Mental Health Act 1983
(as amended)

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Law as at 19/11/11

Part V contents

65, 66, 67, 68, 68A, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79

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 gives the Mental Health Review Tribunal the power to discharge unrestricted patients. See Discharge.

Changes made by Mental Health Act 2007

• Mental disorder no longer split into separate classifications 3/11/08
• Appropriate treatment test replaces treatability test and applies to all patients under long-term detention 3/11/08
• Supervised Community Treatment replaces Supervised Discharge 3/11/08

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.

• AA v Cheshire and Wirral Partnership NHS Foundation Trust (2009) UKUT 195 (AAC) — An application made while a patient is detained under section 2 or 3 does not lapse when the patient is made subject to a CTO, as s72(1) (powers of tribunals) should be given a literal construction. Preliminary points: (1) Discussion on Law Society guidance and cases where client lacks full capacity. The Upper Tribunal has no power to appoint a litigation friend or equivalent, and the OS's powers and duties apply to court proceedings not tribunals; in any event, justice did not require a litigation friend as the potential "best interests" argument was argued by other parties. (2) It was not unlawful for a First-tier Tribunal judge to consider an application for permission to appeal from, or a review of, his own decision.

• Grant v MHRT (1986) The Times 28/4/86 — The Tribunal has no power to make statutory recommendations under s72(3) in restricted cases.

• MD v Nottinghamshire Health Care NHS Trust (2010) UKUT 59 (AAC) — The Tribunal decided that appropriate treatment was available at Rampton, or alternatively that MD was benefiting from the ward milieu; their reasons were adequate. (1) The detention was not mere containment: (a) treatment could be appropriate even without the possibility of risk reduction; (b) although if there was no prospect of the patient progressing beyond milieu therapy (to engage in psychotherapeutic work) there might come a point at which treatment was no longer appropriate, MD was not at that stage. (2) There was no practical distinction in this case between s72(1)(b)(i) and (iia) so if the tribunal dealt properly with head (iia), its reasoning covered head (ii). (3) The Tribunal was entitled to rely on the evidence, and make the findings of fact, which it did. (4) Although treatment is not defined by reference to its likely effect, as a practical matter, that will have been taken into account in deciding whether the treatment could be given for a permitted purpose. (5) ..→
• MP v Mersey Care NHS Trust (2011) UKUT 107 (AAC) — The Tribunal panel discharged a s47 patient, deferred for six weeks for after-care arrangements, and stated in para 9 that it 'would also invite Mr P's care team to consider whether to implement a community treatment order'; a CTO was then made; however, the panel's decision by discharging the section simulaneously discharged the CTO. On the responsible authority's application under Tribunal rule 45, a FTT judge reviewed and set aside the decision (because the panel had frustrated its intention that there be a CTO); she then reviewed her own decision, upheld it, and remitted the case to a fresh panel. (1) The patient appealed, but both review decisions are excluded from the appeal jurisdiction (and not from the JR jurisdiction) so the appeal was treated as a JR application. (2) The panel's decision that the first two statutory criteria were not met was not simply an oversight: it had specifically stated that the third criterion was met. (3) Para 9 was not expressed as a ..→
• PS v Camden and Islington NHS Foundation Trust (2011) UKUT 143 (AAC) — The Tribunal's policy is that a reference made under s68(7) (triggered by the revocation of a CTO) will be treated as having lapsed if the patient subsequently is placed on a new CTO (see Guidance: References made under section 68(7) Mental Health Act 1983 (as amended)). When the patient's representative argued that the case should be heard, the Tribunal treated that letter as the patient's own application. (1) The policy is unlawful: (a) whether the reference has lapsed depends on the nature of the reference, which is a matter of statutory interpretation, so neither the overriding objective nor the policy is relevant; (b) the subject matter of a reference under s68(7) (the duty to consider the s72 criteria) is not related to the circumstances that trigger it (the revocation of the CTO) so survives the change in circumstances; (c) the policy is inconsistent with s68(3)(c) (no six-month reference if revocation reference has been made) which would not be necessary if the ..→
• 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 (East London and the City MH NHS Trust) v MHRT, re IH (2005) EWHC 2329 (Admin) — The Tribunal failed properly to deal with s72(2)(a) when directing discretionary discharge; should have adjourned for information to satisfy itself that appropriate aftercare would be in place; and failed to consider their s72(2) power to recommend transfer.

