Renewal and discharge
Detention has to be justified again at every renewal, and several people can end it.
How is a section 3 renewed?
- In the two months before the section expires, the examines the patient (s20(3)).
- The RC consults one or more other people involved in the patient's treatment, and should discuss the decision with the patient (s20(5); Code 32.2).
- A second professional, from a different profession and involved in the treatment, agrees in writing that the criteria are met (s20(5A)).
- The RC sends the managers Form H5. The RC completes Parts 1 and 3, the second professional Part 2, and the managers record receipt in (reg 13).
- The managers must consider discharge. If they don't discharge, they tell the patient and, unless the patient objects, the nearest relative (s20(3); reg 26(1)(b); Code 38.12).
The criteria are the s3 ones (s20(4)). Renewal is for six months, then a year at a time (s20(2)). Each renewal gives the patient a fresh right to apply to the tribunal (s66(1)(f)).
The second professional
They needn't be an approved clinician. They should have the expertise to judge, be actively involved in the patient's treatment, and have seen them recently enough (Code 32.6). Name them before the RC's examination, and give them time to see the patient (Code 32.7, 32.8).
Without their agreement, the RC can't renew. Their decision should normally stand, and seeking a different second professional should be exceptional and documented (Code 32.9). A refusal doesn't end the current period, but it's a reason for the RC to consider discharge (Code 32.19).
What happens when a section 3 expires?
If it isn't renewed in time, the authority to detain ends. The patient can stay informally or leave. Keeping them anyway is an unlawful deprivation of liberty and a breach of Article 5 (Code 32.10).
The RC must tell the managers immediately. The patient must be discharged, or held under a lawful power such as a holding power while a new application is made. Report it to the commissioner and as a serious incident, and review it within a month (Code 32.10, 38.50).
Who can discharge a patient from section 3?
| Section 2 or 3 | Section 37 | Section 37/41 | |
|---|---|---|---|
| The RC | Yes, by order in writing | Yes | Only with the Justice Secretary's consent |
| The managers | Yes | Yes | Only with the Justice Secretary's consent |
| The nearest relative | Yes, on 72 hours' written notice, unless barred | No, but can apply to the tribunal | No |
| The tribunal | Yes | Yes | Yes, absolutely or with conditions |
| The Justice Secretary | No | No | Yes, absolutely or with conditions |
The RC should discharge as soon as the criteria aren't met, without waiting for the section to run out (Code 32.18). The managers must tell the nearest relative about a discharge, at least seven days ahead if practicable, unless the patient or relative has asked them not to (s133).
A restricted patient discharged with conditions can be recalled by the Justice Secretary (s42(3), s73(4)). Since February 2026, conditions can in limited cases amount to a deprivation of liberty. See conditional discharge and recall.
Can the nearest relative discharge a section 3?
Yes, for Part 2 patients and patients who came from Part 2. They must give the managers at least 72 hours' notice in writing. No special form is needed, and an order given without notice counts as both notice and order (s25(1); Code 32.21, 32.24).
Within those 72 hours the RC can bar it on Form M2. The test is whether the patient, if discharged, would be likely to act in a manner dangerous to others or themselves (s25(1)). That's about the probability of dangerous acts, such as serious injury or lasting psychological harm, not a general need for safety (Code 32.23).
The relative then can't order discharge for six months. For a s3 or CTO patient, they can apply to the tribunal within 28 days of being told about the bar (s66(1)(g), (2)(d)). At that hearing the tribunal must also discharge if it isn't satisfied the patient would be likely to act dangerously (s72(1)).
There's no tribunal route for the relative after a s2 bar, but the managers should consider a review (Code 38.12). Displacing the relative through the county court is a separate process (see the nearest relative).
The rules in brief
- Renewal. In the two months before it expires, the RC examines the patient and reports on Form H5. A second professional from a different profession must agree in writing.
- Who can discharge. The RC, the hospital managers, the nearest relative (Part 2 patients) and the tribunal.
- Nearest relative discharge. Needs 72 hours' written notice. The RC can bar it (Form M2) if the patient would be likely to act in a manner dangerous to others or themselves.
- After a bar. The nearest relative can't try again for 6 months. For a s3 patient they can apply to the tribunal within 28 days.
- Restricted patients can only be discharged by the tribunal, the Justice Secretary, or the RC or managers with the Justice Secretary's consent.
Read more: MHA 1983, s20 · MHA 1983, s23 · MHA 1983, s25 · MHA Code of Practice 2015, chapter 32: Detention and CTO: renewal, extension and discharge
Hospital managers' hearings
A second, separate review of detention by the trust.
What is a hospital managers' hearing?
Under s23 the hospital managers can discharge most detained patients and all patients. They can't discharge patients on s5, ss135 or 136, ss35 or 36 or s38, and restricted patients only with the Justice Secretary's consent (Code 38.2).
The managers can use the power themselves or through a panel of three or more (Code 38.3, 38.4). In NHS trusts and foundation trusts none can be an employee or executive director, and a fee doesn't make them one (s23(4) to (6); Code 38.6). They should be trained and appointed for a fixed term (Code 38.8, 38.9).
When must managers review detention?
