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R (B) v MHRT [2003] EWHC 815 (Admin)

It is lawful to defer discharge in dangerous criterion cases where the deferral is relevant to considerations of dangerousness

Facts

The nearest relative had applied for the patient's discharge under s23 and had been barred by the RMO under s25 on the grounds that, if discharged, she would be likely to act in a manner dangerous to herself or others (the dangerousness criterion).

The nearest relative then applied to the MHRT under s66(1))(g). The Tribunal had to consider the dangerousness criterion (along with the easier-to-satisfy standard criteria), and discharge if it were not met: s72(1)(b)(iii). They did discharge but deferred discharge under s72(3) for five weeks to allow an appropriate aftercare package to be arranged.

The Claimant argued that the power to defer for aftercare to be arranged could not lawfully be used in a dangerousness criterion case.

Decision

"It is quite clear that section 72(1)(iii) and section 72(3) must be read together. The phrase "if released" in section 72(1)(b)(iii) does not necessarily refer to immediate release. It would also take into account a future release, that is to say a release on a future date as envisaged by section 72(3). If a Tribunal, on the evidence before it, comes to the conclusion that a patient, if released immediately, would be likely to act in a manner dangerous to other persons, or to himself or herself, but that if proper aftercare arrangements are put in place that will not be the position, in my judgment, it is clear that the Tribunal may make an order for a deferred discharge under section 72(3) deferring discharge to a date when it is reasonably assured that the appropriate aftercare arrangements will be in place." There was evidence that this was the case although the Tribunal did not state it explicitly.

R (Ashworth) v MHRT; R (H) v Ashworth [2001] EWHC Admin 901 considered.

Given the short time-frame, the claim was now academic so permission was refused.

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