B v Mental Health Tribunal & other interested parties [2003] EWHC 815 Admin

L, the mother and nearest relative of a patient detained under s3 MHA 1983, B, applied to the Mental Health Tribunal for B’s discharge.  The decision of the Tribunal was that B should be discharged from liability to be detained; that discharge to be delayed by 5 weeks in order to allow L, together with B’s clinical team and social services to work together to arrange an appropriate aftercare package to enable B’s return to the community.

L contended that that deferral was an improper and unlawful exercise of the power contained in section 72(3) MHA 1983. She argued that the power to defer discharge under s72(3) could not be used where the application was made by a nearest relative.

Whilst acknowledging that the 1983 Act applied different tests to the discharge of a patient at the instance of a nearest relative as against applications at the instance of the patient, the court rejected L’s arguments.

The court held that if, on the evidence, a tribunal came to the conclusion that a patient, if released immediately, would be likely to act in a manner dangerous to other persons or to herself, but that if proper aftercare arrangements were put in place that would not be the position, it was clear that the tribunal could make an order for a deferred discharge under s72(3) of the Act to a date when it was reasonably assured that the appropriate aftercare would be in place. In this case, it had been open to the tribunal to conclude that it was necessary to put arrangements for aftercare in place in order to avoid B being a danger to herself.

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