Abstract
Contrary to what people generally assume, patients leave mental hospitals, not just via self-discharge (in the case of informal patients) or discharge by the hospital (responsible clinician, hospital managers, etc.). Rather, there are other modes of leaving hospital, such as being given leave of absence, absconding or going absent without leave and transfer to another hospital. This paper briefly looks at all these modes, according to whether they are temporary or permanent, unofficial or official.
Introduction
Contrary to what people generally assume, patients leave mental hospitals, not just via self-discharge (in the case of informal patients) or discharge by the hospital (responsible clinician, hospital managers, etc.). There are other modes of leaving hospital, such as being given leave of absence, absconding or going absent without leave and transfer to another hospital. This paper briefly looks at all these modes, according to whether they are temporary or permanent and unofficial or official.
Temporary mode
Unofficially
Patients can leave hospital temporarily in an unofficial manner by absconding. Absconding means absence from hospital without medical authority (or going absent without leave) whether in hospital informally/voluntarily or is detained under the Mental Health Act 1983 (EW; hereinafter referred to as ‘MHA 1983’), as amended. Voluntary patients who abscond cannot be compelled to return or be retaken against their will – they can only be persuaded or invited to return. Compulsorily detained patients can be retaken against their will under powers granted by, for example, section 18 of the MHA 1983. Where the patient returns to hospital or is retaken and returned, he/she is deemed as having left the hospital temporarily and unofficially.
Officially
A patient may also leave hospital temporarily but in an official way, that is, with medical approval.
(a) Unrestricted patients, that is, compulsory patients who are not under a hospital order with restrictions (section 41 of the MHA 1983) 1 may be given leave of absence in accordance with section 17 of the MHA 1983 2 (see, e.g. R v Hallstrom, ex p. W 3 ). Leave of absence is only temporary because it is not a permanent discharge from hospital, and it can be revoked. Conditions may also be attached to it. Patients on a hospital order with restrictions can be given leave of absence with the consent of the Justice Secretary.
(b) They may also be transferred from their hospital into guardianship under section 19(1)(a) of the MHA 1983 4 and regulation 7(4) of the Mental Health (Hospital, Guardianship and Treatment) Regulations 2008 (EW) 5 or to another hospital, etc. (under section 19(3) of the MHA 1983 6 and regulation 7(5)(a) of the Mental Health (Hospital, Guardianship and Treatment) Regulations 2008 (EW)). 7 The Justice Secretary’s consent is required for a restricted patient to be transferred to another hospital (according to section 41(3)(c)(2) of the MHA 1983). 8
Permanent mode
Permanent exit from hospital, too, may be either unofficial or official.
Unofficial
Where an informal/voluntary patient absconds from hospital and refuses to return, he can be said to have left the hospital unofficially but permanently, because he cannot be lawfully retaken and returned. Another example of permanent, unofficial exit from hospital is where a detained unrestricted patient (other than a patient on remand to hospital for a report (under section 35 of the MHA 1983) 9 or for treatment (under section 36 of the MHA 1983) 10 or under an interim hospital order in accordance with section 38 of the MHA 1983) 11 absconds from hospital and stays at large until they are no longer liable to be detained in hospital and, therefore, to be retaken under, for example, section 18(4) of the MHA 1983, 12 as amended by section 2(1) of the Mental Health (Patients in the Community) Act 1995 (EW). 13 Such patients are automatically written off the books of the hospital – they become ‘discharged by operation of law’. (Today discharge by operation of law does not apply to patients detained in hospital for treatment under section 3 of the MHA 1983 and detained patients subject to a hospital order without restrictions under section 37 of the MHA 1983 14 because those two sections, were abolished by section 21B of the Mental Health (Patients in the Community) Act 1995 (EW)). 15
Official
Officially, a patient may leave hospital permanently by way of absolute discharge or conditional discharge if the conditions imposed are never breached (Needless to say, some patients leave hospital officially and permanently via dying there, naturally, or by other means).
Conditional discharge
A patient subject to a hospital order with restrictions (under section 41 of the MHA 1983) 16 may be discharged conditionally (as provided for by section 73(2) of the MHA 1983 17 and shown by R (on the application of Maher) v First Tier Tribunal and Others). 18 According to the Supreme Court in Secretary of State for Justice v MM, 19 the condition/s imposed must not be so restrictive as to amount to a detention or a deprivation of liberty. Where none of the conditions imposed is ever violated, that patient is in effect discharged permanently.
A conditional discharge may be said to be temporary where the restricted patient concerned breaches the condition/s imposed and, so, can be recalled to hospital.
Absolute discharge
The official way in which patients leave hospital permanently is by being discharged (or absolutely discharged in the case of restricted patients). In general, and quite contrary to popular conception, discharge from hospital is not an isolated event that occurs at the end of a patient’s stay in hospital. It is rather a planned event – a process (see, e.g. Department of Health and Social Care 20 and National Institute for Health and Care Excellence 21 ).
The various ways of discharge from hospital are as follows:
(a) Self-discharge by an informal patient with the consent of the responsible clinician. (Where, however, the self-discharge is medically unwise because the nurse in charge of the patient’s ward or the responsible clinician thinks the informal/voluntary patient is not well enough to leave hospital, then under section 5(4) of the MHA 1983 22 that patient may be kept in the ward for up to 6 hours, and under section 5(2) of the MHA 1983 for up to 72 hours.) 23
(b) Discharge by the responsible clinician of non-offender patients (in accordance with section 23(2)(a) of the MHA 1983) 24 and of patients on a hospital order without restrictions (as provided by Schedule 1 to the MHA 1983). 25
(c) Discharge by the patient’s nearest relative with the consent of the responsible clinician and discharge by the hospital managers (under section 23(2)(a) of the MHA 1983). 26
(d) Discharge of restricted patients by the responsible clinician with the consent of the Justice Secretary (according to section 41(3)(c)(iii) of the MHA 1983) 27 or by the Mental Health Tribunal with the Justice Secretary’s consent (in line with section 73(1) of the MHA 1983). 28 (In Northern Ireland the equivalent of section 73 of the MHA 1983 is Article 78 of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4) 29 : RM Re Application for Judicial Review (Northern Ireland) (Rev 1)). 30 ) Under section 42(2) of the MHA 1983 31 the Justice Secretary has power on his/her own to release a restricted patient.
(e) Discharge by the Tribunal of unrestricted patients (as provided for by section 72 of the MHA 1983). 32
(f) Habeas corpus
The writ of habeas corpus offers a way of examining whether a decision (e.g. to admit a patient to hospital compulsorily) is lawful based on the decision-making procedure (but not on the merits of the case). So, the court can order the release of the person being detained if the proper procedure was not followed in making the decision to detain him. Some cases illustrating this are Re S-C (Habeas Corpus), 33 BB v Cygnet Health Care 34 and GD v Edgware Community Hospital and London Borough of Barnet. 35
(g) Judicial Review
Like habeas corpus, judicial review also offers a means of examining the legality of a decision based on the decision-making procedure rather than the merits of the case. But, unlike habeas corpus, it can examine factors outside the mere non-adherence to proper procedure (e.g. illegality and irrationality or unreasonableness: Council of Civil Service Unions v Minister for the Civil Service). 36 A successful judicial review will result in the court ordering the person being detained (the patient) to be discharged.
Conclusion
As has been shown, patients leave mental hospitals not just by way of discharge, as people generally assume. There are other ways of leaving hospital such as absconding, leave of absence and transfer to another hospital, etc., as stated above. To increase public awareness of the topic, this paper has looked at all these modes of leaving hospital according to whether they are official or unofficial, and temporary or permanent.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
