[2023] UKUT 237 (AAC)

The First-tier Tribunal’s jurisdiction over the Appellant was governed by section 74 of the 1983 Act, which imports the criteria in section 73(1) and (2), which in turn import the criteria in section 72(1)(b)(i), (ii) and (iia) of the 1983 Act.

Section 72 of the 1983 Act sets out the circumstances in which a tribunal may or, as the case may be, must discharge a patient. It provides (so far as relevant for the purposes of this appeal):

“72.

Powers of tribunals

(1)

Where application is made to the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act or is a community patient, the tribunal may in any case direct that the patient be discharged, and –

…

(b)

the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied-

(i)

that he is then suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment.; or

(ii)

that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or

(iia) that appropriate medical treatment is available for him …”

…

Section 73 of the 1983 Act sets out the power of the tribunal to direct the discharge of restricted patients. It provides (so far as relevant for present purposes):

“73.

Power to discharge restricted patients

(1)

Where an application to the appropriate tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to the appropriate tribunal, the tribunal shall direct the absolute discharge of the patient if-

(a)

the tribunal is not satisfied as to the matters mentioned in paragraph (b)(i), (ii) or (iia) of section 72(1) above; and

(b)

the tribunal is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

(2)

Where in the case of any such patient as is mentioned in subsection (1) above-

(a)

paragraph (a) of that subsection applies; but

(b)

paragraph (b) of that subsection does not apply,

the tribunal shall direct the conditional discharge of the patient.

Section 74 of the 1983 Act provides:

“74.

Restricted patients subject to restriction directions

(1)

Where an application to the appropriate tribunal is made by a restricted patient who is subject to a limitation or a restriction direction, or where the case of such a patient is referred to the appropriate tribunal, the tribunal –

(a)

shall notify the Secretary of State whether, in its opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged under section 73 above; and

(b)

if the tribunal notifies him that the patient would be entitled to be conditionally discharged, may recommend that in the event of his not being discharged under this section he should continue to be detained in hospital.

…

(6)

Subsections (3) to (8) of section 73 above shall have effect in relation to this section as they have effect in relation to that section, taking references to the relevant hospital order and the restriction order as references to the hospital direction and the limitation direction or, as the case may be, to the transfer direction and the restriction direction…”