• 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 (M) v South Thames MHRT (1997) EWHC Admin 797 — Tribunal application made while under s2 does not fall if the patient is subsequently placed under s3; patient maintains his separate right to apply under while s3.

• R (O) v MHRT (2006) EWHC 2659 (Admin) — Patient can withdraw application between unfulfilled s72(3) recommendation and reconvened hearing. [Caution.]

• R (P) v SSHD (2003) EWHC 2953 (Admin) — The ECHR does not require joint MHRT/Parole Board hearings; the need for consecutive hearings does not breach Article 5(4).

• R (RD) v MHRT (2007) EWHC 781 (Admin) — (1) The communication by the medical member of a "very preliminary" view was lawful, even though it went to detainability and not merely to mental condition; (2) the reasons given for not discharging were adequate.

• R (SR) v MHRT (2005) EWHC 2923 (Admin) — MHRT application appealing against s3 falls when patient subsequently made subject to s25A; fresh application required.

• Re Whitbread (No 2) (Habeas Corpus: Continued Detention) (1999) EWHC Admin 2 — (1) The duty to discharge under s72 following a Tribunal decision to discharge on a future date is subject to s29(4) which provides a further basis for detention during displacement proceedings; (2) The managers' reasons for upholding the RMO's barring certificate were adequate.

• Reid v Secretary of State for Scotland (1998) UKHL 43 — (1) Treatability test is part of admission criteria for psychopathic disorder, so entitled to discharge when it is not met; definition of treatment is wide and can include treatment only for symptoms rather than underlying disorder, e.g. anger management. (2) Decision not to discharge not irrational.

See also

• Reference Guide to the Mental Health Act 1983, 21. Powers of the Tribunal to discharge patients — paragraphs 21.4 to 21.14
• Mental Health Act 1983 Code Of Practice for England, 25. Supervised community treatment

Law

Powers of tribunals

72.—[(1) Where application is made to [the appropriate tribunal] by or in respect of a patient who is liable to be detained under this Act [or is a community patient], the tribunal may in any case direct that the patient be discharged, and—

(a) the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if [it is] not satisfied—

(i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his 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;

(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if [it is] 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 a hospital for medical treatment; or

(ii) that it is necessary for the health of 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 application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself.]

[(c) the tribunal shall direct the discharge of a community patient if [it is] not satisfied—

(i) that he is then suffering from mental disorder or mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment; or

(ii) that it is necessary for his health or safety or for the protection of other persons that he should receive such treatment; or

(iii) that it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) above to recall the patient to hospital; or

(iv) that appropriate medical treatment is available for him; or

(v) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself.]

[(1A) In determining whether the criterion in subsection (1)(c)(iii) above is met, the tribunal shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).]

(2) [...]

(3) A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal [does not] direct the discharge of a patient under that subsection the tribunal may—

(a) with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and

(b) further consider his case in the event of any such recommendation not being complied with.

[(3A) Subsection (1) above does not require a tribunal to direct the discharge of a patient just because [it thinks] it might be appropriate for the patient to be discharged (subject to the possibility of recall) under a community treatment order; and a tribunal—

(a) may recommend that the responsible clinician consider whether to make a community treatment order; and

(b) may (but need not) further consider the patient's case if the responsible clinician does not make an order.]

(4) Where application is made to [the appropriate tribunal] by or in respect of a patient who is subject to guardianship under this Act, the tribunal may in any case direct that the patient be discharged, and shall so direct if [it is] satisfied—

(a) that he is not then suffering from [mental disorder]; or

(b) that it is not necessary in the interests of the welfare of the patient, or for the protection of other persons, that the patient should remain under such guardianship.

(4A) [...]

(5) [...]

(6) Subsections (1) to [(4)] above apply in relation to references to [the appropriate tribunal] as they apply in relation to applications made to [the appropriate tribunal] by or in respect of a patient.

(7) Subsection (1) above shall not apply in the case of a restricted patient except as provided in sections 73 and 74 below.

Amendments

Transfers from Scotland: The Mental Health (Patients in the Community) (Transfers from Scotland) Regulations 1996 modified subsection (4A) which has since been repealed.