I am currently working with a service user who is subject to s37/41 and refusing the proposed level of supported living and as such the tribunal service will not conditionally discharge.
Does this essentially result in him being an inpatient until either he or the MHRT change their mind? It feels a little stuck.
A decision to conditionally discharge a restricted patient will primarily be determined by the risk to the public. If it considered that a given level of supported accommodation is required to oversee the person’s mental health, and by direct implication, protect the public, then a conditional discharge is unlikely to be granted without that level of provision.
A conditional discharge should take into account if it is going to cause a breach of Art. 5 of the HRA (1998) and if so, you would require a DoLS as well to begin with as outlined with the MM Case.
Was a trial leave period tried via s. Section 41(3)(c)(i) of the Mental Health Act 1983? If so, this would have highlighted issues to begin with; given the support that the patient requires.
My understanding is that if a patient who is on a s.37/41 can be given long term leave for various reasons, so that it does not breach MM situation. Thus, has this been considered.
A s.37/41 may well take into account that it ‘is necessary of the public from serious harm,’ how this also needs to be contextualised as to the circumstances of the offense and how it generated and to whom/them.
If the risks are such that they can be managed into the community services, then the patient should no longer be detained in the hospital and be forced to leave.
There is obviously a difference a difference to what a patient wants and what the statutory services want. Hence the appeals process. Hence, the MHRT should discharge the patient onto conditional discharge and that is the end of the matter. How you get the patient to leave is down to local policies.
If there is a material error of law, then it is down to the patient’s lawyer to seek a remedy from the upper tier. One does not keep a patient in a hospital facility if there is no longer a need.