MHA 1983 s23
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
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  EWHC 815 (Admin) — It is lawful to defer discharge in dangerous criterion cases where the deferral is relevant to considerations of dangerousness
- R (O) v West London MH NHS Trust  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  EWCA Civ 330 — Panel of three hospital managers must be unanimous in order to discharge patient.
[The chapter/paragraph numbers which appear below (if any) refer to the 2008 versions of the Code of Practice and Reference Guide.]
- Reference Guide to the Mental Health Act 1983, 12. Detention in hospital [Note that the chapter number relates to the old Reference Guide], 15. Supervised Community Treatment [Note that the chapter number relates to the old Reference Guide], 19. Guardianship and guardianship orders [Note that the chapter number relates to the old Reference Guide] — 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
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.]
(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.
- (a) in the case of a [a [[Local Health Board] [or Special Health Authority] [...]]] or a committee or sub-committee of [a [[Local Health Board] [or Special Health Authority] [...]]], is a reference only to the chairman of the authority [[...] or board] and [such members (of the authority [...], board, committee or sub-committee], as the case may be) as are not also officers of the authority [[...] 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.]]
- Mental Health Act 2007 s9, s32 & sch 3; Mental Health Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2008 wef 3/11/08
- Subs (3) and (3A) repealed by Health and Social Care Act 2012 s39 (1/7/12)
- NHS and Community Care Act 1990
- References to Health Authorities Order 2007
- Health and Social Care (Community Health and Standards) Act 2003
- Health and Social Care Act 2012 s26; Health and Social Care Act 2012 (Commencement No.4, Transitional, Savings and Transitory Provisions) Order 2013 (1/4/13)
- Health Act 1999 (Supplementary, Consequential, etc Provisions) Order 2000
- Health Authorities Act 1995
- National Health Service (Consequential Provisions) Act 2006 wef 1/3/07
- Mental Health Act 2007 s45; Mental Health Act 2007 (Commencement No. 1) Order 2007 wef 24/7/07
Unrestricted hospital order patients
For these patients subsection (2) is modified by sched 1, Part I, paras 2 and 8.