S. 17 leave and the potential for an unlawful deprivation of liberty
Salil Kumar, Mental Health Executive
Patients who are detained in hospital under the Mental Health Act 1983 are deprived of their liberty whilst receiving treatment in hospital. Such patients have the right to leave the hospital lawfully only if they are granted leave of absence by their responsible clinician under section 17.
Responsible clinicians may grant leave for specific occasions or for specific or indefinite periods of time (Para 27.9 Code of Practice). Under S. 17(1), a responsible clinician can attach conditions to leave of absence which are necessary in the interests of the patient and for the protection of others.
If no conditions are attached to the leave of absence then the patient cannot be deprived of his liberty whilst on leave from hospital even though he remains liable to be detained in hospital for treatment under the Act.
Under S. 17(3) a responsible clinician can direct that the patient remains ‘in custody’ of any person during the leave of absence provided there is written authorisation by the Hospital Managers. This section could authorise a deprivation of liberty whilst on leave as long as patient is receiving treatment for a mental disorder.
Leave of absence is primarily intended to allow a detained patient to be temporarily absent from hospital where further treatment in hospital is still thought to be necessary (para 31.4 Code of Practice).
Long term section 17 leave of more than seven consecutive days (para 31.5 Code of Practice) may be useful where the clinical team wishes to see how the patient manages outside hospital before making the decision to discharge.
If a detained patient is granted long term leave to a community placement e.g. a care home, the responsible clinician has a duty to decide whether to attach any conditions to such leave (S. 17(1)) or whether the patient should remain in custody of any person (S. 17(3)).
It is important for the responsible clinician to consider whether or not the patient is being deprived of their liberty whilst on leave to the community placement. If so, the responsible clinician would have to complete a written authorisation for the patient to be deprived of his liberty under S. 17(3) in order for the deprivation of liberty to be lawful. This is because under Article 5 of ECHR, one can only be deprived of their liberty by a ‘procedure prescribed by law’ and so the authorisation must be explicit and not implicit.
In practice it is uncertain as to how often responsible clinicians consider whether patients are deprived of their liberty whilst on leave or whether S. 17(3) needs to be used. In most situations when long term section 17 leave is granted, the patient is not being deprived of their liberty because the patient has made sufficient progress in their care pathway to be close to being discharged from hospital. Therefore it is appropriate for responsible clinicians to grant such leave under S. 17(1) without using S. 17(3) of the Act.
However there are circumstances which may arise where the proposed care plan at the community placement does amount to a deprivation of liberty e.g. not being allowed to leave the premises without an escort. When granting leave to a patient in this situation, the patient will be deprived of their liberty whilst on leave and so a written authorisation under S. 17(3) will be required to make the deprivation of liberty lawful.
Because the responsible clinician is the only person who can grant leave of absence under s.17 it is very important them consider whether or not a patient is likely to be deprived of their liberty whilst on leave so that the appropriate written authorisation can be completed to authorise the deprivation of liberty. Otherwise the patient could end up being unlawfully deprived of their liberty and responsible clinicians should endeavour to avoid this situation in all circumstances as the hospital managers could find themselves with a claim for damages.
Peter Edwards Law 04.04. 2016
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