F1Pt. V heading substituted (2.12.2019) by Mental Capacity Act (Northern Ireland) 2016 (c. 18), s. 307(2), Sch. 8 para. 38 (with ss. 285-287); S.R. 2019/163, art. 2(2), Sch. Pt. 2 (with art. 3) (as amended by S.R. 2019/190, art. 2)
77.—[F2(1) Where application is made to the Review Tribunal by or in respect of a patient who is liable to be detained under this Order, the tribunal may in any case direct that the patient be discharged, and shall so direct if—
(a)[F3(except in relation to detention for assessment),] the tribunal is not satisfied that he is then suffering from mental illness or severe mental impairment or from either of those forms of mental disorder of a nature or degree which warrants his detention in hospital for medical treatment; or
[F4(aa)in relation to detention for assessment, the tribunal is not satisfied that the patient is then suffering from mental disorder of a nature or degree which warrants the patient’s detention in a hospital for assessment (or for assessment followed by medical treatment); or]
(b)the tribunal is not satisfied that his discharge would create a substantial likelihood of serious physical harm to himself or to other persons; or
(c)in the case of an application by virtue of Article 71(4)(a) in respect of a report furnished under Article 14(4)(b), the tribunal is satisfied that he would, if discharged, receive proper care.]
[F5(1A) In paragraph (1) “detention for assessment” means detention by virtue of any report under Article 9.]
(2) A tribunal may under paragraph (1) direct the discharge of a patient on a future date specified in the direction; and where the tribunal does not direct the discharge of a patient under that paragraph the tribunal may—
(a)with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and
(b)further consider his case in the event of any such recommendation not being complied with.
(3) Where application is made to the Review Tribunal by or in respect of a patient who is subject to guardianship under this Order, the tribunal may in any case direct that the patient be discharged, and shall so direct if it is satisfied—
(a)that he is not then suffering from mental illness or severe mental handicap or from either of those forms of mental disorder of a nature or degree which warrants his remaining under guardianship; or
(b)that it is not necessary in the interests of the welfare of the patient that he should remain under guardianship.
(4) Paragraphs (1) to (3) apply in relation to references to the Review Tribunal as they apply in relation to applications made to the tribunal by or in respect of a patient.
(5) Paragraph (1) shall not apply in the case of a restricted patient except as provided in Articles 78 and 79.
F3Words in art. 77(1)(a) inserted (13.12.2018) by The Mental Health (Northern Ireland) (Amendment) Order 2018 (S.I. 2018/1360), arts. 1, 2(2)(a) (with art. 2(4))
F4Art. 77(1)(aa) inserted (13.12.2018) by The Mental Health (Northern Ireland) (Amendment) Order 2018 (S.I. 2018/1360), arts. 1, 2(2)(b) (with art. 2(4))
F5Art. 77(1A) inserted (13.12.2018) by The Mental Health (Northern Ireland) (Amendment) Order 2018 (S.I. 2018/1360), arts. 1, 2(3) (with art. 2(4))
Modifications etc. (not altering text)
C1Art. 77 applied (31.3.2013) by Mental Health (Private Hospitals) Regulations (Northern Ireland) 2013 (S.R. 2013/22), regs. 1, 3(5)(d), 4
C2Art. 77 applied (31.3.2013) by Mental Health (Private Hospitals) Regulations (Northern Ireland) 2012 (S.R. 2012/403), regs. 1, 3(5)(d), 4
78.—[F6(1) Where an application to the Review 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 tribunal, the tribunal shall direct the absolute discharge of the patient if—
(a)the tribunal is not satisfied as mentioned in paragraph (1)(a) or (b) of Article 77; 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 paragraph (1)—
(a)sub-paragraph (a) of that paragraph applies; but
(b)sub-paragraph (b) of that paragraph does not apply,
the tribunal shall direct the conditional discharge of the patient.]
(3) Where a patient is absolutely discharged under this Article he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.
(4) Where a patient is conditionally discharged under this Article—
(a)he may be recalled by the Secretary of State under paragraph (3) of Article 48 as if he had been conditionally discharged under paragraph (2) of that Article; and
(b)the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the tribunal or at any subsequent time by the Secretary of State.
(5) The Secretary of State may from time to time vary any condition imposed (whether by the tribunal or by him) under paragraph (4).
