The whole “liable to be detained” concept has always puzzled me. If you’re arguing for a conditional discharge then you will likely be arguing that it’s not appropriate for the patient to be liable to be detained… but you’re still liable to be detained when you’re conditionally discharged. What does it mean? Maybe they didn’t think through the criteria in the 1980s when they added (a) the extra nature/degree/appropriateness test and (b) the tribunal’s power to discharge restricted patients.
(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied—
(i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(ii) that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or …
In SSJ v MM [2018] UKSC 60 Lady Hale in the Supreme Court said (the italics are in the original):
The MHA draws a clear distinction between being actually detained, being liable to be detained, and being neither. A patient who is detained in hospital under compulsory powers such as a hospital order, including a restriction order, is actually detained. A hospital order or other compulsorily detained patient who is granted leave of absence under section 17 of the MHA remains “liable to be detained” (see section 17(1)). A patient who is released from hospital under a community treatment order under section 17A is not liable to be detained (see section 17D(2), as inserted by section 32(2) of the 2007 Act). But a restricted patient who is granted a conditional discharge remains liable to be detained: this much appears from section 42(2), which states that a restricted patient who is absolutely discharged ceases to be liable to be detained, with the clear implication that a restricted patient who is conditionally discharged remains liable to be detained. …
… “[D]ischarge” in sections 42(2) and 73(2) when referring to the conditional discharge of restricted patients, cannot mean discharge from the liability to be detained, because the patient remains liable to be detained. It must therefore mean discharge from the hospital in which the patient is currently detained. …
For completeness, here’s what s42(2) says:
At any time while a restriction order is in force in respect of a patient, the Secretary of State may, if he thinks fit, by warrant discharge the patient from hospital, either absolutely or subject to conditions; and where a person is absolutely discharged under this subsection, he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.
I’m wondering about it today as it came up in DB v Humber Teaching NHS Foundation Trust [2026] UKUT 57 (AAC) (in which the Upper Tribunal decided that you can be conditionally discharged to remain informally, despite the Supreme Court’s conclusion above):
[Section 131] section deals with informal admissions. Subsection (1) deals with two possibilities: (a) a patient who is admitted informally: and (b) a patient who remains informally after ceasing to be liable to be detained. If DB were to remain informally in hospital once the conditional discharge took effect, he would technically be admitted informally under possibility (a). Although he would in practice remain in the hospital, possibility (b) would not apply, because he would not cease to be liable to be detained: see M at [18].
The idea of a conditionally discharged patient still being “liable to be detained” doesn’t strike me as odd in itself. They’re still subject to a hospital order (or equivalent) and the main effect of such an order is to authorise their detention. It just so happens that the patient is for the time being excused from hospital at the pleasure of the SofS.
No doubt it could have been drafted in other ways - eg as the suspension of the whole effect of the hospital order, or (as with CTOs) just the suspension of the managers’ power to detain. But the way the drafters chose to do it seems perfectly reasonable and comprehensible.
Likewise, the idea in s72 and elsewhere of a patient’s condition justifying them being made liable to be detained in a hospital is also quite comprehensible.
As you say, it only got complicated when the legislation was amended in 1982 to allow restricted patients to apply to the Tribunal, because that introduced the tension between the words of what are now ss42 and 72.
But, for what it’s worth, I doubt it was inadvertent. The drafters were clearly aware that the Act classed CD patients as still liable to be detained - hence the provision in s56(3) saying that Part 4 applies to all patients liable to be detained except (inter alia) those conditionally discharge.
My guess is they concluded it was more complication that it was worth to change the language of the conditional discharge provisions when the intended meaning was plain and obvious thanks to what became s73:
(1) Where an application is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to the tribunal shall direct the absolute discharge of the patient if—
(a) the tribunal is not satisfied as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and
(b) the tribunal is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.
(2) Where in the case of any such patient as is mentioned in subsection (1) above the Tribunal are satisfied as to the matters referred to in paragraph (a) of that subsection but not as to the matter referred to in paragraph (b) of that subsection does not apply the tribunal shall direct the conditional discharge of the patient.
As they were amending the 1959 Act at the time, they were probably trying to draft the required changes in a way that preserved the original scheme of the legislation as much as possible.
I’m not sure I see the problem. I have always taken ‘liable to be detained’ as meaning something like ‘currently in the community but subject to the possibility of being recalled and readmitted compulsorily without a fresh admission application’. This would apply to CD patients as much as to s.17 patients. Such a patient could indeed be admitted to hospital informally but could then be subject to recall to formal detention, possibly without leaving the hospital bed, as is implicit in the UT ruling. Or have I missed something?
The anomaly is surely patients under a CTO, who can also be recalled and readmitted without a fresh application but who are not ‘liable to be detained’. That’s evidently what the drafters intended but I don’t know why their status is different to that of CD patients. (Does Richard remember how that came about?)
It’s just that the tribunal, when conditionally discharging, usually decides that it’s not appropriate that you remain liable to be detained, but you nevertheless remain liable to be detained.
OK, that’s baffling. The statutory language suggests that the tribunal should grant an absolute discharge unless they are satisfied the patients needs to be liable to be detained i e. subject to CD. Patients do (occasionally) get absolute discharges. What you describe seems self-contradictory.
I have never represented a restricted patient so haven’t experienced this form of words, & can’t add anything useful I’m afraid.
I don’t remember for sure, but I don’t recall there being any particular significance to the difference. I think it was just a more modern (ie explicit) way of expressing the same idea - not detainable for now, but with the possibility of being detained again without a new application/order.
