In ‘barring order’ cases (see Right to request discharge of s2 or s3 or CTO) the Tribunal, in addition to the usual criteria, must also be satisfied that:
- (iii) … that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself.
It is more difficult to justify continued detention on this ground. Para 32.23 of the MHA Code of Practice states:
This question focuses on the probability of dangerous acts, such as causing serious physical injury or lasting psychological harm, not merely on the patient’s general need for safety and others’ general need for protection.
If a Tribunal happens to follow a barring certificate (as opposed to being held as a result of a nearest relative’s application) then the Tribunal is not obliged to consider dangerousness (R (MH) v Secretary of State for the Department of HealthM).
The hospital managers when reviewing the case following a barring order consider the same issue. The managers will, in almost all circumstances, discharge if not satisfied of the dangerousness criterion (see the Code and R (Huzzey) v Riverside MH TrustM), but retain the discretion not to discharge in exceptional circumstances (R (SR) v Huntercombe Maidenhead Hospital M).