(6) Where a restriction order in respect of a patient ceases to have effect after he has been conditionally discharged under this Article the patient shall, unless previously recalled, be deemed to be absolutely discharged on the date when the order ceases to have effect and shall cease to be liable to be detained by virtue of the relevant hospital order.
(7) The tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to its satisfaction; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient's case comes before the tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this Article can be given.
(8) This Article is without prejudice to Article 48.
79.—(1) Where an application to the Review Tribunal is made by a restricted patient who is subject to a restriction direction, or where the case of such a patient is referred to the 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 Article 78; and
(b)if it 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 Article he should continue to be detained in hospital.
(2) If in the case of a patient not falling within paragraph (4)—
(a)the tribunal notifies the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged; and
(b)within the period of 90 days beginning with the date of that notification the Secretary of State gives notice to the tribunal that the patient may be so discharged,
the tribunal shall direct the absolute or, as the case may be, the conditional discharge of the patient.
(3) Where a patient continues to be liable to be detained in a hospital at the end of the period referred to in paragraph (2)(b) because the Secretary of State has not given the notice there mentioned, the responsible[F7 authority] shall, unless the tribunal has made a recommendation under paragraph (1)(b), transfer the patient to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed.
(4) If, in the case of a patient who is subject to a transfer direction under Article 54, the tribunal notifies the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged, the Secretary of State shall, unless the tribunal has made a recommendation under paragraph (1)(b), by warrant direct that the patient be remitted to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed.
(5) Where a patient is transferred or remitted under paragraph (3) or (4) the relevant transfer direction and the restriction direction shall cease to have effect on his arrival in the prison or other institution.
[F8(5A) Where the tribunal have made a recommendation under paragraph (1)(b) in the case of a patient who is subject to a restriction direction—
(a)the fact that the restriction direction remains in force does not prevent—
(i)the making of any application or reference to the [F9Parole Commissioners for Northern Ireland] by or in respect of him or the exercise by him of any power to require the Secretary of State to refer his case to those Commissioners, or
(ii)the making of any application by him to the Sentence Review Commissioners, and
(b)if—
(i)the [F10Parole Commissioners for Northern Ireland] give a direction by virtue of which the patient would become entitled to be released (whether unconditionally or on licence) from any prison or juvenile justice centre in which he might have been detained if the transfer direction had not been given, or
(ii)the Sentence Review Commissioners grant a declaration by virtue of which he would become so entitled,
the restriction direction shall cease to have effect at the time at which he would become so entitled.]
(6) Paragraphs (3) to (8) of Article 78 shall have effect in relation to this Article as they have effect in relation to that Article, taking references to the relevant hospital order and the restriction order as references to the transfer direction and the restriction direction.
(7) This Article is without prejudice to Articles 56 to 59 in their application to patients who are not discharged under this Article.
F9Words in art. 79(5A) substituted (15.5.2008) by Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)), arts. 1(4), 102(1), Sch. 5 para. 5(2); S.R. 2008/217, art. 2, Sch. paras. 16, 18(c) (subject to art. 3)
F10Words in art. 79(5A) substituted (15.5.2008) by Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)), arts. 1(4), 102(1), Sch. 5 para. 5(2); S.R. 2008/217, art. 2, Sch. paras. 16, 18(c) (subject to art. 3)
80.—(1) Where a restricted patient has been conditionally discharged under Article 48(2), 78 or 79 and is subsequently recalled to hospital—
(a)the Secretary of State shall, within one month of the day on which the patient returns or is returned to hospital, refer his case to the Review Tribunal; and
(b)Article 75 shall apply to the patient as if the relevant hospital order or transfer direction had been made on that day.
(2) Where a restricted patient has been conditionally discharged as aforesaid but has not been recalled to hospital he may apply to the Review Tribunal—
(a)within the period of 12 months beginning with the date on which he was conditionally discharged; and
(b)in any subsequent period of 12 months.
(3) Articles 78 and 79 shall not apply to an application under paragraph (2) but on any such application the tribunal may—
(a)vary any condition to which the patient is subject in connection with his discharge or impose any condition which might have been imposed in connection therewith; or
(b)direct that the restriction order or restriction direction to which he is subject shall cease to have effect;
and if the tribunal gives a direction under sub-paragraph (b) the patient shall cease to be liable to be detained by virtue of the relevant hospital order or transfer direction.