I have been asked by another solicitor to post the following query anonymously:
In regards to section 75(2) of the Mental Health Act 1983 as amended, within the 23rd edition of Jones Mental Health Act Manual page 498 it states the following:
“A patient is conditionally discharged for the purpose of calculating time under this provision, not on the date when the tribunal decided that he be discharged subject to conditions being met, but on the date when he actually leaves hospital once the conditions had been met: see R. v Cannons Park Mental Health Tribunal Ex. p. Martins (1995) 26 B.M.L.R 134 where Ognall J. followed Mann J.’s finding in Secretary of State for the Home Department v Mental Health Review Tribunal for the Mersey Regional Health Authority (1986) 3 All E.R 233 at 237 that:
“The word ‘discharge’ as employed in sections 72 to 75 of the Act of 1983 means, and in my judgement can only mean, release from hospital. The release may be absolute or it may be conditional”
My client achieved a conditional discharge, which was deferred to allow for conditions to be met. A position statement was received in which the detaining authority confirmed all was in place to allow for the conditional discharge to made effective. The panel signed off the conditional discharge, for it be made effective immediately. In the meantime the client did not wish to leave hospital as he was concerned about Covid and felt that he would be safer in hospital during the second lockdown. The ward is an open ward and it was agreed he could remain as an informal patient during this lockdown period. He has not left the hospital since the granting of the conditional discharge.
For calculation purposes when in your view will the conditional discharge start? Is it at point the conditional discharge is granted (signed off) or when he physically leaves hospital?
I think it will be difficult to persuade future tribunals that his C/D date is actually later than it says on the decision and from memory Jones used to say something after the Canons Park case to the effect that ‘Lucy Scott- Moncrieff assures me that , in practice, the date of the decision is always treated as the date of C/D’ but I am prepared to be corrected. Given the two year eligibility period will it make much difference?
Johnathan in my opinion discharge takes place when the Panel have agreed the conditions for the deferred discharge are met. The MoJ in my opinion will accept the concerns by the patient and will usually agree on informal admission until the clinical team are satisfied the patient can be safely discharged. My past experience is that as long as the MoJ have a care plan and updates on the patients progress, then informal admission is acceptable, therefore the discharge is at the time the Panel agreed the conditions are met. The patient is entitled to Tribunal after the first 12 months, then every 2 years, but the SoS has a discretionary power to refer a patient for a Tribunal.
I came across a case at my previous firm (not my client but I was providing a second opinion) where the patient had been granted a DCD, when a placement was ready the RC wrote to the FTT to let them know the CD could take place. The patient went to the placement and didn’t like it so came back hours later. In the meantime the FTT had granted the CD. He was then referred to the FTT under s.71 as the SSJ wanted the situation to be reviewed as the patient had stopped taking his medication. Their position was that the patient had not been conditionally discharged and therefore the FTT should reconvene and cancel the DCD. They relied on the Canon’s Park case. The SSJ didn’t try to recall him for this reason.
We asked the same panel to reconvene because if the SSJ meant to ask for the DCD to be reviewed, to ask for another referral is wrong in law. To my memory (and i have contacted the fee earner to see if he could post something here that will be more helpful, as i may be wrong) the FTT held that the patient had been conditionally discharged and was therefore remaining as an informal patient.
For that reason, I would say it happens when the FTT decide that the arrangements have been made. A literal interpretation of s.73 appears to support that in any event. The Tribunal “shall” direct the CD of a patient where s.73(2) is satisfied. They can defer the direction “until such arrangements as appear to the tribunal to be necessary for that purpose have been made to its satisfaction” under s.73(7). It appears, on the face of s.73(7), that the direction for CD must become effective once they have declared that they are so satisfied.
Having said that, I remember researching for the case above and remember being struck at just how contentious the SSJ had made the issue seem.