MHA 1983 s75
There are no specific criteria for the MHRT when considering whether to absolutely discharge a conditionally-discharged patient. This is still compatible with the ECHR: see R (SC) v MHRT  EWHC 17 (Admin).
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- RH v South London and Maudsley NHS Foundation Trust  UKUT 32 (AAC) — (1) The Tribunal's reasons for refusing to grant the absolute discharge of a conditionally-discharged patient, against the unanimous evidence of the treating team and an independent psychiatrist, were adequate. (2) The Tribunal disagreed not with the witness's assessments but with their conclusions as to whether the restriction order should cease to have effect: that was the kind of judgment for which it is difficult to give reasons beyond those required to show that the tribunal has directed itself correctly as to the law and to show to what matters the tribunal has had regard. (3) The extensive references to the SC case were enough to show that the Tribunal had the correct legal test in mind. (4) The restrictions can continue in the absence of any mental disorder, and risk from possible future disorder is relevant, so the criteria here are very different from those for discharge of a CTO: in the latter a focus on the short-term position might be appropriate, whereas the Tribunal ..→
- R (Martins) v Cannons Park MHRT (1995) 26 BMLR 134 — The eligibility of an un-recalled conditionally discharged patient to apply to the Tribunal under s75(2) is calculated, not from the date of a deferred conditional discharge decision, but from the date of actual release from detention in hospital under conditional discharge.
- R (Rayner and Marsh) v SSHD  EWHC 1028 (Admin) — (1) Section 75 provides an independent legal device by which the detainee may appear before a judge which is not dependent on the good will of the detaining authority and thus is Article 5 compliant; in any event, the section cannot be incompatible as means exist to operate it compatibly. (2) In order for s75 to be compatible the Secretary of State ought to refer the case of a recalled patient at once (in practice, within 72 hours) to the MHRT unless the circumstances of the applicant or his case positively require otherwise. (3) On the facts the delay in making the reference breached Article 5(4).
- Scottish Ministers v MHTS, re NG and PF  CSIH 33 — The Mental Health Tribunal for Scotland has no power to vary the conditions of a patient who had been conditionally discharged, as the power to set conditions only arises at the time of discharge.
[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, 21. Powers of the Tribunal to discharge patients [Note that the chapter number relates to the old Reference Guide], 22. Applications to the First-tier Tribunal [Note that the chapter number relates to the old Reference Guide], 23. References to the Tribunal [Note that the chapter number relates to the old Reference Guide] — paragraphs 21.35 and 21.36, chapter 22, especially table 22.10, and paragraph 23.22
Applications and references concerning conditionally discharged restricted patients
75.—(1) Where a restricted patient has been conditionally discharged under section 42(2), 73 or 74 above and is subsequently recalled to hospital—
- (a) the Secretary of State shall, within one month of the day on which the patient returns or is returned to hospital, refer his case to [the appropriate tribunal]; and
- (b) section 70 above shall apply to the patient as if the relevant hospital order[, hospital direction] or transfer direction had been made on that day.
(2) Where a restricted patient has been conditionally discharged as aforesaid but has not been recalled to hospital he may apply to [the appropriate tribunal]—
- (a) in the period between the expiration of 12 months and the expiration of two years beginning with the date on which he was conditionally discharged; and
- (b) in any subsequent period of two years.
(3) Sections 73 and 74 above shall not apply to an application under subsection (2) above but on any such application the tribunal may—
- (a) vary any condition to which the patient is subject in connection with his discharge or impose any condition which might have been imposed in connection therewith; or
- (b) direct that the restriction order[, limitation direction] or restriction direction to which he is subject shall cease to have effect;
and if the tribunal [gives] a direction under paragraph (b) above the patient shall cease to be liable to be detained by virtue of the relevant hospital order[, hospital direction] or transfer direction.