Section 17 leave and CTOs
Andrew Parsons examines a helpful Upper Tribunal ruling on the relationship between Section 17 Leave and community treatment orders.
Since the Mental Health Act 2007 inserted the Community Treatment Order provisions into the Mental Health Act there has been the potential for overlap between a CTO and extended leave of absence under s.17. A choice between the two can often be difficult for clinicians. However, a recent case – KL v Somerset Partnership NHS Trust [2011] UK UT 233 (AAC) – has provided some guidance on the matter.
Facts
Patient KL was admitted under Section 3 suffering from paranoid schizophrenia with a chronic delusional disorder.
He was detained in hospital for a few weeks and then granted extended leave of absence under Section 17 subject to conditions that:
- He was to live at home with his wife.
- He had to attend outpatient appointments at a local community mental health treatment base every two weeks.
- If he failed to comply with these conditions the responsible clinician might recall him to hospital.
KL applied to the First Tier Tribunal (FTT) to be discharged. He argued that he did not meet the detention criteria because no part of his treatment plan provided for him to receive treatment in a hospital.
The FTT rejected KL’s application and he appealed to the Upper Tribunal.
Court Decision
The Tribunal rejected KL’s appeal. They referred to the extended definition of “hospital” in Section 145 of the Mental Health Act which states that it includes “any health service hospital within the meaning of the NHS Act 2006”. This means that it includes “any institution for the reception and treatment of persons suffering from illness…clinic dispensaries and outpatient departments maintained in connection with any such… institution”.
As the patient met with his key worker at an adult community mental health centre providing assessment and treatment, and because the key worker or CPN was working in conjunction with his responsible clinician it was held that the patient was receiving hospital treatment, albeit as an outpatient, and was thus within the definition contained within the Mental Health Act. (This decision is consistent with the previous case of R(CS) v MHRT [2004] EWHC 2958.)
Although the patient’s appeal was rejected the Tribunal also considered the issue of whether the patient should have been on Section 17 leave or whether a community treatment order might have been a better way to manage him. The FTT had clearly thought that a CTO was more appropriate as they exercised their power under Section 72 (3A) of the Act to recommend to the Responsible Clinician that he put KL on a CTO, directing him to notify the Tribunal office within a month whether this had been done. If not the Tribunal Judge was to be informed so he could consider reconvening.
Ultimately the RC did place KL on a CTO but the Upper Tribunal did take the opportunity to comment on such cases. It said that in a case where the FTT felt a CTO was more appropriate it may make a recommendation to that effect however if this recommendation is not followed, the FTT may discharge the patient.
Comment
This is useful clarification of the definition of “hospital” in terms of the detention criteria.
As for the use of Section 17 or a CTO, Section 17 (2A) requires the RC to consider a CTO when granting longer term leave (i.e. a specified period of more than seven consecutive days). The Code of Practice comments at Chapter 28 on how an RC should approach long term leave of absence. It suggests that Section 17 is more appropriate where the leave is on a trial basis, particularly if it is unclear as to how the patient will cope in the community.
If any Tribunal takes the view that a CTO is appropriate, it has the power to recommend this to the RC. If he takes a different view, the Tribunal has a power (but not a duty) to discharge the patient. It is likely that that will occur in only very rare circumstances: if the Tribunal is satisfied that the detention criteria are not met, it must discharge the patient. It is therefore likely to be a rare situation where the patient meets the detention criteria, the RC does not think a CTO is appropriate but the Tribunal wishes to discharge. [Note: the RC’s refusal to make a CTO could always be challenged by the patient applying for judicial review]
Andrew Parsons is a partner at RadcliffesLeBrasseur. He can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it..