- Must. When the renews detention under s20 or extends a CTO under s20A. The RC's report authorises detention even if the panel hasn't sat yet (Code 38.12, 38.14).
- Should consider. When the patient asks, perhaps with an 's help, and when the RC bars a nearest relative's discharge. They can weigh a recent or imminent tribunal, but must record why if they decline (Code 38.12, 38.13).
- May. At any other time, at their discretion (Code 38.12).
Patients and nearest relatives should be told they can ask the managers for discharge, and how that differs from applying to the tribunal (Code 38.11).
What do managers' panels decide?
There are no statutory criteria, so panels ask these questions in order for a s3 patient (Code 38.15, 38.17):
- Disorder. Is the patient still suffering from mental disorder?
- Nature or degree. Does it make treatment in a hospital appropriate?
- Necessity. Is continued detention for treatment necessary for their health or safety or to protect others?
- Treatment. Is appropriate medical treatment available, and could the be used to treat them safely instead?
If three or more members, forming a majority, answer no to any question, the patient should be discharged (Code 38.19). After a barring report they also ask whether the patient would be likely to act dangerously if discharged. If the answer is no, they should usually discharge (Code 38.20 to 38.22).
Panels can discharge even when the criteria are met, and can adjourn briefly to put aftercare or a authorisation in place first (Code 38.23, 38.40).
What happens at a managers' hearing?
- Reports in advance. From the RC, in a format like a tribunal report with a recent risk assessment, and from others such as the care coordinator or named nurse (Code 38.26, 38.27, 38.32).
- Copies for the patient. Unless disclosure would be likely to cause serious harm. Their representative and IMHA get copies too, and the nearest relative if the patient agrees (Code 38.28).
- A fair hearing. The patient can bring a representative and supporters, say why they should be discharged, and speak to the panel alone (Code 38.34, 38.36).
- Reasons. The decision and reasons go to the patient orally and in writing. If they stay detained, a panel member should offer to explain why (Code 38.47, 38.48).
Uncontested renewals and paper reviews
The managers must decide on discharge even when the patient doesn't challenge a renewal, especially if they lack capacity (Code 38.41). A paper review is allowed if the reasons are recorded, and the patient should be offered an interview with a panel member (Code 38.43 to 38.45).
Hold a full hearing if the patient may want to contest it, or there are signs the criteria aren't met. Not objecting isn't agreement. Consider whether earlier reviews in the same period were on paper too (Code 38.45, 38.46).
Managers' hearing or tribunal?
| Managers' panel | Tribunal | |
|---|---|---|
| Who sits | Three or more people appointed by the trust, not its staff | A judge, a medical member and a specialist lay member |
| When | Must review on renewal; should consider on request or after a bar | On application in set periods, or on referral |
| Restricted patients | Only with the Justice Secretary's consent | Can discharge s37/41 patients absolutely or conditionally. For s47/49 or s45A patients, the Justice Secretary decides |
| What it can do | Discharge | Discharge now or on a future date, or make recommendations |
They're separate safeguards, and a patient can use both (Code 38.11). The Mental Health Tribunal has its own rules on timing and reports.
The rules in brief
- Power. Under s23 the hospital managers can discharge most detained and CTO patients (not restricted patients without the Justice Secretary).
- Panels. Usually three people appointed by the trust who aren't its staff.
- When. They must hold a review when the RC renews detention or extends a CTO. They should consider one when the RC bars a nearest relative's discharge, or when the patient asks.
- Test. Broadly the tribunal's questions. After a barring report, also whether the patient would be likely to act dangerously if discharged.
Read more: MHA 1983, s23 · MHA Code of Practice 2015, chapter 38: Hospital managers' discharge power
Questions trainees ask
Who can discharge a detained patient?
The , the hospital managers, the tribunal, and for Part 2 patients the nearest relative. A restricted patient can only be discharged by the tribunal or the Justice Secretary, or with the Justice Secretary's consent.
When must hospital managers hold a review?
When the RC renews detention or extends a . They should consider one when a nearest relative's discharge is barred, or when the patient asks.
How is a section 3 renewed?
In the last two months of the section, the RC examines the patient and reports on Form H5. A second professional from a different profession must agree in writing, and the managers must then consider discharge.
What happens when a section 3 expires?
If it isn't renewed, the authority to detain ends. The patient can stay informally or leave, and keeping them without authority is unlawful.
Can the nearest relative discharge a section 3?
Yes, with 72 hours' written notice to the managers. The RC can bar it on Form M2 if the patient would be likely to act dangerously, and the relative can then apply to the tribunal within 28 days.
How long is a section 3 renewed for?
Six months the first time, then a year at a time.
Who can discharge a section 37/41 patient?
The tribunal or the Justice Secretary, absolutely or with conditions. The RC and managers can only discharge with the Justice Secretary's consent.
Test yourself
The nearest relative gives written notice to discharge her son from s3. You think he'd be dangerous if discharged. What happens next?
Show the answer
B. The RC can bar the discharge within the 72 hours if he'd be likely to act dangerously. She can then apply to the tribunal within 28 days. Displacement is a separate process.
Quick-fire
A nearest relative must give written notice of discharge of
Show the answer
72 hours
After a barring report, a relative of a s3 patient can apply to the tribunal within
Show the answer
28 days