Our consultant received a referral from the borough LA asking for the appointment of a clinical supervisor for a patient who has been placed in our area. The patient was initially subject to s37/41 on the basis that he had a learning disability with seriously irresponsible behaviour, but the learning disability diagnosis was removed in 2017. The patient has since been given a diagnosis of a personality disorder. The referral states the patient is stable so under normal circumstances the referral would not be accepted. It also appears the patient has not had any clinical supervisor since 2006. The MOJ has also emailed the consultant saying that it is a legal requirement for a patient to have a clinical supervisor and the patient not having one since 2006 is an administrative error. The MOJ are also trying to locate the tribunal decision directing the conditional discharge (which only stipulated the involvement of a social supervisor).
I understand the MOJ guidance (HMPPS, âMHCS: Conditionally Discharged Patients: Supervision and Reportingâ (October 2025)) strongly assumes that a conditionally discharged patient will have both a clinical and social supervisor - but is it a legal requirement? As the patient is now in our area are we under a legal duty to accept the referral for a clinical supervisor, even thought the patient is stable?
Yes there is a duty to appoint a Clinical Supervisor, as without a Clinical Supervisor, the MHRT cannot conditionally discharge a restricted patient. However, this is not an absolute duty.
The fact there has not been a Clinical Supervisor for some 20 years beggars the question if an absolute discharge is more proportionate. On those grounds a psychiatrist could contend that the appointment of a Clinical Supervisor was unwarranted, based upon the absence of supervision, and that the power of recall has also not been considered/exercised for some time. If it was me, I would put it back on the MOJ and decline to appoint a Clinical Supervisor.
It is not a legal requirement and the guidance is a bit spurious in places.
Take paragraph 14 for instance where it states âMHCS consider that the responsibility to provide social supervision is a prerequisite under section 117 of the 1983 Act and the failure to provide either clinical or social supervision will be escalated, by MHCS, to the Chief Executives of the respective Responsible Authorities.â
So what MHCS is doing here, is using the string of s.117 to apportion âlegal responsibilityâ which otherwise does not exist, although bizarrely, whilst MHCS considers that social supervision is essential aftercare, clinical supervision somehow is not, but failure to provide clinical supervision, will still mean that they will contact the CEO of the responsible Integrated Care Board, which all makes little to no sense.
Provider organisations can and do provide necessary care as they see fit, which means that they can also withdraw it by discharging the person from services. That in turn may give cause for the ICB and LSSA to consider that the overall need to provide aftercare no longer exists, such that the duty under s.117 falls away.
Those provider organisations and responsible authorities may need to and arguably must, take account of the MHCSâs opinion, but that opinion is not necessarily determinative as to what they decide to do.
Looking then to the MHA Code of Practice, at 22.79 it states âConditionally discharged restricted patients will in most cases be subject to community supervision and be monitored by a clinical supervisor and a social supervisorâŚâ So not all cases.
Then in chapter 33 which deals with after-care under s.117, there is no mention at all of conditionally discharged patients. Given that the Code overreaches its scope in places, it is perhaps surprising then that it does not consider clinical or social supervision as a prerequisite under s.117, in the same way that MHCS seems to.
I agree with all these replies. Itâs not straightforwardly a legal duty.
However, the MoJ could, I think, resort to judicial review against the trust. In which case, the trust might be in difficulty if it was shown to be applying a different approach to this patient than to one who had been conditionally discharged from one of its own hospitals After all, there must be plenty of conditionally discharged patients who continue to have a consultant supervising their care even though they are (currently) stable.
It is difficult (for me) to see how it would be either administratively or clinically justified to refuse to provide the same service to a patient in an otherwise similar situation just because they have moved from somewhere else.
I think it will go back to the MHRT decision at the time setting out supervision conditions. If this is explicit surely this then falls under Section 117 (2), this is the duty requirement, but not an absolute duty.
(2)It shall be the duty of the [integrated care board] or [Local Health Board] and of the local social services authority to provide [or arrange for the provision of**], in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the [integrated care board] or]** [Local Health Board] and the local social services authority are satisfied that the person concerned is no longer in need of such services
R (K) v Camden and Islington Health Authority [2001] 3 WLR (âKâ) was a case whose facts closely resembled those of the present case. A Tribunal decided to make a deferred direction for the conditional discharge of a patient, one condition being that the patient should receive psychiatric supervision after discharge. The Health Authority with the duty under s.117 of the Act to make aftercare arrangements for the patient, despite its best endeavours, failed to persuade any psychiatrist to undertake this responsibility. The patient brought judicial review proceedings against the Health Authority, contending that it was under an absolute duty to provide the psychiatric services necessary to enable compliance with the condition specified by the Tribunal. This Court dismissed the proceedings, holding that the Health Authority owed no such duty. Its statutory duty was restricted to using reasonable endeavours to provide the services in question. This it had done as it was in no position to order a psychiatrist to supervise the patient, if the psychiatrist declined to do so on grounds of professional judgment.