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Lookup NU author(s): Dr Iain McKinnonORCiD
This work is licensed under a Creative Commons Attribution 4.0 International License (CC BY 4.0).
This article critically analyses government proposals to amend the Mental Health Act(MHA) 1983 (England and Wales) to create a power for Tribunals and the Justice Secretary to discharge restricted patients from hospital subject to conditions that deprive them of their liberty in the community. This proposal has received little critical scrutiny but poses a threat to the human rights of patients who straddle the divide between the mental health and criminal justice systems. The proposal and the cases that preceded it expose the limits of policies of de-institutionalisation and official ambitions to move people with learning disabilities and autism spectrum disorder out of psychiatric hospitals and to support them to live in the community. Such seemingly progressive moves are tempered by a political drive to continue to control those who are thought to pose risks to others. As this article makes clear, detention in the community is not a lesser form of detention than detention in hospital, and it requires stringent safeguards in light of the UK’s obligations under Article 5 of the European Convention on Human Rights. This article advances an alternative solution. Instead of creating a new, and complex, power that could lead to unlawful detentions in the community, the Government should make available suitable community-facing hospital accommodation for restricted patients subject to the same safeguards as hospital settings.
Author(s): O'Loughlin A, McKinnon I
Publication type: Article
Publication status: Published
Journal: International Journal of Law and Psychiatry
Year: 2025
Volume: 103
Print publication date: 01/11/2025
Online publication date: 04/08/2025
Acceptance date: 22/07/2025
Date deposited: 09/08/2025
ISSN (print): 0160-2527
ISSN (electronic): 1873-6386
Publisher: Elsevier Ltd
URL: https://doi.org/10.1016/j.ijlp.2025.102136
DOI: 10.1016/j.ijlp.2025.102136
ePrints DOI: 10.57711/525m-ba13
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