Mental Health Act 1983
(as amended)

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Law as at 19/11/11

Part II contents

2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 12A, 13, 14, 15, 16, 17, 17A, 17B, 17C, 17D, 17E, 17F, 17G, 18, 19, 19A, 20, 20A, 20B, 21, 21A, 21B, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34

All Parts

I, II, III, IV, 4A, V, VI, VIII, IX, X, Schedules

Overview of the MHA 1983
Plain text for printing
Statute Law Database

This section empowers the Hospital Managers, the Responsible Medical Officer and the Nearest Relative to discharge a patient. The nearest relative's powers are limited by the provisions of s25.

For restricted patients, the person who would be nearest relative has no power of discharge, and all other discharges can only take place with Home Office approval (which in practice is rarely granted). The Home Office has its own powers of discharge (again, rarely used). When a restricted patient is discharged it is usually by the MHRT.

Changes made by Mental Health Act 2007

• Responsible Clinician/Approved Clinician replaces Responsible Medical Officer 3/11/08
• Supervised Community Treatment replaces Supervised Discharge 3/11/08
• NHS Foundation Trusts discharge power problem remedied 24/7/07

Related cases

Any cases with a hyperlink to this legislation will automatically be added here. There may be other relevant cases without a hyperlink, so please check the mental health case law page.

• R (B) v MHRT (2003) EWHC 815 (Admin) — It is lawful to defer discharge in dangerous criterion cases where the deferral is relevant to considerations of dangerousness

• R (Huzzey) v Riverside MH Trust (1998) EWHC Admin 465 — Managers must consider dangerousness criterion when reviewing detention after RMO's barring order, and in almost all circumstances discharge if not satisfied of that criterion.

• R (O) v West London MH NHS Trust (2005) EWHC 604 (Admin) — Hospital managers are under a common law duty to provide both oral and written reasons at the time of the decison; the decision is legally defective if the reasons are inadequate; this defect cannot be cured by later evidence giving a proper explanation of the reasons; the supplementary evidence was more than mere elucidation so was not accepted.

• R (Tagoe-Thompson) v The Hospital Managers of the Park Royal Centre (2003) EWCA Civ 330 — Panel of three hospital managers must be unanimous in order to discharge patient.

See also

• Reference Guide to the Mental Health Act 1983, 12. Detention in hospital, 15. Supervised Community Treatment, 19. Guardianship and guardianship orders — paragraphs 12.101 to 12.122 (detention), 15.104 to 15.119 (SCT), 19.118 to 19.123 (guardianship)
• Mental Health Act 1983 Code Of Practice for England, 25. Supervised community treatment, 26. Guardianship 241, 28. Guardianship, leave of absence or SCT?, 30. Functions of hospital managers, 31. Hospital managers’ discharge power

Law

Discharge of patients

23.—(1) Subject to the provisions of this section and section 25 below, a patient who is for the time being liable to be detained or subject to guardianship under this Part of this Act shall cease to be so liable or subject if an order in writing discharging him [absolutely from detention or guardianship is made in accordance with this section].

[(1A) Subject to the provisions of this section and section 25 below, a community patient shall cease to be liable to recall under this Part of this Act, and the application for admission for treatment cease to have effect, if an order in writing discharging him from such liability is made in accordance with this section.

(1B) An order under subsection (1) or (1A) above shall be referred to in this Act as "an order for discharge".]

(2) An order for discharge may be made in respect of a patient—

(a) where the patient is liable to be detained in a hospital in pursuance of an application for admission for assessment or for treatment by the [responsible clinician], by the managers or by the nearest relative of the patient;

(b) where the patient is subject to guardianship, by the [responsible clinician], by the responsible local social services authority or by the nearest relative of the patient.

[(c) where the patient is a community patient, by the responsible clinician, by the managers of the responsible hospital or by the nearest relative of the patient.]

(3) Where the patient [falls within subsection (3A) below], an order for his discharge may, without prejudice to subsection (2) above, be made by the Secretary of State and, if [arrangements have been made in respect of the patient] under a contract with a [National Health Service trust] [, [NHS foundation trust,] [[Local Health Board], Special Health Authority or Primary Care Trust], by that National Health Service trust, [NHS foundation trust,] [[Local Health Board], Special Health Authority or Primary Care Trust].]

[(3A) A patient falls within this subsection if—

(a) he is liable to be detained in a registered establishment in pursuance of an application for admission for assessment or for treatment; or

(b) he is a community patient and the responsible hospital is a registered establishment.]

(4) The powers conferred by this section on any authority [trust] [, board] [(other than an NHS foundation trust)] or body of persons may be exercised [subject to subsection (5) below] by any three or more members of that authority [trust] [, board]or body authorised by them in that behalf or by three or more members of a committee or sub-committee of that authority [trust] [, board]or body which has been authorised by them in that behalf.

[(5) The reference in subsection (4) above to the members of an authority, trust [, board] or body or the members of a committee or sub-committee of an authority, trust [, board] or body,—

(a) in the case of a [a [[Local Health Board], Special Health Authority or Primary Care Trust]] or a committee or sub-committee of [a [[Local Health Board], Special Health Authority or Primary Care Trust]], is a reference only to the chairman of the authority [, trust or board] and [such members (of the authority, trust, board, committee or sub-committee], as the case may be) as are not also officers of the authority [, trust or board], within the meaning of the [the National Health Service Act 2006 or the National Health Service (Wales) Act 2006]; and

(b) in the case of a National Health Service trust or a committee or sub-committee of such a trust, is a reference only to the chairman of the trust and such directors or (in the case of a committee or sub-committee) members as are not also employees of the trust.]

[(6) The powers conferred by this section on any NHS foundation trust may be exercised by any three or more [persons authorised by the board of the trust in that behalf each of whom is neither an executive director of the board nor an employee of the trust.]]

Amendments

Restricted patients

For restricted patients subsections (1) and (2) is modified by sched 1, Part II, paras 2 and 7.

Unrestricted hospital order patients

For these patients subsection (2) is modified by sched 1, Part I, paras 2 and 8.