Is there a definitive answer to this question?
And what is the effect when it’s attempted – does discharge happen immediately, on the future date/time, or not at all?
I’ve just realised that what makes RCs think they can defer s23 discharge to a future date/time is that some Trust’s discharge forms have boxes at the end for “Signature”, “Date of discharge”, and “Time of discharge”. It’s maybe not directly relevant to lawfulness or consequences, but I think probably the intention of the people creating the forms would have been that the RC should record the date and time of the signature (this being the date and time of discharge).
The question has cropped up here before. Once the RC deferred discharge for three days while the patient was on s17 leave and wanted to cancel it when things turned out badly (Deferred RC Discharge - Can this be revoked?), once the RC deferred discharge until the next day but wanted to cancel it to make way for a CTO (Can RC's deferred s23 discharge be retracted?), and once an RC wanted to cancel a deferred discharge after it had happened, to allow a CTO to exist (Deferred s23 discharge and CTO scheduled for exactly the same time). Those questions were all about cancellation, which to an extent took the focus away from the question of whether deferral is lawful.
Our S.23 forms asks for a date and time, but our IT system requires a date and time when discharging sections. As an MHA Admin I would definitely be questioning a S.23 that was for a future time and date.
I am confident that you cannot defer s23 discharge. We had this recently where the RC had purported to defer discharge just before MHT. The MHT office accepted the s23 and cancelled the MHT but the client was told they could not leave. It emerged that the s23 had not even been given to the ward. I emailed it to the ward manager and eventually the client was allowed to leave. I agree that some private hospitals use a misleading form which does look as if you can defer.
The power under s.23 is to order the absolute discharge of the patient. A discharge to a future date is not a absolute discharge.
Assuming the RC can’t defer discharge – if you see a s23 discharge form with a future time/date, what do you think has happened?
- Has discharge already happened? If the RC thought the detention criteria weren’t met then he was obliged to discharge.
- Or did the RC’s action have no legal effect at all? The patient would still be detained and the RC would have to reconsider.
Do you mean the ward treated the discharge as having already happened (when the RC signed the form, rather then at the future time/date specified on the form)?
Yes- that’s right. But in my case the form could be interpreted that way. It says ‘ I hereby discharge the patient from detention and she will leave hospital on …
I have just had this situation - s23 form received and the Tribunal has been cancelled. Having reviewed the form (which I didn’t get to do before the Tribunal was cancelled) the discharge date/time is 5pm today. I am still a little unclear as to the consequences of this (ie has discharge taken effect immediately despite the specified time or is it invalid altogether) so have asked the RC via the MHAA to do a new form effecting immediate discharge as I think that is the safest option.
If the RC was right (that deferred discharge is possible) then the tribunal was wrong (to cancel while the patient was still detained). If the RC was wrong then the tribunal might have been right (if discharge was immediate) or wrong (if the discharge form had no legal effect).
If you take the position that there was no discharge, then maybe you could appeal the tribunal’s decision that it ceased to have jurisdiction (and get a decision on the whole thing, one way or the other) and make a claim against the trust for unlawful detention (between the date/time of the form, if that is when the RC thought the detention criteria ceased to be met, and the date/time of discharge).
If you take the position that there was an immediate discharge then you’d miss out on the chance to get the tribunal to consider it, but could still argue that there was unlawful detention.
I think that a deferred RC discharge can’t be lawful and will have no effect (I have no authority for that though!) and therefore the Tribunal was wrong to cancel the hearing. I suspect the Tribunal office did not even check the discharge form or if it did, that it did not turn it’s mind to whether it was a valid discharge.
In my case after I e-mailed the MHAA the RC immediately completed a new discharge form with the discharge date and time being the same as the date and time of signature (so an immediate discharge). This all happened within the space of a few hours with client already agreeing to stay informally anyway so it’s become a bit academic.
Would be nice to have an answer though, it perhaps needs a case where the RC has deferred for more than a few hours with a Tribunal listed in the deferral period and a client who does not agree to stay informally post discharge to justify an appeal of the Tribunal’s decision to close the case…
There is probably no ideal case. Why not just go for it with this one? The Upper Tribunal sometimes seems happy enough to make decisions and give guidance on academic points, and the MHT might do what’s needed to help you get it there.