Section 35 Conditional discharge subject to deprivation of liberty conditionsI1
United Kingdom
The Mental Health Act 1983 is amended as follows.
In section 42 (powers of Secretary of State in respect of patients subject to restriction orders), after subsection (2) insert—
“(2A)Conditions amounting to a deprivation of a patient’s liberty may be imposed under subsection (2) if the Secretary of State is satisfied that those conditions are necessary for the protection of the public from serious harm.”
In section 73 (power of tribunal to discharge patients subject to restriction orders)—
in subsection (2)—
omit the “but” at the end of paragraph (a);
at the end of paragraph (b), after “apply” insert
“; and
(c)the tribunal—
(i)is not satisfied that conditions amounting to a deprivation of the patient’s liberty would be necessary for the protection of another person from serious harm, if the patient were discharged from hospital; or
(ii)is satisfied that conditions amounting to a deprivation of the patient’s liberty would be necessary for the protection of another person from serious harm if the patient were discharged from hospital, and is also satisfied that for the patient to be discharged subject to those conditions would be no less beneficial to their mental health than for them to remain in hospital”;
after subsection (5) insert—
“(5A)Conditions amounting to a deprivation of a patient’s liberty may be imposed by the tribunal under subsection (4)(b) only where the tribunal is satisfied as to the matters mentioned in subsection (2)(c)(ii).
(5B)Conditions amounting to a deprivation of a patient’s liberty may be imposed by the Secretary of State under subsection (4)(b) or (5) only where the Secretary of State is satisfied that those conditions are necessary for the protection of the public from serious harm.”
In section 145(1) (interpretation), at the appropriate place insert—
““deprivation of liberty” and related expressions are to be construed in accordance with section 64(5) and (6) of the Mental Capacity Act 2005;”.
The amendments made by this section apply in relation to any person who is a restricted patient within the meaning given by subsection (1) of section 79 of the Mental Health Act 1983, or is treated as a restricted patient as a result of that subsection, whether the person became such a patient (or treated as such a patient) before or after the coming into force of this section.