I have a client who is under Section 2 due to expire monday at midnight.
The panel advised that they do not find nature or degree. In relation to risks dont find health and protection of others namely arguments in family home in front of children can be managed in the community.
The panel advised that they would not be discharging immediately but giving a deferred discharge until monday at 5pm.
Ive not come across this before but dont beleive its legally right as of today she does not meet the Mental Health Act Criteria therefore how can she continue to be detained for another 4 days.
I’ve come across deferred discharge in the case of restricted patient and aftercare arrangements.
From what I see the tribunal does have the power under S72(3) for unrestricted patients.
H Nicky, the Tribunal have the right to use deferred discharge but not hospital managers.
FTT has power to delay discharge to a set date in the future - I’m sure there’ll be written reasons in the decision why they chose to delay rather than immediately discharge (in my experience this gives time for either a care package or follow-up by CMHT).
For example, the Tribunal may have found that risk doesn’t make detention necessary subject to follow-up and oversight of outpatient services.
I think there are two possible situations:
There is some missing element of aftercare (or something else) which is a prerequisite for discharge, and without which the detention criteria would continue to be met.
a. If there is doubt about its availability then the tribunal should adjourn rather than defer discharge (this was the H v Ashworth scenario).
b. If it’ll definitely happen by some future date then deferral would be justified.
All necessary aftercare is in place, and so the detention criteria are already not met, but the tribunal want to defer for some other reason. This seems to be your situation. For example they might defer from Friday afternoon to Monday morning to avoid the patient celebrating by getting drunk over the weekend, or to ensure that the team is fully informed. It’s more of a grey area, but I don’t think has ever been challenged. If you believe it’s always unlawful, or that it’s unlawful in your specific case, then definitely challenge it.