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Section 37/41: hospital order with restrictions

This is a hospital order under s37 with restrictions under s41.

The patient is subject to the Part 4 ‘Consent to Treatment’ provisions.

Criteria

The restrictions under section 41 may be given only by the Crown Court, and if (s41(1)):

it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm

It is the harm which must be serious (rather than just the risk of committing further offences) (R v Birch (1990) 90 Cr App R 78).

The sentencing judge may impose restrictions even if this is contrary to the medical recommendations (see, for instance, R v Parkins [2012] EWCA Crim 856M, [2012] MHLO 50).

Effects of restrictions

The main effects of the restrictions, which are set out in s41(3), are as follows:

  • The section need not be renewed at the usual periods: it continues indefinitely until discharged (s41(3)(a)).
  • A Community Treatment Order is not available (s41(3)(aa)).
  • The usual Tribunal eligibility rights (in s66 and s69) do not apply (s41(3)(b)).
  • The Justice Minister’s consent is required for (i) s17 leave of absence, (ii) s19 transfer, or (iii) s23 discharge (s41(3)(c). This means that the hospital managers effectively have no power of discharge so there is rarely any point in applying for a hearing.
  • If the patient goes AWOL the ability to return him is indefinite (s41(3)(d)).

Since the MHA 2007 amendments on 3/11/08, ‘time limited’ restriction orders cannot be made. In other words, restrictions must be for indefinite duration. There are no time-limited restriction orders still in existence (email from Head of MHCS, 16 March 2016).

Discharge

Routes to discharge
  • Mental Health Tribunal
  • Ministry of Justice (invariably only at RC’s request)
  • Hospital managers’ hearing (with MoJ permission: theoretical only)
  • Responsible Clinician (with MoJ permission: theoretical as MoJ uses its own power)
  • No nearest relative
  • Court of Appeal
Tribunal eligibility
  • Following hospital order made by court: no application during first six-month period; once during subsequent six-month period; once during each annual period thereafter.
  • Following recall: as above.
  • (Following a conditional discharge: no application during the first 12-month period; once during subsequent 12-month period; once during each 24-month period thereafter.)
Types of discharge
  • Absolute discharge
  • Conditional discharge
  • Deferred conditional discharge
References
  • Discretionary reference by Secretary of State for Justice
  • Three-year reference by Secretary of State for Justice (even if under 18)

The relevant Tribunals Service target was for the hearing to be held within 17 weeks of receipt of application.

Conditional discharge

The routes to a conditional discharge (or deferred conditional discharge) are discussed below, together with a description of the regime under which the patient will find himself.

Conditional discharge by Tribunal

A conditional discharge must be granted where:

  • The Tribunal is not satisfied that the ‘s3’ criteria for detention are met (s72(1)(b), applied by s73(1)(a)).
  • The Tribunal is not satisfied that ‘it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment’ (s73(1)(b))

As usual, the burden of proof is on the responsible authority to prove the former; however, the burden of proof in relation to the latter rests with the patient.

If liability to be recalled is considered to be not appropriate, an absolute discharge must be granted instead.

There is no general discretion in relation to discharge in restricted cases.

It is lawful to grant a conditional (as opposed to absolute) discharge for patients with no mental disorder at all (Johnson v UK 22520/93 [1997] ECHR 88M, R (SSHD) v MHRT, re BR [2005] EWCA Civ 1616M). The patient would then be able to apply for an absolute discharge at a later stage.

Deferred conditional discharge by Tribunal

The Tribunal ‘may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to its satisfaction’ (s73(7)).

It cannot defer to see if the patient’s mental health improves, or to allow for testing of his mental state in the community (as that testing amounts to further treatment). The patient needs to be ready for conditional discharge on the day of the hearing (subject to any necessary arrangements being made).

It cannot defer to a specific future date, in contrast to a delayed discharge in unrestricted cases. It can only grant a deferred conditional discharge when (a) it has found, on the balance of probabilities, that the patient should not be detained but should be subject to recall, and (b) it has drafted the conditions for the discharge (DC v Nottinghamshire Healthcare NHS Trust [2012] UKUT 92 (AAC)M, [2012] MHLO 53).

Often deferrals are made in order for suitable accommodation, or supervision, to be arranged.

Following the decision there is a duty on the relevant bodies to make ‘reasonable endeavours’ to ensure the arrangements can be met (R (K) v Camden and Islington Health Authority [2001] EWCA Civ 240M).

