Guide to the draft Mental Health Bill 2022: supervised discharge

In this fourth posting in our blog series on the draft Mental Health Bill 2022, we look at some of the proposed changes concerning supervised discharge.

• Following the matter of MM v Secretary of State for Justice, in which the Supreme Court concluded that a restricted patient with capacity cannot be conditionally discharged into conditions that constitute a deprivation of their liberty under the existing provisions in the Mental Health Act. This is known as ‘supervised discharge’. This decision led to such patients being temporarily managed using technical recall and long-term section 17 leave.

• The Bill makes provision for lawful supervised discharge in high-risk cases where a patient’s mental disorder is continuing but the patient is not benefitting from detention in hospital, provided the Secretary of State or the Tribunal is satisfied that the conditions are necessary to protect others and that supervised discharge is at least as beneficial for the patient as detention in hospital.

• These provisions are intended to operate retrospectively so that supervised discharge can be imposed on detained restricted patients or conditionally discharged restricted patients. The new provisions are intended to apply to patients irrespective of whether they have the relevant capacity or not.

If your organisation requires advice in respect of your duties under the Mental Health Act 1983, or in relation to the proposed reforms, please do not hesitate to get in touch with our team of experts.