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| {{Information-header}}
| | #redirect[[Section 37/41: hospital order with restrictions]] |
| 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]].
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| == Discharge by Tribunal==
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| A conditional discharge must be granted where:
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| * The 's3' criteria for detention are no longer met (i.e. nature/degree/health/safety/others). See [[s72]](1)(b).
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| * It is appropriate for the patient to remain liable to be recalled to hospital for further treatment. See [[s73]](1)(b).
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| As the onus is on the detaining authority to satisfy the Tribunal of the former consideration, the actual wording of the Act is slighly 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]].
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| If liability to be recalled is ''not'' appropriate, an [[absolute discharge]] must be granted instead. There is no general discretion in relation to discharge in restricted cases.
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| == Discharge by Ministry of Justice==
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| 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 obiously similar considerations would apply. A Ministry of Justice discharge would follow a recommendation from the patient's [[RC]], but such discharges are relatively rare.
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| == The conditions ==
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| Invariably, conditions are imposed on the patient at the time of discharge (Under s73(4)(b) by the tribunal or under s42(2) by the Ministry of Justice).
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| Usual conditions include the following, depending on the nature of the case:
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| * Residence at a particular address<strike>, or "as directed by the RMO"</strike>. *
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| * Co-operation with supervision by a community RMO and a social supervisor.
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| Other conditions often imposed include:
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| * Abstinence from illegal drugs and excessive consumption of alcohol
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| * Urine drug screens
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| * Compliance with treatment (albeit on a voluntary basis: see [[R (SH) v MHRT (2007) EWHC 884 (Admin)]])
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| * Exclusion zones
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| * Not to contact victim or victim's family
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| <nowiki>*</nowiki>See: [[Media:MOJ letter residence conditions 17 Dec 2015.pdf|Colin Harnett, 'Changing discharge conditions - residence' (Dear Colleague letter from Head of Mental Health Casework Section, 17/12/15)]]. 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.<!--This text is also on the MOJ page-->
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| In relation to proposed conditions which would amount to a deprivation of liberty, see [[HM Prison and Probation Service, 'Guidance: Discharge conditions that amount to deprivation of liberty' (January 2019)]].
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| == Deferral ==
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| The Tribunal can order that the conditional discharge be deferred until the conditions can be met. See [[deferred conditional discharge]] for further details.
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| == Recall ==
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| In theory a conditionally discharged patient cannot be recalled simply for breaching a condition (contrast the position of a prisoner out on licence) as, unless in an emergency, there should be up-to-date medical evidence of mental disorder to justify recall. In practice if the RC informed the Ministry of Justice that the patient had breached his conditions and/or that there are concerns about his mental health, the Ministry of Justice would probably recall.
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| As a statutory safeguard for the patient, within a month of the return to hospital the case must be referred to the MHRT by the Ministry of Justice ([[s75]]). This must be done with "reasonable despatch having regard to all the material circumstances" ([[R (Rayner) v Secretary of State for Justice (2008) EWCA Civ 176]]). The hearing must be heard between 5 and 8 weeks from the reference ([[Tribunal rule 37]]).
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| See [[Eligibility periods]] for entitlement to apply to the Tribunal. See [[Recall]] for further details.
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| == Subsequently obtaining an absolute discharge ==
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| If the restriction order was time-limited, then the restrictions will cease at the specified time; also, if the patient has determinate sentence, then the restrictions will cease on the release date. If a patient has been conditionally discharged by the time the restrictions cease, then he is automatically absolutely discharged on that date: [[s42]](5)
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| Any conditionally-discharged patient can apply to the Tribunal for an absolute discharge - not during the first twelve months after conditional discharge; but once in the ''second'' 12-month period after conditional discharge; and once in each 2-year period thereafter. The Tribunal could also vary or add to the conditions: [[s75]](2),(3)
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| ==External links==
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| Relevant links can be found on the [[Ministry of Justice]] website.
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| {{Information-footer
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| |subcat=Types of discharge
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| |maincat=Glossary pages
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| }}
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