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Community mental health patients and the law

Many people will assume that mental health Lawyers can only assist when a patient is detained under the Mental Health Act and that a Lawyers’ involvement stops when a patient is discharged from Hospital back home or into supported accommodation.

That does not have to be the case.  There are circumstances where a mental health Lawyer can provide valuable advice and assistance after their client has left Hospital.  In many instances public funding is available to do this.


Forensic patients may be discharged from Hospital on a conditional basis.

This is the most common way that restricted patients are discharged.

The Tribunal should discharge conditionally if they are not satisfied that the criteria for detention under the Mental Health Act are met. A conditional discharge means that the person would then be discharged but would remain liable to recall.

Conditions applied under a Conditional Discharge have legal effect.  A breach of conditions is likely to lead to the Minister of Justice considering recalling a patient to hospital.  If that occurs the patient reverts to being detained under the same provisions as they were before the discharge.

If a patient is recalled to Hospital because they have breached the conditions they will automatically be referred for a tribunal hearing and again they would engage a Lawyer to advise and represent.

In addition to this conditionally discharged patients may experience issues with their care in the community (see below) or they may wish to apply for an Absolute Discharge after a requisite period of time.



A Community Treatment Order or CTO is one way in which some patients are discharged from Hospital back home or into alternative accommodation.  This is now quite common and is a way of safely providing structured care in the community with the co-operation of the patient and the local mental health services.

Community Treatment Orders are authorised and regulated pursuant to Section 17a of The Mental Health Act 2008.   Under the power of that section, patients detained under Sections 3, 37, 45a, 47 or 48 may be discharged from Hospital to receive ongoing treatment in the community.  There will be conditions attached to the CTO and the Responsible Clinician (the treating Psychiatrist) has the power to recall a patient to Hospital if s/he feels they have not complied with those conditions.

A patient has a right of appeal to the tribunal in the first six months of the CTO, the second six months and then annually.  Generally they will engage a Lawyer to advise and assist in that regard.

If a patient is recalled to Hospital because they have breached the conditions of their CTO and / or there has been a deterioration in their mental state they will automatically be referred for a tribunal hearing and again they would engage a Lawyer to advise and represent.



Once a patient is discharged from Hospital there is a duty for the paying authority to provide “after care” meaning that there should be consideration by a care co-ordinator of the services that are required to assist that patient in maintaining their recovery in the community.  Sometimes this is not provided or there is an issue with the provision of the same.  It is sensible, if this happens, for either a mental health or community care Lawyer to advise.  It may be necessary for that Lawyer to attend certain Care Programme Approach meetings (CPA), Person Centred Planning meetings (PCP) or in the case of a patient with learning difficulties the Care and Treatment review meeting.

This is not an exhaustive list of the ways in which mental health Lawyers and their colleagues help patients discharged from the Mental Health Act or, people in the community who suffer mental illness.

Swain & Co Solicitors are unique in their approach to assisting their clients.  We offer a broad range of services including Community Care, Court of Protection, Prison Law and many more.  All of our Lawyers are experts in their field and are committed to assisting more vulnerable members of our society.  We provide accurate and clear advice delivered to our clients in a straight forward way without judgement or prejudice.   We stand by our vision  :

“Empowering people to make positive change”

For a list of services please visit our website at

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