention, CTO, guardianship) are in place, and whether or not, therefore, it is under a duty to discharge the patient. However, the MHT is also able to decide the timing of any discharge and, as an alternative to discharge from detention, to make recommendations with regard to transfer, leave and discharge onto a CTO.
The powers under section 72 of the MHA 1983 apply whether the MHT is considering the case as a result of an application or a reference. With applications, the powers are generally the same whether the applicant is the patient or the nearest relative, subject to the qualification set out at para 16.6.2.
16.2 DISCRETIONARY POWER OF DISCHARGE
Section 72 of the MHA 1983 provides the MHT with a general discretion to discharge any unrestricted patient. In the case of detained patients and CTO patients, the discretion comes from section 72(1), and in the case of guardianship, from section 72(4). Each subsection provides that the MHT ‘may in any case direct that the patient be discharged’. In practice, the discretion is exercised very rarely, and, almost without exception, if the MHT discharges a patient, it will be because it is required to as a matter of law, not because it chooses to as a matter of discretion. Whether the MHT is required to discharge
162 A Practitioner’s Guide to Mental Health Law
as a matter of law will be determined by the application of the relevant statutory discharge criteria.
16.3 DETAINED PATIENTS
16.3.1 Statutory criteria in cases under section 2 of the Mental Health Act 1983
According to section 72(1)(a) of the MHA 1983, the MHT which considers the case of a patient detained under section 2 must discharge if not satisfied:
(i) that he is then is suffering from mental disorder or mental disorder of a nature or degree which warrants 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.
Comparing these discharge criteria with the admission criteria under section 2 of the MHA 1983, the only difference is that whereas section 2(2)(b) requires an AMHP to be satisfied that a patient ‘ought to be … detained in the interests of his own health or safety or with a view to the protection of other persons’, section 72(1)(a)(ii) requires the MHT to be satisfied that, ‘detention … is justified in the interests of his own health or safety or with a view to the protection of other persons’.
16.3.2 Statutory discharge criteria in cases under sections 3, 37 and 47 of the Mental Health Act 1983
According to section 72(1)(b) of the MHA 1983, the MHT which considers the case of an unrestricted patient detained for treatment (sections 3, 37 and 47) must discharge if 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 hospital for medical treatment; or
(ii) that it is necessary for the health or 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...
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