Patients detained in hospital under the Mental Health Act 1983 are in legal custody and must be given lawful authority to be absent from the detaining hospital. The leave of absence provisions of the 1983 Act are set out in section 17 and give authority to the responsible clinician to:
‘Grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital subject to such conditions (if any) as that clinician considers necessary in the interests of the patient or for the protection of other persons.’
Mental Health Act 1983, section 17(1)
Leave of absence is used when a patient is to be absent from the detaining hospital, such as when they require inpatient treatment at a general hospital or to allow a patient access to local amenities for short periods to benefit from fresh air and meaningful activities. The responsible clinician has wide powers to grant the leave, subject to any conditions necessary to protect the patient or others. This includes directing that the patient remains in the custody of a member of staff of the detaining hospital, or it is possible to authorise any other person to have custody of the patient (Mental Health Act 1983, section 17(3)). The responsible clinician can revoke the leave and recall the patient to hospital where this is necessary in that patient's interests or the protection of others (Mental Health Act 1983, section 17(4)).
Testing rehabilitation and recovery
The main aim of the 1983 Act's leave provisions was the testing of a patient's recovery and rehabilitation in the community. The power to grant the leave subject to conditions and custody, where necessary, allows the responsible clinician to have close supervision and control of the patient even though they are no longer in hospital (R (Barker) v BHB Community Healthcare NHS Trust [1998]).
The long leash
Responsible clinicians also have a considerable degree of discretion when deciding on the duration of the leave of absence. Leave can be granted for an indefinite period or be restricted to specified periods and occasions. Where the period is specified, the responsible clinician can extend that period without the patient having to return to hospital (Mental Health Act 1983, section 17(2)). The period of leave that can be granted by the responsible clinician is only limited by the duration of the patient's period of detention, the power of recall lapses once the patient is no longer liable to be detained. Where the detention is renewed then the leave can continue (R (Barker) v BHB Community Healthcare NHS Trust [1998]).
The flexibility in the duration of the leave and the conditions that could be imposed allow the patient's rehabilitation to be tested and, if unsuccessful, then the leave could be revoked and the patient recalled to hospital, giving the responsible clinician ‘long leash’ control over the patient that could endure over many months.
The long leash approach to rehabilitation and leave of absence was first considered by the courts in R v Hallstrom ex parte W [1986], which found the practice to be unlawful and held that continued detention under the Mental Health Act 1983 required the patient need inpatient treatment. However, in R (Barker) v BHB Community Healthcare NHS Trust [1998] the Court of Appeal reversed Hallstrom and saw the testing of the person's compliance as a central part of the rehabilitation process. Treatment therefore needed to be seen as a whole and could not be separated into community care and inpatient care.
Barker was admitted to hospital suffering from drug-induced psychosis and personality disorder and was made the subject of a treatment order for 6 months under the Mental Health Act 1983, section 3. She was detained in hospital but was given leave to be absent from the ward during the week, retuning to hospital at the weekend to be reviewed by the responsible clinician and to have a drugs test. Her detention was renewed, and her leave was extended to 7 days a week. She appealed against the renewal of the order.
The Court of Appeal held that the requirement for the patient to return to hospital, at short notice, for drug monitoring was an essential part of her treatment and one that it might not be possible to provide if she did not continue to be liable to be detained.
The Court of Appeal's approach in the Barker case was followed in R (CS) v Mental Health Review Tribunal and another [2004], in which the High Court held that the continuing detention of the patient was necessary to enable the mental health team to rehabilitate her into successful community living from hospital living. The tribunal was not bound to direct her discharge just because at the time of the hearing she was on leave. Periods of absence from hospital were in no way inconsistent with continuing detention under the 1983 Act, as long as she was still receiving treatment in a hospital, even as an outpatient.
The decisions of the Courts in relation to extended use of leave of absence have developed from Hallstrom (long leash unlawful) through Barker (lawful if inpatient treatment might be necessary in coming months) to eventually, in CS, deciding it is lawful if leave has some element of hospital care, and that periods of absence are not inconsistent with detention.
