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:
- The RC has no power to defer discharge.
- In any event, there’s no procedure for revoking a discharge decision.
- 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.”