MHA 1983 s73
This section gives the Mental Health Review Tribunal the power to discharge restricted hospital order patients.
Change made by Mental Health Act 2007
- Appropriate treatment test replaces treatability test and applies to all patients under long-term detention 3/11/08
Any cases with a hyperlink to this legislation will automatically be added here. There may be other relevant cases without a hyperlink, so please check the mental health case law page.
- R (IH) v SSHD  EWHC Admin 1037 — Section 73 is compatible with Article 5 ECHR: deferred conditional discharge is a provisional decision; the Tribunal can monitor progress, and reconsider and amend the decision if appropriate.
- R (P) v SSHD  EWHC 2953 (Admin) — The ECHR does not require joint MHRT/Parole Board hearings; the need for consecutive hearings does not breach Article 5(4).
- Reid v Secretary of State for Scotland  UKHL 43 — (1) Treatability test is part of admission criteria for psychopathic disorder, so entitled to discharge when it is not met; definition of treatment is wide and can include treatment only for symptoms rather than underlying disorder, e.g. anger management. (2) Decision not to discharge not irrational.
[The chapter/paragraph numbers which appear below (if any) refer to the 2008 versions of the Code of Practice and Reference Guide.]
- Reference Guide to the Mental Health Act 1983, 21. Powers of the Tribunal to discharge patients [Note that the chapter number relates to the old Reference Guide] — paragraphs 21.15 to 21.24
- Extra-statutory recommendations
Power to discharge restricted patients
73.—[(1) Where an application to [the appropriate 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 [the appropriate tribunal], the tribunal shall direct the absolute discharge of the patient if -
- (a) the [the tribunal is] not satisfied as to the matters mentioned in paragraph (b)(i)[, (ii) or (iia)] of section 72(1) above; and
- (b) the [the tribunal is] satisfied 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 subsection (1) above -
- (a) paragraph (a) of that subsection applies; but
- (b) paragraph (b) of that subsection does not apply,
the tribunal shall direct the conditional discharge of the patient.]
(3) Where a patient is absolutely discharged under this section 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 section—
- (a) he may be recalled by the Secretary of State under subsection (3) of section 42 above 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 subsection (4) above.
(6) Where a restriction order in respect of a patient ceases to have effect after he has been conditionally discharged under this section 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 [its 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 section can be given.
(8) This section is without prejudice to section 42 above.