The Secretary of States position on the discharge of restricted patients where discharge would involve a deprivation of liberty

In case you haven’t had time to read the recent guidance here is a summary. It is important to make sure that you are aware of the Secretary of State’s position as it is likely to affect many individuals, both those currently on restricted sections in hospital and those currently conditionally discharged into placements that deprive them of their liberty.

As a consequence of the recent Supreme Court judgement in MM the Secretary of State is faced with a group of individuals who are either currently unlawfully deprived of their liberty or, if still in hospital, facing the possibility of lengthy delays in their discharge due to the lack of a clear and appropriate legal framework.

These individuals are characterised by having capacity in relation to their residence and care but requiring high levels of supervision in order to protect others. Prior to the decision in MM some of these individuals had been conditionally discharged in circumstances that still involved a high level of supervision (albeit less restrictive than hospital). In MM the Supreme Court found fault with this approach requiring a rethink in relation to how these individuals are to be legally and safely managed.

Following MM a new approach was suggested by the High Court in  Hertfordshire County Council v AB [2018] EWHC 3103 (Fam). This approach was to use the High Court’s inherent jurisdiction to authorise each individual deprivation of liberty. Previously this inherent jurisdiction has mainly been used to protect vulnerable individuals rather than depriving individuals of liberty for the protection of other persons.

The Secretary of State is not satisfied with this approach and had proposed in the alternative that:

1. Those subject to restricted sections and ready to be discharged from hospital should, instead of being conditionally discharged, be granted extended section 17 leave.

2. Those already conditionally discharged and being deprived of their liberty should be recalled, without being returned to hospital, and then granted extended section 17 leave.

This is a muddled and problematic use of both recall and section 17 leave and I’m sure it will cause a lot of confusion and eventually need to be addressed by the court. Recall was clearly intended for use to bring an individual back to hospital rather than simply changing their legal status for more abstract purposes. Section 17 leave is equally clearly not intended as a substitute for discharge. I imagine that explaining the above to clients will be difficult. They will most likely have spent many years working towards a conditional discharge and may find it hard to understand the reasoning behind the Secretary of State’s new approach.

The guidance also seems to have a rather narrow interpretation of a deprivation of liberty advising case managers to look out for conditions that “the patient must be escorted at all times”. A person does not need to be constantly escorted for the conditions of their discharge to amount to a deprivation of liberty. An individual could still be deprived of their liberty if any unescorted leave were regulated and controlled.

It is clear that there is a lacuna here and that there needs to be suitable legislation passed with these individuals in mind. Doctors are understandably hesitant about discharging individuals who continue to pose a risk to the public and yet indefinite hospital detention is not an appropriate solution.

Please note that the guidance also covers those with capacity but I have not discussed this above.

Posted by: admin   Date: 21/01/19

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