A deferred conditional discharge decision is provisional, rather than final, so the Tribunal can reconvene after a period to consider the case afresh if it has been impossible to give effect to the conditional discharge (R (IH) v SSHD [2003] UKHL 59M). When granting the deferred conditional discharge the Tribunal should set a date to reconvene if necessary. The Tribunal will grant the conditional discharge on the papers if the RC writes to state that the necessary arrangements have been made.

Conditional 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 similar considerations would apply. A Ministry of Justice discharge would most likely follow a recommendation from the patient’s RC; such discharges are rare in comparison with Tribunal discharges. But it can be quicker in clear-cut cases.

The conditions

Conditions are technically not necessary but almost invariably are imposed, under s73(4)(b) by the Tribunal or under s42(2) by the Ministry of Justice. A tribunal is under a duty to explain its decision, including a decision not to impose conditions, although in some cases the circumstances alone may provide sufficient explanation (Secretary of State for Justice v MP [2013] UKUT 25 (AAC)M, [20]).

In DA v Central and North West London NHS Foundation Trust [2021] UKUT 101 (AAC)M the tribunal had removed all conditions from a conditional discharge (rather than absolutely discharge): the Upper Tribunal held that there was nothing intrinsically irrational about this but that inadequate reasons had been given.

Common conditions include the following:

  • Residence at a particular address, or ‘as directed by the RC/social supervisor’.
  • Co-operation with supervision by a community RC and a social supervisor.
  • Compliance with treatment

Other conditions often imposed include (depending on the nature of the risks):

  • Abstinence from illegal drugs
  • Urine drug screens
  • Exclusion zones
  • Not to contact victim or victim’s family
  • Avoiding excessive consumption of alcohol

The following suggested conditions are taken from the Ministry of Justice’s ‘conditional discharge application form’ (31 March 2017):

Annex A - Examples of ‘standard’ conditions suggested by the First-Tier Tribunal:

1. Reside at [specify address] [24 hour supported/supported/residential accommodation as directed by the RC and social supervisor] [and abide by any rules of the accommodation], and obtain the prior agreement of the responsible clinician and social supervisor for any stay of one or more nights at a different address.

NB: The Secretary of State also has a clause whereby the Ministry of Justice should be informed of any change of address at least 14 days prior to the move taking place

2. Allow access to the accommodation, as reasonably required by the responsible clinician and social supervisor.

3. Comply with medication and other medical treatment [and with monitoring as to medication levels] [including… [Specify here any particular non-pharmacological medical treatment]], as directed by the responsible clinician and social supervisor.

4. Engage with and meet the clinical team, as directed by the responsible clinician and social supervisor.

5. Abstain from alcohol [save as directed by the responsible clinician and social supervisor].

6. Abstain from illicit drugs and ‘legal highs’.

7. Submit to random drugs and alcohol testing, as directed by the responsible clinician and social supervisor.

8. Not enter the area[s] of [specify general location] as delineated by the zone[s] marked on the map[s] supplied by [specify name of person/organisation producing map] and shown to the Tribunal today, save as agreed in advance by the responsible clinician and social supervisor.

9. Not seek to contact directly or indirectly [specify names].

10. Disclose to the responsible clinician and social supervisor any developing intimate relationship with any other person.

11. Disclose all pending and current [employment, whether paid or voluntary] [all educational activities] [all community activities] to the responsible clinician and social supervisor.

12. Not leave the UK without the prior agreement of the responsible clinician and social supervisor.

If the client would agree to certain conditions, you can explain this at the outset of the hearing.

The implementation of some conditions could potentially amount to a ‘deprivation of liberty’ for the purposes of Article 5, but should not. See, for instance, HM Prison and Probation Service, 'Mental Health Casework Section: Guidance: Discharge conditions that amount to deprivation of liberty' (January 2019)

If there is a condition that a patient take medication, his compliance is treated as being voluntary (R (SH) v MHRT [2007] EWHC 884 (Admin)M).

The Family Division in Re T (A child: murdered parent) [2011] EWHC B4 (Fam)M considered the effect of no-contact and exclusion-zone conditions and decided that, since the only sanction for breach of conditions is recall (which is discretionary and dependent on further medical evidence) the court would additionally make a non-molestation or equivalent orders, so that the matter could be brought before the court in the event of a breach.

