Mental Health Tribunal Powers - Restricted Patients
| Author | Michael Butler |
| Pages | 169-176 |
Chapter 17
Mental Health Tribunal Powers – Restricted Patients
17.1 INTRODUCTION
The MHT may be asked to consider the cases of three different types of restricted patient under the MHA 1983: those detained under section 37/41, those subject to a restriction direction or limitation direction under section 47/49, section 48/49 or section 45A, or those who are already conditionally discharged. Different sections of the Act set out the various MHT’s powers available in relation to each type of patient, and are considered in this chapter.
17.2 PATIENTS UNDER SECTION 37/41 OF THE MENTAL HEALTH ACT 1983
The MHT powers in relation to patients under section 37/41 of the MHA 1983 are set out in section 73. It provides no discretionary power to discharge, and the MHT may only therefore discharge a patient under section 37/41 if the detaining authority fails to satisfy it that the statutory criteria for detention are met.
17.2.1 Statutory criteria
Absolute discharge
According to section 73(1) of the MHA 1983, the MHT must direct the absolute discharge of a patient under section 37/41 if (emphasis added):
(a) the tribunal is not satisfied as to the matters mentioned in paragraph
(b)(i), (ii) or (iia) of section 72(1) above; and
(b) the tribunal is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.
170 A Practitioner’s Guide to Mental Health Law
Conditional discharge
According to section 73(2) of the MHA 1983, the MHT must direct the conditional discharge of a patient under section 37/41 if:
(a) paragraph (a) of section 73(1) applies; but
(b) paragraph (b) of section 73(1) does not apply.
Applying these provisions, the MHT must first make a decision on whether the patient should be discharged, according to the criteria which would apply in respect of patients under section 3 of the MHA 1983 (section 73(1)(a)). If the criteria justifying detention remain in place, the patient will remain detained. If not, he will be discharged. If the patient is to be discharged, however, the additional question which the MHT must ask itself is whether discharge should be absolute or conditional. This calls for a judgement on whether the patient, when discharged, should be liable to recall to hospital (section 73(1)(b)). Where it is appropriate for the patient to be liable to recall to hospital, discharge will be conditional; where it is not appropriate, it will be absolute.
The burden is on the detaining authority to show why the patient should not be discharged, and is on the patient to show why discharge should not be conditional. In practice, if the patient is discharged, it will be almost always be conditional, and it would be highly unusual for the MHT to be satisfied that the patient did not need to be liable to recall.
17.2.2 Effect of an absolute discharge
If a patient is absolutely discharged, the hospital and restriction orders cease to have effect immediately and permanently (section 73(3) of the MHA 1983). The patient is no longer subject to the provisions of the Act, the SSJ has no further role to play, and any future engagement with mental health services by the patient will be on a purely voluntary basis.
17.2.3 Effect of a conditional discharge
If a patient is conditionally discharged, he is no longer subject to the hospital order. He does not lose his restricted status, however. Even though discharged from hospital, he remains a restricted patient for as long as the discharge remains conditional. The main consequences are that he must abide by any conditions imposed on him in respect of his care plan and he is liable to recall to hospital.
Duration of a conditional discharge
A conditional discharge is for an indefinite period and will last until a positive decision is taken to bring it to an end. The SSJ may bring the conditional discharge to an end by exercising his discretion to absolutely discharge the patient under section 42(2) of...
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