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Right to request discharge of s2 or s3 or CTO

Under s23(2) the NR has the power to ‘order’ discharge from s2 or s3 or CTO; however, this right is qualified by the provisions of s25.

The NR must give the hospital managers 72 hours’ notice of his intention to discharge the patient. He can use a form or write a letter. The following ‘Illustrative standard letter for nearest relatives to use to discharge patients’ is taken from MHA Code of Practice, para 35.25:

To the managers of [INSERT NAME AND ADDRESS OF HOSPITAL IN WHICH THE PATIENT IS DETAINED, OR (FOR A SUPERVISED COMMUNITY TREATMENT PATIENT) THE RESPONSIBLE HOSPITAL.]

Order for discharge under section 23 of the Mental Health Act 1983

My name is [GIVE YOUR NAME] and my address is [GIVE YOUR ADDRESS]

[Complete A, B or C below]

A. To the best of my knowledge and belief, I am the nearest relative (within the meaning of the Mental Health Act 1983) of [NAME OF PATIENT].

OR

B. I have been authorised to exercise the functions of the nearest relative of [NAME OF PATIENT] by the county court.

OR

C. I have been authorised to exercise the functions of the nearest relative of [NAME OF PATIENT] by that person’s nearest relative. I give you notice of my intention to discharge the person named above, and I order their discharge from [SAY WHEN YOU WANT THE PATIENT DISCHARGED FROM DETENTION OR SUPERVISED COMMUNITY TREATMENT].

[Please note: you must leave at least 72 hours between when the hospital managers get this letter and when you want the patient discharged.]

Signed

Date

For the 72 hours to start running, the form should be (a) ‘delivered … at that hospital to an officer of the managers authorised by the managers to receive it’; (b) sent by pre-paid post to the managers; or (c) if the managers agree, delivered using internal mail (Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008, reg 3(3)).

Time does not start running if the form is delivered by a method not prescribed above, for example by leaving it with a nurse or receptionist (as happened in Re GK (Patient: Habeas Corpus); Kinsey v North Mersey Community NHS Trust [1999] EWHC Admin 577) or by sending it to a generic fax number (as happened in K v Hospital Managers of the Kingswood Centre [2014] EWCA Civ 1332, [2014] MHLO 102). In both these cases the 72-hour period started when the MHA Administrator received the documentation at a later date.

Within those 72 hours the Responsible Clinician has the power to prevent discharge by issuing a barring certificate/barring order – he must certify that ‘the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself/herself’. This is the only basis for preventing discharge.

  • If the RC does not issue a barring certificate then the patient would be discharged at the end of the 72-hour period. The RC could decide to discharge the patient under his own s23 powers before then.
  • If the RC does bar the discharge, the hospital managers must consider holding a review (see Code of Practice). They invariably hold an oral hospital managers’ hearing.

If the discharge is barred, that NR cannot order discharge again for 6 months from the date of the barring order.

Finally, if it is perceived that the NR has exercised his right to request discharge ‘without due regard to the welfare of the patient or the interests of the public... or is likely to do so’ then this may lead to displacement proceedings under s29(3)(d).