Deferred RC Discharge - Can this be revoked?

We have a situation regarding the discharge of a S37 patient. The RC completed a S23(2)(A) Form on 21/06/22 to discarge the patient from section, however they deferred the discharge to 24/06/22. Pt on S17 leave until this date. The patient’s placement has broken down in the community and the unit wish to recall the patient to hospital and revoke the discharge.
Questions:

  1. Can the RC defer the discharge?
  2. If the RC can defer the discharge can this be revoked?
  3. If the RC does not have the power to defer - what happens to the S37? Did it end at the date / time the RC made the decision to discharge?

Our current thinking is the deferred discharge is unlawful and the S37 ended at the time the decision was made. To enable the patient to be brought back to hospital and detained a MHA Assessment would need to be completed.

Or

As the discharge has not yet taken place in line with the RCs wishes, the patient can be recalled from leave and the discharge revoked due to a change in circumstances.

Anyone have any experience of this or any advice as to how to move forward?

Once discharged on 21st June P couldn’t be on S17 leave as underlying section discharged. S17 allows detained patient’s to be granted leave

RC cannot defer discharge and S37 no longer valid.

These are really interesting quesions. I’m not aware of any cases making a decision one way or the other… but if you treat the discharge as having been deferred and revoked, then the patient might apply for judicial review and we might get a definitive answer!

My instinctive answers to your questions are:

  1. The RC has no power to defer discharge.
  2. In any event, there’s no procedure for revoking a discharge decision.
  3. The purported deferred discharge might have had no legal effect at all. But the approach you have in mind is probably the safest for you as an organisation – i.e. arranging a new MHA assessment just in case the section might have ended on 21 June or might end on 24 June.

Here’s one way of looking at it. RCs share their s23 discharge power with hospital managers so, despite the obvious differences, I think the same principles should probably apply to both.

The old 2008 edition of the Code of Practice stated:

31.38 If panels conclude that the patient ought to be discharged, but practical steps to put after-care in place need to be taken first, they may adjourn the panel for a brief period to enable that to happen before formally discharging the patient. Alternatively, they may order the patient’s discharge from a specified date in the near future. They may not discharge patients provisionally but defer the final decision to discharge until certain conditions have been met.

And the 2015 edition stated:

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.

Here’s what the MHA Manual says about it (24th edition, 1-406, p208):

DISCHARGING HIM ABSOLUTELY. This provision does not contain a power to order the conditional discharge of the patient. The 2008 edition of the Code of Practice, at para.31.38, stated that it would be lawful for the hospital managers to order that the patient’s unconditional discharge takes effect on a specified date in the near future. The accuracy of this statement is open to doubt for two reasons:

(i) a deferred discharge is not an absolute discharge. If a patient is discharged absolutely, he has a right to leave hospital immediately; a patient who is given a deferred discharge has no such right; and
(ii) the tribunal is provided with a specific power to order the deferred discharge in s.72(3). If Parliament was of the opinion that hospital managers have an implied power to order such a discharge, why was it felt necessary to provide the tribunal with a specific power?

If the hospital managers are concerned about the adequacy of the after-care services that will be available to the patient on discharge, they should adjourn the hearing and reconvene to a date when the relevant information should be available. If the hospital managers decide to defer the patient’s discharge to a particular date, the patient would have to be discharged on that date even though the anticipated arrangements for his discharge had not been put in place. The current edition of the Code, which does not reproduce para.31.38 of the 2008 edition, adopts the approach advocated here at para.38.40.

I think the sentence towards the end is probably meant to mean “If the hospital managers decide had the power to defer the patient’s discharge to a particular date, the patient would have to be discharged on that date even though the anticipated arrangements for his discharge had not been put in place.”

Thank you Jonathan. I have incorporated your suggestion into the text of the 25th edition.

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