DB v Humber Teaching NHS Foundation Trust & Anor

A restricted patient may be conditionally discharged while remaining in hospital informally. Conditional discharge does not require discharge into the community, provided the patient is no longer detained under the restriction-order regime. M v Secretary of State for Justice [2019] AC 712 is confined to the meaning of discharge in the statutory scheme and does not prevent informal admission during conditional discharge. Informal admission may be considered when deciding whether conditional discharge is appropriate.

The appellant was a restricted patient detained under sections 37 and 41 of the Mental Health Act 1983. After recall to hospital under section 42(3), the First-tier Tribunal refused his case for discharge. It held that he could not be conditionally discharged on the basis that he would remain in hospital informally.

The appeal concerned whether conditional discharge under section 73 permits a patient to remain in hospital as an informal patient. The Upper Tribunal decided the issue without a hearing and considered the relationship between the statutory scheme, section 131 of the Mental Health Act 1983, and the authorities on conditional discharge and recall.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law. It was set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007, and the case was remitted for rehearing by a differently constituted panel.
2. Section 73(4)(b) of the Mental Health Act 1983 permits conditions to be imposed on conditional discharge. Detention cannot itself be imposed as such a condition.
3. That does not prevent a restricted patient from remaining in hospital informally during a conditional discharge, or from later being admitted informally while conditionally discharged. The patient remains liable to recall, but is not detained merely because the conditional discharge operates alongside an informal admission.
4. The different forms of admission operate independently. This conclusion is consistent with Dlodlo v Mental Health Review Tribunal for the South Thames Region (1997) 36 BMLR 145, R v North West London Mental Health NHS Trust, ex parte S [1998] QB 628, and R (Rayner) v Secretary of State for Justice [2009] 1 WLR 310.
5. M v Secretary of State for Justice [2019] AC 712 explained the meaning of discharge in sections 42(2) and 73(2) for restricted patients. It did not create a binary choice between detention in hospital and discharge into the community. Informal admission is a factor that may be taken into account when deciding whether conditional discharge should be directed.

• Upper Tribunal (Administrative Appeals Chamber): [2026] UKUT 57 (AAC) set aside the First-tier Tribunal’s decision for error of law and remitted the case for rehearing by a differently constituted panel.
• First-tier Tribunal (Health, Education and Social Care Chamber): on 24 April 2025, refused discharge after deciding that remaining informally in hospital was not permissible.