Arianna Kelly analyses a recent judgment in which the Upper Tribunal considered whether a s.3 Mental Health Act detention can persist during long-term s.17 Mental Health Act leave without any active connection between the patient and hospital.
In DB v Betsi Cadwaldr University Health Board  UKUT 53 (AAC) Upper Tribunal Judge Jacobs considered an appeal from the Welsh Mental Health Review Tribunal (MHRT) against a refusal to discharge a patient from detention under s.3 Mental Health Act (MHA). The UTT was called to answer the question:
What decision should a tribunal make if a patient is on leave and not attending a hospital but the clinical team believes that the discipline of recall is necessary to ensure compliance with medication?
The patient, DB, was detained under s.3 Mental Health Act; he had been on leave under s.17 MHA since October 2019. By September 2020, he had not been physically back in hospital for 11 months; his solicitor referred to his arrangements at the hospital as a ‘virtual bed,’ which had been at two different sites during his leave. Throughout that time, DB had been living in a care home with supervised leave in the community.
He challenged his detention under s.3 MHA on the basis that it was no longer appropriate for him to be detained, as his care did not involvement ‘a significant component of hospital treatment.’ His clinical team opposed his application to the MHRT, arguing that he should remain liable to detention due to his continuing symptoms of Bipolar Affective Disorder and his care team’s belief that he would discontinue his medication if discharged (as he had done in the past). DB’s Responsible Clinician did not believe that a Community Treatment Order was appropriate for him.
The MHRT refused DB’s application. It found that DB’s ‘appropriate treatment is medication, support and continuous review by his Care Team,’ that he was receiving ‘appropriate and necessary treatment whilst on Section 17 leave’ and that ‘it is probable he would not take his medication or remain at’ the care home if he were discharged from s.3 MHA.
DB appealed the MHRT’s decision; the Health Board did not appear before the UTT, and the matter was considered on the papers.
Judge Jacobs noted the cases of R(CS) v MHRT and the Managers of Homerton Hospital  and R(DR) v Mersey Care NHS Trust  EWHC 1810; these cases considered challenges to decisions by first-instance tribunals not to release patients who had been on long-term leave.
In CS, the court considered a patient who had been having increasing periods of leave from hospital, eventually attending hospital only once every four weeks for a ward round. The court considered that the tribunal had made a rational decision not to discharge CS from detention under s.3. Noting DR, the court considered ‘whether a significant component of the plan for the claimant was for treatment in hospital.’ In both cases, the courts accepted that the leave was part of the overall treatment of the patient.
In CS, the court found that ‘treatment in hospital under section 3 can take place daily without overnight stays in hospital,’ and that:
- monthly visits for review at ward round (which included clinical oversight of CS’s medication);
- weekly sessions with the ward psychologist; and
- regular review of whether the continued periods of s.17 leave remained appropriate
constituted ‘treatment at hospital remain[ing] a significant part of the whole.’ The court did not consider ‘that the mere existence of the hospital and its capacity to be treated by the patient as a refuge and stability is part of the treatment at that hospital.’ The court accepted that ‘in the closing stages of the treatment in hospital’ the role of the patient’s treating psychiatrist ‘may be gossamer thin,’ but ‘it is not appropriate to abruptly discharge a patient who has been subject to compulsory admission and treatment as an in-patient for a number of months.’ An approach involving continuing s.3 detention while phasing out time in hospital did not necessitate immediate discharge by the tribunal.
However, in DB, Judge Jacobs distinguished CS and considered that the Welsh MHRT had erred at law. In DB, the patient had not had any contact with the hospital since going on s.17 leave 11 months prior; ‘it followed that he had not received any treatment in a hospital in that time…he had managed without receiving any part or form of his treatment in a hospital for eleven months. The question then arises: why was it necessary for the patient to be detained in hospital at all?’
While the MHRT had found that DB ‘needed the discipline of liability to detention’ in order to remain compliant with his medication and it was a significant part of his care plan, Judge Jacobs found that there had not been any finding by the MHRT that he required ‘a significant component of his treatment to be in hospital.’
