Absolute discharge and restricted patients – standing the test of time

SUMMARY This article reviews the legal framework regulating absolute discharge for restricted patients under the Mental Health Act 1983 (England and Wales). It also reviews key case law that has emerged from Mental Health Tribunal judgments. Absolute discharge has a distinct position in forensic mental health law. It requires tribunals to determine not only whether detention criteria are no longer met but also whether continued liability to recall remains necessary. The article reviews the salient sections of the Act and highlights the enduring influence of R (SC) v Mental Health Review Tribunal [2005], which identified criteria relevant to absolute discharge decisions that have stood the test of time. The case law review highlights themes around risk assessment, recall of conditionally discharged patients, human rights considerations and the need for robust evidence, proportionality and reasoning in tribunal decisions. The article elucidates learning points for clinicians when preparing reports to support patients seeking absolute discharge and also for medical members of the Mental Health Tribunal service involved in such cases.