Community treatment orders and leave of absence
Community treatment orders (CTOs) under sections 17A-G of the 1983 Act are used where it is necessary for a patient, detained for treatment, health or safety, or for the protection of others, to continue to receive treatment after their discharge from hospital. The patient is discharged subject to conditions and a power of recall to hospital. CTOs are not as controlling as a leave of absence because their requirements cannot amount to a deprivation of liberty or custody (Welsh Ministers v PJ [2018]).
Responsible clinicians are required to consider the use of a CTO before they grant a leave of absence of longer than 7 days (under the Mental Health Act 1983, section 17(2A)). However, responsible clinicians continue to favour the authority given to them to better control the patient during rehabilitation through the leave of absence requirements of section 17 of the 1983 Act.
A stricter application of the decisions in Barker and CS
A recent decision of the Upper Tribunal will limit a responsible clinician's authority to use extended periods of leave and require the use of a CTO instead. In DB v Betsi Cadwaladr UHB [2021] a patient appealed against a decision of the Mental Health Review Tribunal for Wales that he should remain liable to detention under the Mental Health Act 1983, section 3.
The patient had been on a leave of absence from hospital for 11 months and had not been inside a hospital during that time. He was living in a care home with supervised leave in the community. The patient had applied to the tribunal to be discharged, arguing that it was inappropriate for him to remain liable to detention because his care package did not contain a significant component of hospital treatment. The tribunal held that it was appropriate for him to remain liable to detention on account of the fluctuating nature of his illness and the evidence that his symptoms were still detectable. It further held that continued liability to detention was necessary for his health and safety and for the protection of others.
The Upper Tribunal allowed the appeal and found that the availability of CTOs now required a stricter interpretation of the decision in R (CS) v Mental Health Review Tribunal [2004] that had ruled that, while absence from hospital was not inconsistent with continued detention, there did still have to be a significant and justified component of treatment in hospital. Given that the patient in this case had not received any treatment in hospital for 11 months, the Upper Tribunal questioned why it was necessary for him to be detained in hospital at all.
Although the fear that the patient might stop complying with his treatment regimen and end up in a cycle of discharge and readmission was valid, that situation could be avoided by using other options available under the 1983 Act such as a CTO.
Limiting the extended use of leave of absence to circumstances where the patient is still receiving treatment for their mental disorder in hospital will encourage greater use of CTOs.
Conclusion
Leave of absence under section 17 of the 1983 Act gives the patient's responsible clinician the authority to impose any conditions they consider necessary in the interests of the patient or for the protection of others. The responsible clinician can test the patient's rehabilitation in a very controlled way and the leave can be revoked and the patient recalled if the responsible clinician has concerns about the patient's recovery. Extended use of leave provisions under section 17 has been tolerated by the tribunal and the courts with patients spending many months, even years, subject to controlling conditions and recall to hospital if they do not comply.
More recently the Upper Tribunal has ruled that the introduction of CTOs by the Mental Health Act 2007 should limit the use of this long leash extended leave of absence and has applied a stricter interpretation of the case law relating to the use of extended leave – it now requires there to continue to be a significant and justified element of treatment in hospital if leave is to continue. If this is not the case, then a CTO or other provision of the 1983 Act such as discharge from detention should be used instead.
KEY POINTS
- Patients detained in hospital under the Mental Health Act 1983 are in legal custody and must be given lawful authority to be absent from the detaining hospital
- Leave of absence under the Mental Health Act 1983 section 17 is used when a patient is to be absent from the detaining hospital
- The power to grant the leave subject to conditions, custody and recall allows the responsible clinician to have close supervision and control of the patient even though they are no longer in hospital
- A recent decision of the Upper Tribunal limits a responsible clinician's authority to use extended periods of leave and, instead, requires the use of a community treatment order (CTO)