This type of discharge only applies to restricted patients, whose discharge can only be granted by the Tribunal or, less commonly, the Ministry of Justice.

Discharge by Tribunal

A conditional discharge must be granted where:

• The 's3' criteria for detention are no longer met (i.e. nature/degree/health/safety/others). See s72(1)(b).
• It is appropriate for the patient to remain liable to be recalled to hospital for further treatment. See s73(1)(b).

As the onus is on the detaining authority to satisfy the Tribunal of the former consideration, the actual wording of the Act is slighly more convoluted. See R (H) v MHRT North & East London Region (2001) EWCA Civ 415 and the subsequent Mental Health Act 1983 (Remedial) Order 2001.

If liability to be recalled is not appropriate, an absolute discharge must be granted instead. There is no general discretion in relation to discharge in restricted cases.

Discharge by Ministry of Justice

The Justice Secretary can discharge under s42(2) either absolutely or conditionally. No criteria are set out - the Act says "if he thinks fit" - though obiously similar considerations would apply. A Ministry of Justice discharge would follow a recommendation from the patient's RC, but such discharges are relatively rare.

The conditions

Invariably, conditions are imposed on the patient at the time of discharge (Under s73(4)(b) by the MHRT or under s42(2) by the Ministry of Justice).

Usual conditions include the following, depending on the nature of the case:

• Residence at a particular address, or "as directed by the RMO".
• Co-operation with supervision by a community RMO and a social supervisor.

Other conditions often imposed include:

• Abstinence from illegal drugs and excessive consumption of alcohol
• Urine drug screens
• Compliance with treatment (albeit on a voluntary basis: see R (SH) v MHRT (2007) EWHC 884 (Admin))
• Exclusion zones
• Not to contact victim or victim's family

Deferral

The Tribunal can order that the conditional discharge be deferred until the conditions can be met. See deferred conditional discharge for further details.

Recall

In theory a conditionally discharged patient cannot be recalled simply for breaching a condition (contrast the position of a prisoner out on licence) as, unless in an emergency, there should be up-to-date medical evidence of mental disorder to justify recall. In practice if the RC informed the Ministry of Justice that the patient had breached his conditions and/or that there are concerns about his mental health, the Ministry of Justice would probably recall.

As a statutory safeguard for the patient, within a month of the return to hospital the case must be referred to the MHRT by the Ministry of Justice (s75). This must be done with "reasonable despatch having regard to all the material circumstances" (R (Rayner) v Secretary of State for Justice (2008) EWCA Civ 176). The hearing must be heard between 5 and 8 weeks from the reference (Tribunal rule 37).

See Eligibility periods for entitlement to apply to the Tribunal. See Recall for further details.

Subsequently obtaining an absolute discharge

If the restriction order was time-limited, then the restrictions will cease at the specified time; also, if the patient has determinate sentence, then the restrictions will cease on the release date. If a patient has been conditionally discharged by the time the restrictions cease, then he is automatically absolutely discharged on that date: s42(5)

Any conditionally-discharged patient can apply to the Tribunal for an absolute discharge - not during the first twelve months after conditional discharge; but once in the second 12-month period after conditional discharge; and once in each 2-year period thereafter. The Tribunal could also vary or add to the conditions: s75(2),(3)

External links

From Ministry of Justice website:

• Guidance for Supervising Psychiatrists - Supervision and aftercare of Conditionally Discharged Restricted Patients - 9 February 2004 - "These notes are for the guidance of psychiatrists who take on the role of supervising psychiatrist to a restricted patient subject to a conditional discharge."
• Guidance for Social Supervisors - Supervision and aftercare of Conditionally Discharged Restricted Patients - 14 December 2001 - "These notes are for the guidance of social workers and probation officers."
• Pro-forma for reports on conditionally discharged restricted patients - 30 July 2007