Discharge by Tribunal
A conditional discharge must be granted where:
- The 's3' criteria for detention are no longer met (i.e. nature/degree/health/safety/others). See s72(1)(b).
- It is appropriate for the patient to remain liable to be recalled to hospital for further treatment. See s73(1)(b).
As the onus is on the detaining authority to satisfy the Tribunal of the former consideration, the actual wording of the Act is slighly more convoluted. See R (H) v MHRT North & East London Region  EWCA Civ 415 and the subsequent Mental Health Act 1983 (Remedial) Order 2001.
If liability to be recalled is not appropriate, an absolute discharge must be granted instead. There is no general discretion in relation to discharge in restricted cases.
Discharge by Ministry of Justice
The Justice Secretary can discharge under s42(2) either absolutely or conditionally. No criteria are set out - the Act says "if he thinks fit" - though obiously similar considerations would apply. A Ministry of Justice discharge would follow a recommendation from the patient's RC, but such discharges are relatively rare.
Invariably, conditions are imposed on the patient at the time of discharge (Under s73(4)(b) by the tribunal or under s42(2) by the Ministry of Justice).
Usual conditions include the following, depending on the nature of the case:
- Residence at a particular address
, or "as directed by the RMO". *
- Co-operation with supervision by a community RMO and a social supervisor.
Other conditions often imposed include:
- Abstinence from illegal drugs and excessive consumption of alcohol
- Urine drug screens
- Compliance with treatment (albeit on a voluntary basis: see R (SH) v MHRT  EWHC 884 (Admin))
- Exclusion zones
- Not to contact victim or victim's family
*See: Colin Harnett, 'Changing discharge conditions - residence' (Dear Colleague letter from Head of Mental Health Casework Section, 17/12/15). In response to a case in which the MOJ had not closely managed a patient's movements (it had not registered a change of address), the following policy will apply from 4/1/16: (1) All conditionally-discharged patients will have a condition giving an actual residence address, and RCs will not have a discretion to move patients without providing 14 days' notice; (2) If the tribunal does not specify an address the MOJ will add one; (3) Existing conditions will be re-examined on receipt of conditionally-discharged patient reports and conditions may be amended (to add an address or remove the RC's discretion to move the patient); (4) Discharges by the MOJ will also accord with this policy; (5) Dialogue with the MOJ before the 14-day point is encouraged.
In relation to proposed conditions which would amount to a deprivation of liberty, see HM Prison and Probation Service, 'Mental Health Casework Section: Guidance: Discharge conditions that amount to deprivation of liberty' (January 2019).
The Tribunal can order that the conditional discharge be deferred until the conditions can be met. See deferred conditional discharge for further details.
In theory a conditionally discharged patient cannot be recalled simply for breaching a condition (contrast the position of a prisoner out on licence) as, unless in an emergency, there should be up-to-date medical evidence of mental disorder to justify recall. In practice if the RC informed the Ministry of Justice that the patient had breached his conditions and/or that there are concerns about his mental health, the Ministry of Justice would probably recall.
As a statutory safeguard for the patient, within a month of the return to hospital the case must be referred to the MHRT by the Ministry of Justice (s75). This must be done with "reasonable despatch having regard to all the material circumstances" (R (Rayner) v Secretary of State for Justice  EWCA Civ 176). The hearing must be heard between 5 and 8 weeks from the reference (Tribunal rule 37).
Subsequently obtaining an absolute discharge
If the restriction order was time-limited, then the restrictions will cease at the specified time; also, if the patient has determinate sentence, then the restrictions will cease on the release date. If a patient has been conditionally discharged by the time the restrictions cease, then he is automatically absolutely discharged on that date: s42(5)
Any conditionally-discharged patient can apply to the Tribunal for an absolute discharge - not during the first twelve months after conditional discharge; but once in the second 12-month period after conditional discharge; and once in each 2-year period thereafter. The Tribunal could also vary or add to the conditions: s75(2),(3)
Relevant links can be found on the Ministry of Justice website.