Mental Health (Amendment) Act 1982

Section 28(4).

SCHEDULE 1 Discharge of Restricted Patients

Preliminary

1 In this Schedule—

• " restricted patient " means a patient who is subject to a restriction order or restriction direction ;

• " the relevant hospital order " and " the relevant transfer direction ", in relation to a restricted patient, mean the hospital order or transfer direction by virtue of which he is liable to be detained in a hospital;

• " hospital " includes a mental nursing home.

Right to apply to Mental Health Review Tribunal

2 A restricted patient detained in a hospital may apply to a Mental Health Review Tribunal—

(a) in the period between the expiration of six months and the expiration of twelve months beginning with the date of the relevant hospital order or transfer direction ; and

(b) in any subsequent period of twelve months.

Reference by Secretary of State

3 (1) The Secretary of State may at any time refer the case of a restricted patient to a Mental Health Review Tribunal.

(2) The Secretary of State shall refer to a Mental Health Review Tribunal the case of any restricted patient detained in a hospital whose case has not been considered by such a tribunal, whether on his own application or otherwise, within the last three years.

(3) The Secretary of State may by order vary the length of the period mentioned in sub-paragraph (2) above.

(4) Any reference under sub-paragraph (1) above in respect of a patient who has been conditionally discharged and not recalled to hospital shall be made to the tribunal for the area in which the patient resides.

Discharge of patients

4 Section 123(1) of the principal Act shall not apply in the case of a restricted patient except as provided in paragraphs 5 and 6 below.

5 (1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to such a tribunal, the tribunal shall direct the absolute discharge of the patient if satisfied—

(a) as to the matters mentioned in paragraph (b)(i) or (ii) of section 123(1) of the principal Act; and

(b) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

(2) Where in the case of any such patient as is mentioned in sub-paragraph (1) above the tribunal are satisfied as to the matters referred to in paragraph (a) of that sub-paragraph but not as to the matter referred to in paragraph (b) of that sub-paragraph the tribunal shall direct the conditional discharge of the patient.

(3) Where a patient is absolutely discharged under this paragraph he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.

(4) Where a patient is conditionally discharged under this paragraph—

(a) he may be recalled by the Secretary of State under subsection (3) of section 66 of the principal Act as if he had been conditionally discharged under subsection (2) of that section ; and

(b) the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the tribunal or at any subsequent time by the Secretary of State.

(5) The Secretary of State may from time to time vary any condition imposed (whether by the tribunal or by him) under sub-paragraph (4) above.

(6) Where a restriction order in respect of a patient ceases to have effect after he has been conditionally discharged under this paragraph the patient shall, unless previously recalled, be deemed to be absolutely discharged on the date when the order ceases to have effect and shall cease to be liable to be detained by virtue of the relevant hospital order.

(7) A tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to their satisfaction; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient's case comes before the tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this paragraph can be given.

(8) This paragraph is without prejudice to section 66 of the principal Act (termination of restriction orders and absolute or conditional discharge by the Secretary of State).

6 (1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction direction, or where the case of such a patient is referred to such a tribunal, the tribunal—

(a) shall notify the Secretary of State whether, in their opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged under paragraph 5 above ; and

(b) if they notify him that the patient would be entitled to be conditionally discharged, may recommend that in the event of his not being discharged under this paragraph he should continue to be detained in hospital.

(2) If in the case of a patient not falling within sub-paragraph (4) below —

(a) the tribunal notify the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged ; and

(b) within the period of ninety days beginning with the date of that notification the Secretary of State gives notice to the tribunal that the patient may be so discharged,

the tribunal shall direct the absolute or, as the case may be, the conditional discharge of the patient.

(3) Where a patient continues to be liable to be detained in a hospital at the end of the period referred to in sub-paragraph (2) (b) above because the Secretary of State has not given the notice there mentioned, the managers of the hospital shall, unless the tribunal have made a recommendation under sub-paragraph (1)(b) above, transfer the patient to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed.

(4) If, in the case of a patient who is subject to a transfer direction under section 73 of the principal Act, the tribunal notify the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged, the Secretary of State shall, unless the tribunal have made a recommendation under sub-paragraph (1)(b) above, by warrant direct that the patient be remitted to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed.

(5) Where a patient is transferred or remitted under sub-paragraph (3)or (4) above the relevant transfer direction and the restriction direction shall cease to have effect on his arrival in the prison or other institution.

(6) Sub-paragraphs (3) to (8) of paragraph 5 above shall have effect in relation to this paragraph as they have effect in relation to that paragraph, taking references to the relevant hospital order and the restriction order as references to the transfer direction and the restriction direction.

