Conditional Discharge under s42 MHA

In 2005 I was given the job of writing a ‘force policy’ on mental health.  The first time we’d ever had an internal policy document on mental health issues.  Whist researching it, amongst other things, I opened up various communications channels to get feedback about what officers wanted to find in it: which operational quandaries needed answers?  I got hundreds of emails and as the policy grew, I tried to ensure that everything we’d been asked to cover had been covered.  Some nine months after starting write it, it was formally approved by the Chief Constable for publication and I could not have been happier with the feedback I’d be given from the authorising policy committee.  Then I got an email from a grumpy officer …

“Sir, knowing that your new mental health policy had been published, I tried to find the answer to a question and was disappointed to find that it wasn’t covered!”  It was about section 42 and ‘conditional discharge’ under the Mental Health Act  …  I had to be honest, I’d never heard of it!  No-one had raised it during our consultation or suggested it needed covering and I had no personal experience of it at all!  I had to quickly add a half page to the policy on AWOL patients and then at least it was covered should anyone else need it in the future.  Typically, no-one has asked me a question about this ever since, either:  not until I was asked twice in the last week.  So here it is! –

  • If someone has been made subject to a restricted hospital order (otherwise known as 37/41 order), they will eventually be considered for release in to the community, often after many years of detention.
  • Where release is considered, it is rarely the case that the patient is just “absolutely discharged” and subject to no further legal restrictions at all;
  • More usually, patients are “conditionally discharged” under s42 of the Mental Health and the ‘conditions’ imposed will vary from patient to patient:
  • They may include conditions upon residence, clinical supervision of various types; and could include others like drug testing or prohibitions of various kinds.

After such release, should there be cause for concern about a patient’s wellbeing, the Secretary of State for Justice can issue a warrant under s42(3) to recall the patient to hospital, whereby they are then again a s37/41 restricted hospital order patient.  The patient can be recalled to the hospital in which they were previously detained, or to another hospital which should be specified on the warrant being issued by the MoJ.


By virtue of s42(4), a patient who has been recalled by warrant, is to be treated for the purposes of s18 MHA as if they are AWOL under the Mental Health Act.  In other words, the power to retake a patient is the same as for those who are AWOL.  This means that any of the following people can re-detain the patient.

  • An Approved Mental Health Professional
  • Staff from the hospital [to which the patient is recalled]
  • A Police Officer
  • Anyone authorised by the managers of the hospital [to which the patient is recalled.]

Chapter 22 of the Code of Practice to the Mental Health Act should be born in mind, with regard to this “AWOL patient”, as well as chapter 11 on conveyance.  This means:

  • It is the role of mental health services to re-detain the patient, where their location is known.
  • The police should be involved in this process where this is consistent with the need to manage risks.
  • NB: it should be borne in mind that everyone who is subject to conditional discharge under s42 has been a restricted hospital order patient.  By definition of their sentence in a Crown Court this means they “pose(d) a serious risk of harm to the public”.

It would therefore be fairly difficult to imagine a situation in which such a patient did not trigger police involvement against the “RAVE Risk” model which I advocate.  As ever, clear communication and planning is required to prevent the “No, we think you should just do it” approach on either side.

The Mental Health Cop blog

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