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72.—[(1) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and—
<div class="perm">
'''Powers of tribunals'''


:(a) the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if they are not satisfied -
72.—[(1) Where application is made to [the appropriate tribunal]<ref name="TTFO">[[Transfer of Tribunal Functions Order 2008]] wef 3/11/08</ref> by or in respect of a patient who is liable to be detained under this Act [or is a community patient],<ref name="MHA">[[Mental Health Act 2007]] s1 & sch 1, s32 & sch 3, s4, s55 & sch 11; [[Mental Health Act 2007 (Commencement No.7 and Transitional Provisions) Order 2008]] wef 3/11/08</ref> the tribunal may in any case direct that the patient be discharged, and—
 
:(a) the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if [it is]<ref name="TTFO"/> not satisfied—


::(i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or
::(i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or
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::(ii) that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons;
::(ii) that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons;


:(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are not satisfied -
:(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if [it is]<ref name="TTFO"/> not satisfied—


::(i) that he is then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
::(i) that he is then suffering from [mental disorder or from mental disorder]<ref name="MHA"/> of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or


::(ii) that it is necessary for the health of safety of the patient or for the protection of other persons that he should receive such treatment; or
::(ii) that it is necessary for the health of safety of the patient or for the protection of other persons that he should receive such treatment; or
::[(iia)  that appropriate medical treatment is available for him; or]<ref name="MHA"/>


::(iii) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself.]<ref name="MHR">[[Mental Health Act 1983 (Remedial) Order 2001]]</ref>
::(iii) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself.]<ref name="MHR">[[Mental Health Act 1983 (Remedial) Order 2001]]</ref>


(2) In determining whether to direct the discharge of a patient detained otherwise than under section 2 above in a case not falling within paragraph (b) of subsection (1) above, the tribunal shall have regard—
:[(c)   the tribunal shall direct the discharge of a community patient if [it is]<ref name="TTFO"/> not satisfied—
 
::(i)   that he is then suffering from mental disorder or mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment; or
 
::(ii)   that it is necessary for his health or safety or for the protection of other persons that he should receive such treatment; or


:(a) to the likelihood of medical treatment alleviating or preventing a deterioration of the patient’s condition; and
::(iii)   that it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) above to recall the patient to hospital; or


:(b) in the case of a patient suffering from mental illness or severe mental impairment, to the likelihood of the patient, if discharged, being able to care for himself, to obtain the care he needs or to guard himself against serious exploitation.
::(iv)   that    appropriate      medical      treatment      is available for him; or


(3) A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal do not direct the discharge of a patient under that subsection the tribunal may—
::(v)    in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself.]<ref name="MHA"/>
 
[(1A)    In determining whether the criterion in subsection (1)(c)(iii) above is met, the tribunal shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).]<ref name="MHA"/>
 
(2) [...]<ref name="MHA"/>
 
(3) A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal [does not]<ref name="TTFO"/> direct the discharge of a patient under that subsection the tribunal may—


:(a) with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and
:(a) with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and
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:(b) further consider his case in the event of any such recommendation not being complied with.
:(b) further consider his case in the event of any such recommendation not being complied with.


[(3A) Where, in the case of an application to a tribunal by or in respect of a patient who is liable to be detained in pursuance of an application for admission for treatment or by virtue of an order or direction for his admission or removal to hospital under Part III of this Act, the tribunal do not direct the discharge of the patient under subsection (1) above, the tribunal may—
[(3A)   Subsection (1) above does not require a tribunal to direct the discharge of a patient just because [it thinks]<ref name="TTFO"/> it might be appropriate for the patient to be discharged (subject to the possibility of recall) under a community treatment order; and a tribunal—


:(a) recommend that the responsible medical officer consider whether to make a supervision application in respect of the patient; and
:(a) may recommend that the responsible clinician consider whether to make a community treatment order; and


:(b) further consider his case in the event of no such application being made.]<ref name="PIC">[[Mental Health (Patients in the Community) Act 1995]]</ref>
:(b)  may (but need not) further consider the patient's case if the responsible clinician does not make an order.]<ref name="MHA"/>


(4) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is subject to guardianship under this Act, the tribunal may in any case direct that the patient be discharged, and shall so direct if they are satisfied—
(4) Where application is made to [the appropriate tribunal]<ref name="TTFO"/> by or in respect of a patient who is subject to guardianship under this Act, the tribunal may in any case direct that the patient be discharged, and shall so direct if [it is]<ref name="TTFO"/> satisfied—


:(a) that he is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; or
:(a) that he is not then suffering from [mental disorder];<ref name="MHA"/> or


:(b) that it is not necessary in the interests of the welfare of the patient, or for the protection of other persons, that the patient should remain under such guardianship.
:(b) that it is not necessary in the interests of the welfare of the patient, or for the protection of other persons, that the patient should remain under such guardianship.


