Nigel Turner's HyperGUIDE to the Mental Health Act

Section 23

Discharge from Detention or Guardianship

The periods for which a person can be detained in hospital, or subject to Guardianship, under the various Sections of the Act, may simply run their course and then lapse. Active steps have to be taken to instigate a new Section or renew the existing one. However, Section 23 sets out who can end a Section before it has run its full course. It should be noted that the term "discharge" in the Act is used to mean the ending of a Section by one of the people/bodies authorised to do so. This is not necessarily the same as discharge from hospital. It is possible for someone to be discharged from Section, but then to remain in hospital as a voluntary patient.

People Detained in Hospital for Assessment and/or Treatment

An "order for discharge" from the Section can be made by:

The Responsible Medical Officer [RMO], who should keep the need for detention in hospital under review and end it when no longer required.
The Mental Health Act Managers [MHAM], who will normally consider whether to use this power on appeal by the patient. Patients must, as a matter of course, be informed of their right to appeal to the MHAM where the Managers have an unrestricted power to discharge. The MHAM will convene a Managers' Hearing on appeal, and also when required to do so in accordance with the Act or the Code of Practice, for example following the issuing of a barring certificate. However, there is nothing to stop the MHAM reviewing a person's detention, and perhaps ending it, in the absence of an appeal from the patient. The MHAM also have to review a person's detention when the RMO submits a renewal report under Section 20.
The Nearest Relative can also order discharge, but has to give the MHAM 72 hours' written notice of an intention to do this. The RMO can then issue a "barring certificate" to prevent discharge if certain conditions are met.
The Mental Health Review Tribunal [MHRT] can discharge on appeal, following a formal hearing of the Tribunal.

Restrictions on Discharge

The people/bodies listed above do not have a free hand to discharge patients who are subject to a restriction order under Section 41 or who have been transferred from prison under Section 47/48/49 arrangements. Nor can Section 23 powers be used in respect of people who are still under the jurisdiction of a Court under Section 35, Section 36, or Section 38.

Barring Certificates

Section 25 limits the Nearest Relative's power to order discharge. The Nearest Relative cannot make an order for discharge with immediate effect, but has to give 72 hours' notice. During this time, the Responsible Medical Officer may provide the Mental Health act Managers with a report certifying that:

the patient, if discharged, would be likely to act in a manner dangerous to other persons or to her/himself.

In such cases, the Nearest Relative's proposed order for discharge has no effect; the patient remains detained. The Nearest Relative cannot properly make another order for discharge for another 6 months (even if the Section is changed or renewed during this time). In cases where the patient is detained for treatment, the Mental Health Act Managers must tell the Nearest Relative that a barring certificate has been issued, and the Nearest Relative then has a right to appeal to the Mental Health Review Tribunal for the patient to be discharged.

Termination of Guardianship

Guardianship can be ended by the Responsible Medical Officer, the responsible local social services authority, or the Nearest Relative.

Who can exercise a Body's Section 23 Powers

Where a body, such as the Mental Health Act Managers, has a power to discharge under Section 23, at least three members of that body are required to take part in the decision.

An Historical Note

Due to an error in the drafting of the NHS and Community Care Act 1990, the Mental Health Act was amended in such a way as to define the Mental Health Act Managers, in the case of a hospital run by an NHS Trust, as the individual Non-Executive Directors of the Trust, rather than the Trust as a "corporate" body. This meant that the task of Managers' Hearings could no longer be delegated to a committee which drew in additional members, and that all hearings had to be heard by at least 3 of the Non-Executive Members. This restriction on numbers caused havoc during 1993 and early 1994, in areas where there are large numbers of detained patients and appeal hearings. The status quo, allowing a larger committee to be delegated to act as the Managers, was restored by a "one line" Act of Parliament, the Mental Health (Amendment) Act 1994.

Overview page. Contents page. Introduction page.

This page last revised 9 April 1996
While every effort has been made to ensure the accuracy and reliability of information in these pages, they are not intended to be relied upon as an authoritative statement of the law. The author cannot accept liability for errors or omissions.