The Abolition of ‘Discharge By Operation of Law’ – patients detained under sections 3 and 37, Mental Health Act 1983

Ever since patients started to be admitted into mental institutions, absconding from such institutions has been a fact of life. Also, clear statutory authority to retake absconders has existed since county asylums, the forerunners of today's mental hospitals, started to be built following the County Asylums Act 1808. At present section 37 of the Mental Health Act 1983 concerns patients detained under a hospital order without restrictions on their discharge, etc. Section 3 of the Act, on the other hand, governs patients who are non-offenders but who are compulsorily detained in hospital for treatment. In the past, where a detained patient absconded from hospital and stayed at large beyond the period during which he could be retaken, he was deemed automatically discharged (i.e. ‘discharged by operation of law’). Regarding sections 3 and 37 patients, such discharge was effectively abolished by the Mental Health (Patients in the Community) Act 1995. Not much attention has been given to this topic in the literature. This article adopts a solely legal perspective. It looks briefly at when the power to retake absconders from mental hospitals may be exercised and then examines the concept of discharge by operation of law and its abolition. It concludes that the abolition of discharge by operation of law in the case of patients detained under sections 3 and 37, Mental Health Act 1983 was, though long-overdue, sensible and must be applauded.