[(4A) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is subject to after-care under supervision (or, if he has not yet left hospital, is to be so subject after he leaves hospital), the tribunal may in any case direct that the patient shall cease to be so subject (or not become so subject), and shall so direct if they are satisfied—
(4A) [...]<ref name="MHA"/>


:(a) in a case where the patient has not yet left hospital, that the conditions set out in section 25A(4) above are not complied with; or
(5) [...]<ref name="MHA"/>


:(b) in any other case, that the conditions set out in section 25G(4) above are not complied with.]<ref name="PIC"/>
(6) Subsections (1) to [(4)]<ref name="MHA"/> above apply in relation to references to [the appropriate tribunal]<ref name="TTFO"/> as they apply in relation to applications made to [the appropriate tribunal]<ref name="TTFO"/> by or in respect of a patient.
 
(5) Where application is made to a Mental Health Review Tribunal under any provision of this Act by or in respect of a patient and the tribunal do not direct that the patient be discharged [or, if he is (or is to be) subject to after-care under supervision, that he cease to be so subject (or not become so subject)],<ref name="PIC"/> the tribunal may, if satisfied that the patient is suffering from a form of mental disorder other than the form specified in the application, order or direction relating to him, direct that that application, order or direction be amended by substituting for the form of mental disorder specified in it such other form of mental disorder as appears to the tribunal to be appropriate.
 
(6) Subsections (1) to (5) above apply in relation to references to a Mental Health Review Tribunal as they apply in relation to applications made to such a tribunal by or in respect of a patient.


(7) Subsection (1) above shall not apply in the case of a restricted patient except as provided in sections 73 and 74 below.
(7) Subsection (1) above shall not apply in the case of a restricted patient except as provided in sections 73 and 74 below.


=== Amendments ===
{{amdts}}
<references/>
Transfers from Scotland: The [[Mental Health (Patients in the Community) (Transfers from Scotland) Regulations 1996]] modified subsection (4A) which has since been repealed.


<references/>
</div>
__NOEDITSECTION__

Latest revision as of 23:36, 5 August 2015

Powers of tribunals

72.—[(1) Where application is made to [the appropriate tribunal][1] by or in respect of a patient who is liable to be detained under this Act [or is a community patient],[2] the tribunal may in any case direct that the patient be discharged, and—

(a) the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if [it is][1] not satisfied—
(i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or
(ii) that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons;
(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if [it is][1] not satisfied—
(i) that he is then suffering from [mental disorder or from mental disorder][2] of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(ii) that it is necessary for the health of safety of the patient or for the protection of other persons that he should receive such treatment; or
[(iia) that appropriate medical treatment is available for him; or][2]
(iii) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself.][3]
[(c) the tribunal shall direct the discharge of a community patient if [it is][1] not satisfied—
(i) that he is then suffering from mental disorder or mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment; or
(ii) that it is necessary for his health or safety or for the protection of other persons that he should receive such treatment; or
(iii) that it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) above to recall the patient to hospital; or
(iv) that appropriate medical treatment is available for him; or
(v) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself.][2]

[(1A) In determining whether the criterion in subsection (1)(c)(iii) above is met, the tribunal shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).][2]

(2) [...][2]

(3) A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal [does not][1] direct the discharge of a patient under that subsection the tribunal may—

(a) with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and
(b) further consider his case in the event of any such recommendation not being complied with.

[(3A) Subsection (1) above does not require a tribunal to direct the discharge of a patient just because [it thinks][1] it might be appropriate for the patient to be discharged (subject to the possibility of recall) under a community treatment order; and a tribunal—

(a) may recommend that the responsible clinician consider whether to make a community treatment order; and
(b) may (but need not) further consider the patient's case if the responsible clinician does not make an order.][2]

(4) Where application is made to [the appropriate tribunal][1] by or in respect of a patient who is subject to guardianship under this Act, the tribunal may in any case direct that the patient be discharged, and shall so direct if [it is][1] satisfied—

(a) that he is not then suffering from [mental disorder];[2] or
(b) that it is not necessary in the interests of the welfare of the patient, or for the protection of other persons, that the patient should remain under such guardianship.

(4A) [...][2]

(5) [...][2]

(6) Subsections (1) to [(4)][2] above apply in relation to references to [the appropriate tribunal][1] as they apply in relation to applications made to [the appropriate tribunal][1] by or in respect of a patient.

(7) Subsection (1) above shall not apply in the case of a restricted patient except as provided in sections 73 and 74 below.

Amendments

  1. ↑ Jump up to: 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 Transfer of Tribunal Functions Order 2008 wef 3/11/08
  2. ↑ Jump up to: 2.00 2.01 2.02 2.03 2.04 2.05 2.06 2.07 2.08 2.09 2.10 Mental Health Act 2007 s1 & sch 1, s32 & sch 3, s4, s55 & sch 11; Mental Health Act 2007 (Commencement No.7 and Transitional Provisions) Order 2008 wef 3/11/08
  3. ↑ Mental Health Act 1983 (Remedial) Order 2001

Transfers from Scotland: The Mental Health (Patients in the Community) (Transfers from Scotland) Regulations 1996 modified subsection (4A) which has since been repealed.

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