Judge Jacobs accepted that ‘this may appear to create a dilemma,’ as DB may have been complying solely due to his liability to detention. If he were released from his liability to detention, he may then disengage, ‘leading to a deterioration and the inevitable new admissions…in an unending cycle of discharge and admission.’ Judge Jacobs considered that other options may potentially be considered, such as a Community Treatment Order, or potentially using the Mental Capacity Act.
However, even if these other options were not available:
liability to detention is not a fallback when the possible options are not suitable or not available. To repeat, if the statutory conditions for detention are not met, the tribunal must direct their discharge. Section 3 is not available just because none of the other options is suitable for the patient. If there are no options under the Act, the proper and only course is to discharge the patient.
The case was remitted for further consideration.
This judgment has significant implications for patients on long-term s.17 MHA leave, particularly where such an arrangement is being used to authorise a community deprivation of liberty; it was not clear on the face of this judgment whether DB was detained.
The availability and lawfulness of long-term s.17 leave has been an issue of some controversy since the MM and PJ decisions by the Supreme Court put beyond question that neither a CTO nor a conditional discharge may be used to authorise a deprivation of liberty in the community. The MM decision appeared to leave an opening to allow a community detention to be effected under s.17(3)’s allowance that a patient on a leave of absence may ‘remain in custody’:
A patient who is granted leave of absence and a conditionally discharged restricted patient remain liable to be detained but are not in fact detained under the MHA (at least unless the responsible clinician has directed that a patient given leave of absence remain in custody, under section 17(3)).
The current Mental Health Act Code of Practice recommends that s.17 should typically not be of a long duration, stating at 27.11-27.13 that ‘Leave should normally be of short duration and not normally more than seven days. When considering whether to grant leave of absence for more than seven consecutive days, or extending leave so that the total period is more than seven consecutive days, responsible clinicians should also consider whether the patient should go onto a community treatment order (CTO) instead and, if required, consult any local agencies concerned with public protection….Leave for more than seven days may be used to assess a patient’s suitability for discharge from detention.’
However, the Code of Practice is at odds with the HM Prisons and Probation Service Mental Health Casework Section Guidance, ‘Discharge conditions that amount to a deprivation of liberty,’ published in January 2019. This guidance specifically endorses long-term leave under s.17(3) MHA for patients who would be deprived of their liberty in the community, without the use of any other legal framework to authorise their detention for those lacking capacity. The guidance states, in relation to patients with capacity to determine their residence and care arrangements:
Where a patient continues to present such a risk to public protection, linked to his mental disorder, the Secretary of State considers that his treatment is best managed under the provisions of the MHA so that either the Secretary of State or the Tribunal can consider the public protection aspect of detention under the MHA. If further treatment and rehabilitation could be given in a community setting for such a patient, then a section 17(3) long term escorted leave approach would be more appropriate than to conditionally discharge with a care plan that required a DoL authorisation under the inherent jurisdiction of the High Court.
The DB judgment calls this guidance and the practice of authorising long-term community detentions under s.17(3) MHA into serious question. It distinguishes CS, noting that there was no ‘significant component’ of DB’s care which was being delivered in hospital. Neither, from the face of the judgment, did there appear to be any indication that the period of leave was being used to test DB’s community care arrangements, or ‘phase out’ his relationship with the hospital with a view to discharging him from s.3. The role of DB’s liability to recall to hospital appeared to serve primarily as an enforcement mechanism to insist on his taking medication. He had ended any apparent treatment at the hospital, but it appeared that the long-term plan was to leave him subject to s.3 detention while he lived in the community. The scenario in DB was closer to the one considered and rejected in CS as presenting no ‘significant component’ of the treatment being delivered in hospital: ‘the mere existence of the hospital and its capacity to be treated by the patient as a refuge’. Though the UTT did not direct DB’s discharge from s.3, it sent a clear message that some tangible aspect of treatment in hospital must exist to justify continuing detention.
The court acknowledged the potential difficulties DB may face if he is discharged from his s.3 and subsequently suffers a deterioration in his mental health, leading to his readmission to a considerably more restrictive setting than the one in which he currently resides. However, the judgment is robust in its finding that a continuing s.3 detention cannot be a ‘fallback’ position just because there is no other feasible community option for the patient; the tribunal is obliged to consider it strictly by reference to the statutory criteria for detention.