I do work on hospital managers panels at a secure psychiatric hospital. We often have decisions to make about detainability of patients who have been symptom-free for 6 months or more and have a good understanding of how to stay well in the community. The RC recommends that the section should be renewed so that a good discharge plan can be set up. This may have been taking 6 months or more already. I feel detention is not “warranted” in such cases. Should the lack of a discharge plan be grounds for renewing detention? Is there any helpful case law on this?
So firstly the test is whether it is mental disorder of a nature or degree that makes it appropriate for him to be detained for medical treatment.
The test is nature or degree so even with patients who are symptom free for lengthy periods of time the nature of the disorder may make it appropriate to be detained to receive further treatment such as psychology, drug and alcohol work etc or simply to plan a safe discharge and test it out via s17 leave.
I dont think it would be particularly difficult to argue that a section should be renewed so that a discharge plan can be made and so that the necessary testing via s17 leave can be done as well as and additional support that may be identified through a social care assessment.
The test, of course, is that of whether the nature or degree of the patients disorder makes it appropriate for them to be detained in hospital for medical treatment. The “or” in nature or degree is inclusive (Ex Parte Smith), so a patient with a strong relapsing & remitting illness but normal presentation would mean that continued detention could be justified.
However, when I advocate at managers hearing I’m partial to the case of CM v Derbyshire (which is actually due to be codified into the new Mental Health Act), which restates previous authority as follows:
“If the nature of a patient’s illness is such that it will relapse in the absence of medication, then whether the nature is such as to make it appropriate for him to be liable to be detained in hospital for medical treatment depends on an assessment of the probability that he will relapse in the near future if he were free in the community and on whether the evidence is that without being detained in hospital he will not take the medication”
If there is a patient who you believe is aware how to stay well in the community, and on the balance of probabilities is likely to once discharged, then serious thought should be given as to whether ongoing treatment in hospital is necessary. The test of necessity is set out in Reid v Secretary of State for Scotland  and is distinguished from being mere “desirability”. If the panel are convinced that this person will stay well after discharge (allowing enough time for the community team to set up their own provisions), then I think discharge is suitable.
In a practical sense, it would be helpful to see the exact provisions available to them once discharged. For example, they will likely have oversight from the CMHT, they may have visits from the Home Treatment Team, and may even have specialist forensic team involvement. Inpatient teams can often drag their feet when it comes to discharge planning, and sometimes the better option for the patient (taking on board CoP principles) is to discharge.
Failing that - managers may have the power to hold a discretionary hearing date after a certain period of time (8 - 12 weeks) to ensure that these discharge plans are moving forward as needed.
In the tribunal context, the answer might be at least partly found in R (Ashworth) v MHRT; R (H) v Ashworth  EWCA Civ 923, in which the Court of Appeal said that when the availability of suitable after-care services is a prerequisite for the discharge criteria to be met, but the tribunal is in any doubt as to its availability, the tribunal should adjourn rather than defer discharge to a future date.
The adjournment part of this is relevant in your context: if you don’t believe the after-care under discussion is a prerequisite for discharge then you could just discharge straight away. Otherwise…
This is similar to an adjournment, which the Code of Practice mentions:
38.39 The presence or absence of adequate community care arrangements, including a deprivation of liberty authorisation or Court of Protection order may be critical in deciding whether continued detention (in particular) is necessary. If managers’ panels believe they have not been provided with sufficient information about arrangements that could be made were the patient discharged, they should consider adjourning and request further information.
38.40 If panels conclude that the patient ought to be discharged, but practical steps to put after-care in place (chapter 33), or obtain a deprivation of liberty authorisation or a Court of Protection order, need to be taken first, they may adjourn the panel for a brief period to enable that to happen before formally discharging the patient. Professionals should work together to minimise the time it takes to do this.
This tribunal case was considered in LW v Cornwall Partnership NHS Foundation Trust  UKUT 408 (AAC). Essentially, how soon the risk of relapse is likely to materialise is a relevant relevant consideration but not necessarily the only factor (the seriousness of the consequences being the obvious factor in the panel’s mind).