In response to a case in which the MOJ had not closely managed a patient's movements (it had not registered a change of address), the following policy will apply from 4/1/16: (1) All conditionally-discharged patients will have a condition giving an actual residence address, and RCs will not have a discretion to move patients without providing 14 days' notice; (2) If the tribunal does not specify an address the MOJ will add one; (3) Existing conditions will be re-examined on receipt of conditionally-discharged patient reports and conditions may be amended (to add an address or remove the RC's discretion to move the patient); (4) Discharges by the MOJ will also accord with this policy; (5) Dialogue with the MOJ before the 14-day point is encouraged (Colin Harnett, 'Changing discharge conditions - residence' (Dear Colleague letter from Head of Mental Health Casework Section, 17/12/15)).

In RP v Dudley and Walsall Mental Health Partnership NHS Trust [2016] UKUT 204 (AAC)M, [2016] MHLO 15 there was an unsuccessful Article 8 challenge to the conditions of a patient’s discharge.

In Re E [2020] MHLO 52 (FTT) the tribunal added a condition to the written reasons which was not stated at the hearing: “Abide by the rules applicable to such accommodation in particular to sleep there every night and not to have overnight guests.” On review (in a non-binding decision by the First-tier Tribunal) it was decided that there had been a clear error of law and the condition was removed: (a) the tribunal had failed to address in its decision why it had made the conditions it made; (b) it was required to provide a brief explanation; (c) it was also required to announce the conditions that the patient was subject to in exact terms, which was crucial given that the patient was being conditionally discharged immediately.

Recall

In theory a conditionally-discharged patient cannot be recalled simply for breaching a condition (contrast the position of a prisoner on licence) as, unless in an emergency, there should be up-to-date medical evidence of mental disorder to justify recall (Kay v UK 17821/91 [1994] ECHR 51M).

For the Secretary of State to recall a patient who has been conditionally discharged by the Tribunal the decision maker must ‘believe on reasonable grounds that something has happened since the decision of the [Tribunal], or information has emerged which was not available to the [Tribunal], of sufficient significance to justify recalling the patient’ (R (IT) v SSJ [2008] EWHC 1707, R (MM) v SSHD [2007] EWCA Civ 687M).

The patient should be given reasons adequately and promptly following detention (in accordance with published policy, the Code of Practice and Article 5(2)) though a failure to give reasons would not render unlawful an otherwise lawful recall (R (Lee-Hirons) v SSJ [2016] UKSC 46M, [2016] MHLO 38).

As a statutory safeguard for the patient, within a month of the return to hospital the case must be referred to the Tribunal by the Ministry of Justice (s75). This referral must be made with ‘reasonable despatch having regard to all the material circumstances’, so usually well within the one-month period (R (Rayner) v Secretary of State for Justice [2008] EWCA Civ 176M). The hearing must be heard between 5 and 8 weeks of the reference (Tribunal rule 37) which is sooner than the usual timeframe for restricted cases.

The recalled patient cannot apply to the Tribunal during the first six months following recall, but may apply in the second six months and in each 12-month period thereafter (s75).

Absolute discharge

It is extremely rare for detained patients to obtain an absolute discharge from hospital, and invariably it is wise to advise a client against seeking this; it is more common to achieve absolute discharge after a period of stability in the community. The routes towards absolute discharge are considered below.

Routes to discharge
  • Mental Health Tribunal
  • Ministry of Justice (invariably only at RC’s request)
Tribunal eligibility Detained patient:
  • As above (6, 6, 12…)

Already conditionally discharged (12, 12, 24…):

  • Not during first 12 months of C/D
  • Once in subsequent 12 months
  • Once in each subsequent 24-month period

Absolute discharge of detained patient by Tribunal

An absolute discharge must be granted where:

  • The Tribunal is not satisfied that the ‘s3’ criteria for detention are met (s72(1)(b), applied by s73(1)(a)).
  • The Tribunal is satisfied that ‘it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment’ (s73(1)(b))

If liability to be recalled is not considered to be ‘not appropriate’ (in other words, if it is appropriate) a conditional discharge must be granted instead.

For the decision to be lawful there must be specific consideration of the appropriateness of liability to be recalled. This is the case even if the Tribunal believes that the patient suffers from no mental disorder at all (as happened in R (SSHD) v MHRT, re BR [2005] EWCA Civ 1616M). In the BR case the Court of Appeal quashed the absolute discharge but declared the patient entitled to be conditionally discharged pending the Tribunal’s re-determination of the appropriate discharge type.

