The response of the secretary of state and the “supervised discharge” provision of the UK mental health bill 2022: Potential problems and opportunities in the wake of Secretary of State for Justice v MM [2018] UKSC 60

Abstract

This article considers the legal regulation of discharge conditions that amount to deprivation of liberty (DoL) in the sense of Article 5 of the European Convention on Human Rights following the UK Supreme Court's decision in Secretary of State for Justice v MM in 2018. The 2019 response of the Secretary of State for Justice to the MM judgment and the proposed “Supervised Discharge” provision of the UK 2022 Mental Health Bill are reviewed from a critical perspective with several important problems identified.

It is recommended that the advice of the Secretary of State to make use of leave provisions under s17 of the MHA in place of conditional discharge is considered cautiously as this may be liable to future legal challenge. The 2022 Draft Bill is likely to yield an effective solution but it is lacking important provisions to ensure accountability of healthcare providers where Supervised Discharge is authorised, opportunities for therapeutic relaxations of restrictions, and safe systems for the recall and conveyance of patients under the Supervised Discharge regime.