Conditional discharge: a new order?

The government has been considering amending the Mental Health Legislation for many years. The new legislation finally appeared as the Mental Health Act 2007, which necessitated a new Code of Practice.

Before the new Code was published, the old Code provided no express guidance as to whether hospital managers have the power to make an order for deferred discharge or 'conditional' discharge (in the sense of discharge subject to a prior condition being met). The Mental Health Act Commission in their Tenth Biennial Report had made it plain that hospital managers exercise options similar to a Mental Health Review Tribunal (MHRT) and therefore could order, among other things, such conditional discharge.

Some commentators had taken a different view. Reference was made to the dicta of Jackson J in R (SR) v Huntercombe Hospital Maidenhead [2005] EWHC 2361 (Admin), in particular:

'The Claimant's discharge was not made conditional upon the preparation of an aftercare package. Indeed the Managers would have had no power to make such a conditional order'.

Discharge subject to condition precedent

While at first glance this seems to support a suggestion that hospital managers may not make an order for conditional discharge, it misunderstands the context in which Mr Justice Jackson made those comments.

In the SR case the hospital managers had met to review the patient's detention following receipt of a barring order from her responsible medical officer (RMO) issued as a result of the application by her nearest relative to discharge her from detention.

The managers had considered the dangerousness test set out in s.25 and as explained in R (Huzzey) v Riverside Mental Health NHS Trust [1998] 43 BLMR 167, and concluded that the evidence before them did not support this. They therefore ordered discharge.

This discharge decision was challenged, among other things, on the basis that 'the Managers failed properly to particularise the details of the aftercare package upon which the Claimant's discharge was conditional' [sic].

Although the challenge was successful on alternative grounds, Jackson J was able to give this particular ground short shrift: the managers had no power to particularise the aftercare. They could therefore not order conditional discharge in the sense of an order that requested aftercare package specified by them to be implemented and continued. Aftercare is the responsibility of the local authority and PCT pursuant to s.117. The managers have no jurisdiction to specify this and thus no power to make an order requiring a particular aftercare package.

However, this dicta does not prohibit discharge subject to a condition precedent.

The challenge in SR was not directed at the legality of a conditional order being made per se, nor was there any argument as to whether, in general, hospital managers can make orders for discharge which are conditional upon some condition precedent being met. The dicta simply addressed the specified ground of challenge. It would be taking the judge's comments out of context to suggest that they are general authority for the proposition that conditional discharge (in the sense of a condition precedent) may never be ordered by hospital managers. The comment is furthermore, obiter dicta, as no such order had in fact been made by the managers.

There is in principle no reason why discharge should not be ordered subject to a condition precedent. A patient may well have improved so as to justify discharge if particular support is available. On the other hand, without that support (perhaps particular hostel accommodation) the patient's condition may require continued detention.

New Code of Practice

However, the new Code of Practice taking account of the 2007 Act, published in May 2008 and in force since 3 November 2008, seems to take a different view.

Paragraph 31.38 of the Code provides: 'If panels conclude that the patient ought to be discharged but practical steps to put aftercare in place need to be taken first, they may adjourn the panel for a brief period to enable that to happen before formally discharging the patient. Alternatively, they may order the patient's discharge from a specified date in the future. They may not discharge patients provisionally, but defer the final decision to discharge until certain conditions have been met'.

This paragraph seems to have no basis in law and indeed runs directly counter to the view expressed in the report (see para.4.92). Although it would usually be better to adjourn the hearing to a specified date rather than seeking to make a conditional order, it is difficult to see the legal basis for the prohibition suggested by the Code.

As a matter of both principle and law, there is no reason why hospital managers should not order discharge subject to some condition precedent - even if that is not necessarily the best practice, which would be better served by adjourning.

Nevertheless, given the status of the Code of Practice following R (on the application of Munjaz) v Mersey Care NHS Trust [2005] UKHL 58, hospital managers would be well advised to avoid conditional discharge.

In Munjaz the House of Lords held that the Code of Practice should be followed unless there were cogent reasons not to. It is also difficult to anticipate cases where it would be more appropriate to order conditional discharge rather than simply to adjourn.