(7) This paragraph is without prejudice to sections 75 and 76 of the principal Act and sections 26 and 27 of this Act (termination of transfer directions and return to prison etc. of transferred prisoners) in their application to patients who are not discharged under this paragraph.

Further consideration of case of conditionally discharged patient

7 (1) Where a restricted patient has been conditionally discharged under this Schedule or under section 66(2) of the principal Act and is subsequently recalled to hospital—

(a) the Secretary of State shall, within one month of the day on which the patient returns or is returned to hospital, refer his case to a Mental Health Review Tribunal; and

(b) paragraph 2 above shall apply to the patient as if the relevant hospital order or transfer direction had been made on that day.

(2) Where a restricted patient has been conditionally discharged as aforesaid but has not been recalled to hospital he may apply to a Mental Health Review Tribunal—

(a) in the period between the expiration of twelve months and the expiration of two years beginning with the date on which he was conditionally discharged ; and

(b) in any subsequent period of two years.

(3) Any application under sub-paragraph (2) above shall be made to the tribunal for the area in which the patient resides.

(4) Paragraphs 5 and 6 above shall not apply to an application under sub-paragraph (2) above but on any such application the tribunal may—

(a) vary any condition to which the patient is subject in connection with his discharge or impose any condition which might have been imposed in connection therewith; or

(b) direct that the restriction order or restriction direction to which he is subject shall cease to have effect;

and if the tribunal give a direction under paragraph (b) above the patient shall cease to be liable to be detained by virtue of the relevant hospital order or transfer direction.

Procedure and composition of tribunals

8 (1) Rules under section 124 of the principal Act may make provision as to the procedure to be adopted in cases concerning restricted patients and, in particular—

(a) for restricting the persons qualified to serve as president of a tribunal for the consideration of any application or reference relating to a restricted patient;

(b) for the transfer of proceedings from one tribunal to another in any case where, after the making of a reference or application in accordance with paragraph 3(4) or 7(3) above, the patient ceases to reside in the area of the tribunal to which the reference or application was made.

(2) Paragraph 6 of Schedule 1 to the principal Act shall have effect subject to any rules made by virtue of sub-paragraph (1)(d) above.

Persons treated as restricted patients

9 (1) Subject to the provisions of this paragraph, the foregoing provisions of this Schedule shall have effect in relation to a person to whom this paragraph applies as they have effect in relation to a restricted patient.

(2) This paragraph applies to any person who—

(a) is subject to a direction which by virtue of section 71(4) of the principal Act has the same effect as a hospital order and a restriction order ; or

(b) is treated as subject to a hospital order and a restriction order by virtue of an order under section 5(1) of the [1964 c. 84.] Criminal Procedure (Insanity) Act 1964 or section 6 or 14(1) of the [1968 c. 19.] Criminal Appeal Act 1968 ; or

(c) is treated as subject to a hospital order and a restriction order or to a transfer direction and a restriction direction by virtue of section 87(2) of the principal Act, section 37(2) of this Act or section 73(2) of the [1960 c. 61.] Mental Health (Scotland) Act 1960.

(3) In the case of a person within paragraph (a) of sub-paragraph (2) above references in this Schedule to the relevant hospital order or restriction order shall be construed as references to the direction referred to in that paragraph.

(4) In the case of a person within paragraph (b) of sub-paragraph (2) above references in this Schedule to the relevant hospital order or restriction order shall be construed as references to the order under the provisions mentioned in that paragraph.

(5) Where a person who is treated as subject to a hospital order and a restriction order by virtue of an order under section 5(1) of the Criminal Procedure (Insanity) Act 1964 does not exercise his right to apply to a Mental Health Review Tribunal in the period of six months beginning with the date of that order the Secretary of State shall at the expiration of that period refer his case to a tribunal.

(6) For the purposes of sub-paragraph (5) above a person who applies to a tribunal but subsequently withdraws his application shall be treated as not having exercised his right to apply, and where a patient withdraws his application on a date after the expiration of the period there mentioned the Secretary of State shall refer his case as soon as possible after that date.

(7) In the case of a person within paragraph (c) of sub-paragraph (2) above references in this Schedule to the relevant hospital order, the relevant transfer direction, the restriction order or the restriction direction or to a transfer direction under section 73 of the principal Act shall be construed as references to the hospital order, transfer direction, restriction order, restriction direction or transfer direction under that section to which that person is treated as subject by virtue of the provisions mentioned in that paragraph.