In SLL v Priory Healthcare Limited [2019] UKUT 323 (AAC)M, a rare case in which the patient sought absolute discharge from detention, the First-tier Tribunal failed properly to address either the expert evidence that risk could be managed by future Part 2 detention rather than the recall power, or the patient’s argument that the setting of a psychiatric hospital was positively harmful.

There is no general discretion in relation to discharge in restricted cases.

Absolute discharge of conditionally-discharged patient by Tribunal (s75)

A conditionally-discharged patient can make an application to the Tribunal for an absolute discharge or for the conditions to be varied.

Section 75 applies to the Tribunal’s considerations. The section does not contain any criteria for the Tribunal to consider, so they have an unfettered discretion, but Munby J gave guidance on the matter in R (SC) v MHRT [2005] EWHC 17 (Admin)M:

57. Accordingly the Tribunal when exercising these powers will need to consider such matters as the nature, gravity and circumstances of the patient’s offence, the nature and gravity of his mental disorder, past, present and future, the risk and likelihood of the patient re-offending, the degree of harm to which the public may be exposed if he re-offends, the risk and likelihood of a recurrence or exacerbation of any mental disorder, and the risk and likelihood of his needing to be recalled in the future for further treatment in hospital. The Tribunal will also need to consider the nature of any conditions previously imposed, whether by the Tribunal or by the Secretary of State, under sections 42(2), 73(4)(b) or 73(5), the reasons why they were imposed and the extent to which it is desirable to continue, vary or add to them.

59. The consequence of an order under section 75(3)(b) is that the restriction order ceases to have effect; in other words, that what was previously only a conditional discharge becomes in effect an absolute discharge. But, as section 73 demonstrates, the difference between the two is the difference between the patient who is, and the patient who is no longer, liable to be recalled to hospital for further treatment. So, in effect, one of the key questions that the Tribunal will wish to ask itself when considering how to exercise its powers under section 75(3) is whether it is – as section 73(1)(b) puts it – “satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.” If the Tribunal is not so satisfied, then it is difficult to see that it could be appropriate for it to make an order under section 75(3)(b).

It is lawful (but not necessary) for the panel to place on the patient the burden of demonstrating the inappropriateness of continuing liability to be recalled (RH v South London and Maudsley NHS Foundation Trust [2010] UKUT 32 (AAC)M, RH v South London and Maudsley NHS Foundation Trust [2010] EWCA Civ 1273M).

Absolute 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.

Recommendations

In restricted cases (s37/41, s47/49 etc) there is no statutory power to make recommendations (Grant v MHRT (1986) The Times 28/4/86). It is therefore not lawful for the tribunal to adjourn solely in relation to such recommendations.

However, Tribunals are often willing to make informal, non-statutory recommendations. These are not binding in any way and there is no associated power to reconvene if they are not met. The government’s position was stated in a Written Answer (Hansard HC vol 121, cols 261-62, 28/10/87):

Any such recommendation received in the [Ministry of Justice] is acknowledged, and any comments are offered which can usefully be made at that stage. Correspondence with the tribunal is copied to the patient’s [responsible clinician] since it is for this officer to consider the recommendation in the first instance. If the [responsible clinician] submits a proposal based on a tribunal’s recommendation, full account is taken of the tribunal’s views. At any subsequent hearing of the case, the statement which the [Ministry of Justice] provides will explain the outcome of any recommendation which the tribunal had made.

In relation to recommendations in the context of a deferred conditional discharge decision, Crane J in R (RA) v SSHD [2002] EWHC Admin 1618B stated that:

[T]he secretary of state has a duty to respond with reasonable promptness to recommendations by a tribunal and to requests by a [responsible clinician]; not to obstruct or cause unreasonable delay to the implementation of a tribunal’s decision; and to follow recommendations made by a tribunal in the absence of sound reasons or new circumstances.

There is no legal right to advance an argument for an extra-statutory recommendation to be made, so there is no obligation on the tribunal to state reasons for not making one (EC v Birmingham and Solihull Mental Health NHS Trust [2012] UKUT 178 (AAC)M, [2013] EWCA Civ 701M). If a panel is reluctant to consider making a recommendation, it might be argued that leave or transfer is a necessary and available part of the patient’s treatment (in relation to the test in s72(1)(b)(iia)).

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