Section 35 amends section 42 of the 1983 Act, creating a power that allows the Tribunal or the Secretary of State for Justice to place conditions that amount to a deprivation of liberty on a patient as part of a conditional discharge.
	Restricted patients can be subject to conditions when discharged by the Tribunal or the Secretary of State if they no longer require detention for treatment in hospital, but there are continuing risks that cannot otherwise be safely managed in the community. This is known as conditional discharge.
	There are a small number of cases where restricted patients have complex needs and pose a high risk of harm to the public through violent or sexual behaviour, which is a result of their mental illness, but are no longer benefiting from the extremely restrictive regime of detention in hospital. Historically, these patients were conditionally discharged into conditions of constant supervision to manage this risk, with their consent. Additional conditions may have also been put in place, such as a requirement for patients to maintain contact with their mental health care team, or to stay away from certain locations, such as the place where the crime which led to their detention in hospital was committed. The conditions sought to carefully balance the need to protect the public with the patient’s need for treatment in the least restrictive setting possible.
	The Supreme Court decision in MM v Secretary of State for Justice [2018] UKSC 60 confirmed the position established in lower courts (relevantly, Secretary of State for Justice v RB [2011] EWCA Civ 1608; MM v WL & Anor [2016] UKUT 37 and on appeal EWCA Civ 194) that a patient with capacity cannot be discharged in this manner under the existing provisions of the 1983 Act. This meant that, if the Tribunal or Secretary of State considered that a restricted patient could be discharged, but only if they would be subject to continuous supervision and control (for example, to reside at a particular secure care home and not to go out into the community without an escort), this could no longer be set as a condition and the patient could not be discharged. At present, these patients are being managed using the technical recall and long-term escorted section 17 leave process set out in the Mental Health Casework Section Guidance: Discharge conditions that amount to a deprivation of liberty .
	Section 35 provides for the lawful imposition of these conditions on discharge, which amount to a deprivation of liberty, in the small number of high-risk cases where the patient’s mental disorder persists but they are no longer benefitting from hospital detention, and the Tribunal or Secretary of State for Justice is satisfied the conditions are necessary for the protection of others. In making this judgement, the Tribunal and Secretary of State for Justice must also satisfy themselves that being conditionally discharged with appropriate monitoring safeguards in place is as beneficial, or more beneficial, for the patient than detention in a hospital. This power supports the principle of least restriction by allowing patients to be discharged from hospital and treated in the community, where otherwise this might have been prevented.
	Conditional discharge can be affected under the 1983 Act by both the Secretary of State for Justice, under section 42, and by the Tribunal, under section 73, where the statutory criteria are met. Section 35 subsection (2) amends section 42 by enabling the Secretary of State for Justice to impose conditions amounting to a deprivation of liberty when ordering the conditional discharge of a patient under that section, where they are satisfied the conditions are necessary to protect the public from serious harm. This test is slightly different to the Tribunal’s test. Where evidence suggests more benefit to a patient one way or another, the Secretary of State for Justice will already have regard to that under the existing broad discharge test. The different references to ‘the public’ versus ‘another person’ are to encompass the hybrid responsibilities of mental health and non-mental health risk the Secretary of State for Justice must have regard to in their role.
	Section 35 subsection (3) amends section 73 of the 1983 Act. New section 73 subsection (5A) allows for conditions amounting to a deprivation of liberty to be imposed where the Tribunal considers they are necessary to protect another person from serious harm if the patient were discharged from hospital, and that being discharged from hospital subject to these conditions must be no less beneficial than remaining in hospital. This ensures where the benefit is equal, the patient can still be discharged. Section 73(4)(b) and (5) allow the Secretary of State for Justice to impose or vary conditions on patients conditionally discharged by the Tribunal. New section 73(5B) enables the Secretary of State for Justice to be able to add conditions that amount to a deprivation of liberty in these cases where those conditions are necessary for the protection of the public from serious harm.
	Section 35 subsection (4) defines deprivation of liberty for the purposes of all the new provisions according to the 2005 Act. Section 35 subsection (5) allows the new measures to operate retrospectively by providing that deprivation of liberty conditions can be imposed on restricted patients who are already detained, or who are conditionally discharged, at the time the provisions come into force.
Patients concerned in criminal proceedings or under sentence Section 35: Conditional discharge subject to deprivation of liberty conditions