The use of long-term section 17 leave was very much discouraged following the creation of community treatment orders (“CTO”) pursuant to section 17A in 2007.
Indeed section 17(2A) specifically provides that longer term section 17 leave (defined in section 17(2B) as over 7 consecutive days) may not be granted unless the Responsible Clinician (RC) has considered a CTO first.
Earlier case law on long term section 17 leave had followed a sequence of cases that had acknowledged the usefulness of section 17 leave in assisting clients back into the community but at the same time continuing to provide support from their psychiatric team. Cases such as R(DR) v Merseycare NHST [2002] EWHC 1810 and R(CS) v MHRT [2004] EWHC 2958 had allowed fairly extended periods of section 17 leave out of hospital as long as there was a component of the care plan that provided treatment at a hospital. The sequence of cases on section 17 leave had broadly created a virtual CTO before the 2007 amendments brought in the formal CTO of section 17A and one would have thought those cases had come to an end.
However a recent case has addressed similar issues: DB v Betsi Cadwaladr University Hospital Board [2021] UKUT 53.
In this case the patient had been on section 17 leave for 11 months without any contact with any hospital. A tribunal continued the detention but when challenged the upper tribunal made it plain that the first-tier Tribunal should have analysed the components of the treatment to ensure that these met the requirements of section 145 and should then have decided the extent to which these were being delivered in a hospital. The point was made that continued detention was not a fall-back when other options such as a CTO or use of the Mental Capacity Act were unsuitable or unavailable. If detention was to be renewed whilst the patient was on leave, then the usual statutory conditions for liability to detention had to be met.
The case was therefore remitted back to the Mental Health Review Tribunal for Wales.
Comment
Further cases on this topic would probably have not been anticipated. However, what it underlines, if nothing else, is the need for all tribunals' and managers' hearings to consider the detention criteria carefully whenever their application arises. If a patient does not meet those criteria, then detention cannot continue.
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