Good morning friends- we have a forthcoming restricted hearing and the RC is recommending a deferred conditional discharge. However no accommodation has been identified / no overnight leave etc . Has anyone had any experience in such circumstances; will the tribunal agree to a deferred discharge . The client is an elderly person with a lot of physical health issues and considered low risk. I don’t think there are any arrangements in place in the community at this stage. Your thoughts are most welcome. Thank you
With no accommodation, no leave? The MHRT can defer but will rebuke you in asking why hasn’t the service provider not been proactive in at least having a contigency plan of some kind.
Have some good excuses available…
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It all depends. If the patient would himself be ready for conditional discharge if the aftercare were already available, then the tribunal should agree, though if there’s doubt about the availability of necessary after-care then it should adjourn (see R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923 and SS v Cornwall Partnership NHS Foundation Trust [2023] UKUT 258 (AAC)). If leave to any future placement were considered necessary to test the patient, the tribunal would probably count that as further treatment and not discharge.
Thank you so much, we are appointed under rule 11 7 b too so it makes our position a little difficult as we don’t have any instructions. The team are actively seeking accommodation, but there have been obstacles- including the client not agreeing to placements. I have no idea which way it will go.
Thank you so much Jonathan, always so helpful with the case law! I’ll be using this to prep.
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Hiya! They key here is whether outstanding testing is “desirable” or “necessary”. As Jonathan says, if it’s a necessary part of treatment then the Tribunal cannot defer a discharge as the person needs to be ready on the day of the hearing.
If the doctor is arguing for a DCD I would back them up. Clarify with them whether testing is “necessary” or not. You can also remind them that a patient can still be given overnight leave to a placement whilst on a DCD and that this is “usual practice” (see: pg 443 of Jones 26th edn) - “leave of absence, with the consent of the Secretary of State is the normal method designed by the Act to facilitate the patient’s discharge from hospital”
What actually makes something “testing” therefore necessary vs “a transition” therefore desirable is the likelihood of something going wrong. If the RC is sure that the patient will continue to remain compliant and low risk, then the DCD can be given and discharge facilitated by way of a transition into the community.
Refer the Tribunal to the powers open to them during the period of deferment. See para 98 of R(IH) v SSHD (CoA, not HoL)
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Hi Zac, thank you so much for expertise help and guidance. I always find your practical pointers really useful in how to deal with the case 
Im a lot clearer now on how to manage this ! Really helpful,thank you!
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