Until recently I was only aware of a paragraph or two about this, but there is some quite extensive guidance in Mental Health Casework Section, ‘Guidance: Section 42 Discharge’ (March 2022). I’ve updated the Section 37/41: hospital order with restrictions page accordingly. The relevant parts are below.
In relation to conditional discharge:
6.2 In order to agree discharge with conditions, the SoS must normally be satisfied that the patient within the last 6-12 months:
- Has presented as stable in hospital with no recent violent, aggressive or threatening conduct; consumption of alcohol or illicit drugs; sexually inappropriate behaviour; instances of self-harm; escaping from hospital or absconding whilst on community leave; criminal activity including any charges and/or subsequent, convictions sentences; trafficking of contraband items with other patients;
- Has willingly engaged with treatment and complied with the need to take any medication so as to have some level of insight into the importance of managing their disorder;
- Have completed work addressing their index offence and the part played by their disorder in it, either on this admission or on previous admissions;
- Has used leave appropriately including spells involving overnight stays in the community;
- Has not attempted to contact any registered victims and understands and appreciates conditions of discharge which may be imposed to protect their interests;
- Appreciates that any change in the nature or degree of their condition which increases their risk to others may result in them being recalled to hospital;
- Has not self-harmed or has addressed the reasons for this in treatment;
- Has, if recalled to hospital, addressed the circumstances behind that decision; and
- Understands the reasons for the proposed discharge conditions.
6.3 In addition, the SoS will need to be satisfied that the arrangements for the safe management and aftercare are in place including appointed RC and other Team members and a level of professional support commensurate with the patient’s needs. This should include the level of management under MAPPA where appropriate.
6.4 In setting the conditions of discharge, the SoS will ensure that they are reasoned and proportionate and address the risk the patient still presents because of their disorder to the public including, specifically, any victims of their offending (see annex B).
In relation to absolute discharge, the guidance sets out three pages of guidance. It separates applications for discharge into two categories:
- Compassionate grounds (para 6.7(a)).
a. Applications where the patient has a terminal illness.
b. Applications where the patient is suffering from another condition (often a progressive condition) which will impair their everyday functioning so seriously for the rest of their lives, that the risks associated with their mental disorder are assessed as negligible.
- Other Applications (para 6.7(b)).
Further details are provided for each category, and in relation to “Other Applications” the guidance states:
If the Secretary of State is satisfied that the patient is no longer suffering from a mental disorder, he should discharge the patient, but the discharge can be conditional or absolute. Alongside the individual needs of the patient, the SoS will continue to give due consideration to risk and the duty of public protection.
The following is not an exhaustive list, however it is indicative of the evidence the Secretary of State will consider positively when making an assessment of an application for absolute discharge.
There must be evidence that the discharged patient:
- Has willingly engaged with treatment and demonstrated an ability to successfully manage the disorder (accepting that most patients remain mentally disordered to some extent) whilst in hospital and in the community;
- Accepts that s/he does not need to be subject to the (Hospital and) Restriction Order to receive treatment;
- Has not recently been disruptive because of their disorder;
- Understands how the disorder(s) affects them and the sort of risks it creates when control measures are removed;
- Understands and appreciates the seriousness of the index offence and the link between the disorder and offending;
- Understands and accepts the need to avoid future offending behaviour and has, in the past, accepted treatment designed to address the circumstances of the index offence);
- Recognises the harm they caused to victims of the crime and has shown some recognition, remorse or regret;
- Has not attempted to contact the victim(s) of their index offence, or enter exclusion zones where expressly forbidden to do so;
- Is not subject to another form of legal Order or control (SOPO, DOLS, Restraining etc) where the mental disorder featured as part of the reasoning behind its implementation; and
- Has not been recalled to hospital following conditional discharge, within the last five years.
In addition for a detained patient:
- That they cannot be conditionally discharged instead as a first consideration;
- Has used community leave without concern;
- Displays a very low risk of harming others in the future because of their disorder and appreciates what will happen when there is no longer a legal requirement for treatment, supervision and support (including the need to continue with any medication prescribed for the disorder); and
- Cannot have their Restriction Order lifted.