Requests for discharge

The Court of Appeal has clarified important issues in relation to the service by a nearest relative of a request for discharge under the Mental Health Act, writes Michael Paget.

A 'Nearest Relative' is entitled to seek a discharge of a patient detained under section 3 of the Mental Health Act 1983. The patient will be discharged unless the 'Responsible Clinician', within 72 hours of the hospital receiving the discharge request, provides the hospital managers with a barring report.

In this way there is a balance between ensuring nobody continues to be detained through bureaucracy or error and ensuring that the purpose of the Act for both the patient and the public is fulfilled.

The appeal in K v Hospital Managers of the Kingswood Centre and others [2014] EWCA Civ 1332 considered how a discharge order can be delivered. Regulations allow for service of the order to the hospital’s Mental Health Act Administrator; where the order is sent by post it is deemed to be served on the second business day after posting, where the order is served by other routes there is no deemed service provision.

Solicitors for K’s nearest relative had delivered the order by fax. It was sent to the Administrator’s authorised fax number (in fact there is only one fax machine for the whole hospital). However, the Administrator only worked part-time and so she did not consider the order until four days after the fax had been sent. A barring report was made within 72 hours of that consideration. The hospital had not considered the order between receiving it and when the Administrator returned to work.

The Court of Appeal held that if the Nearest Relative chooses a route of delivery where there is no deeming provision then the risks of that route remain with the Nearest Relative. The refusal to grant a writ of habeas corpus was correct and the appeal was dismissed. Service did not take place when the fax was delivered to the authorised fax machine but when an authorised person read the order some days later. The hospital did not have to put systems in place to take account of non-prescribed methods of service.

Michael Paget is a barrister at Cornerstone Barristers. He acted for the Nearest Relative in this case. Michael can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

Click here for Burton J’s judgment of 23 June 2014.