Absolute discharge

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.

Absolute discharge of detained patient by Tribunal

An absolute 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 not 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 slightly 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 for the history of this.

If liability to be recalled is appropriate, a conditional discharge must be granted instead. There is no general discretion in relation to discharge in restricted cases.

It is extremely rare to obtain an absolute discharge straight out of hospital. Following Reid v Secretary of State for Scotland [1998] UKHL 43 it was possible to obtain absolute discharge for untreatable psychopathic disorder on the grounds that if it is untreatable, the patient should not be liable to be recalled for 'treatment'. However, other caselaw suggests that conditional discharge may also be appropriate even if there is no mental disorder at all: for example Johnston v UK and R (SSHD) v MHRT, re BR [2005] EWHC 2468 (Admin). If the logic in these cases is to help settle someone safely into the community, then perhaps there should be some time limit on the conditional discharge, but there is no provision for this.

Absolute discharge of conditionally discharged patient by Tribunal

A conditionally discharged patient can make an application to the Tribunal for an absolute discharge.

s75 applies to the Tribunal's considerations. The section does not contain any criteria for the Tribunal to consider, so they have an unfettered discretion. See R (SC) v MHRT [2005] EWHC 17 (Admin), an unsuccessful challenge to the lack of criteria, and for some useful comments on what a Tribunal might consider. See also RH v South London and Maudsley NHS Foundation Trust [2010] UKUT 32 (AAC).

No application may be made to the Tribunal in the first year after the conditional discharge, but one may be made in the next year, and in each two-year period thereafter.

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

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 obviously similar considerations would apply. A Ministry of Justice discharge would follow a recommendation from the patient's RC, but such discharges are rare. Their policy (found in their 18/3/09 Guidance for Clinical Supervisors, and Guidance for Social Supervisors, documents) states:

MHU’s policy is that we will not grant absolute discharge unless it is clear that the restrictions are no longer required to ensure the patient’s safe management. This means that the Secretary of State will not grant absolute discharge where the patient still has a mental disorder, and has the potential to be a risk to others if not well supervised in the future, and where future supervision is not guaranteed.


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