Following the decision of the Supreme Court in The Secretary of State for Justice -v- MM  UKSC 60, the Ministry of Justice has released official guidance relating to the conditional discharge of restricted patients that may involve a deprivation of liberty.
In order to try and address the problems for some patients arising from the ruling of the Court in MM, the Secretary of State’s guidance has placed an emphasis on utilising long-term escorted leave according to the provisions of Section 17(3) Mental Health Act 1983 (MHA) as opposed to conditional discharge, particularly in cases where 1:1 supervision in the community is for management of risk to others.
Where a patient lacks capacity
Where a detained patient lacks capacity in relation to their care which amounts to a deprivation of their liberty, the guidance states that the Secretary of State considers there are broadly two groups of patients which may warrant different considerations for how to approach their discharge from hospital. The first group are those who require a care home or similar as they could not manage in the community without the support such a placement provides. The second group are those where the need for constant supervision is primarily to manage risk to others.
The Secretary of State considers that for those in the first group, a deferred conditional discharge can be directed by the Tribunal (or the Secretary of State can give an indication that he is minded to conditionally discharge the patient), and a DOL authorisation can be sought under the Mental Capacity Act 2005 (the MCA).
For those in the second group, the Secretary of State does not consider conditional discharge to be appropriate but would be open to consideration of using long-term escorted leave under Section 17(3) MHA. However, the guidance notes that the Secretary of State will always consider whether conditional discharge is appropriate initially. Where Section 17(3) MHA is used to permit a patient long-term escorted leave of absence, the Secretary of State is of the opinion that there is no need for an additional DoL authorisation under the MCA whilst this is in existence. The Secretary of State contends that when on leave under Section 17(3) MHA, the patient remains a detained patient and is therefore eligible for all the protections of the MHA, including the right to apply to the Tribunal every 12 months. The Secretary of State further differentiates the use of Section 17(3) MHA leave by echoing the reasoning of the Supreme Court in MM that a detained patient is ineligible for a DOL authorisation. As the patient remains a ‘detained’ patient whilst on Section 17(3) MHA leave, there is not the requirement to obtain a DOL authorisation; this is only required at the point of conditional discharge.
Where the patient has capacity
If a responsible clinician believes that a patient with capacity should be conditionally discharged, however the risk that the patient poses requires conditions amounting to a deprivation of liberty to be imposed upon them, the guidance acknowledges that neither the Secretary of State nor the Tribunal can approve this in light of the MM judgment.
The Secretary of State reiterates the possibility of using Section 17(3) MHA leave of absence, as an alternative, with conditions requiring constant supervision if this would constitute a safe way of the patient continuing treatment and rehabilitation away from hospital whilst officially remaining detained. The guidance suggests that this leave would usually be granted for a maximum of 12 months at a time so that the appropriateness of such leave could be reviewed before granting any necessary extension. If there is a breach of the leave conditions or there are concerns that the risks that the patient poses have increased, the responsible clinician could recall the patient to hospital. Alternatively, if the risks that the patient poses have reduced to make constant supervision unnecessary, conditional discharge could then be considered at this stage.
The Secretary of State does not support the use of the Inherent Jurisdiction of the High Court to authorise a DoL in the community for a capacitous patient referencing the recent judgment in Hertfordshire County Council -v- AB  EWHC 3103 (Fam).
However, the guidance states that the Secretary of State is keen to ensure that Section 17(3) MHA leave is not used in circumstances where conditional discharge is more appropriate. Where there is no requirement for constant supervision of a patient with capacity and the application is for unescorted overnight leave prior to discharge, the Secretary of State will continue to grant leave for up to five nights unescorted.
Those currently conditionally discharged
The Secretary of State also provided guidance relating to those patients who had been conditionally discharged with conditions amounting to an objective DoL prior to the ruling in MM. For those patients, the Secretary of State has indicated that there are four potential options:
- The Secretary of State could exercise his power to revoke or amend a condition to remove any illegality, so long as it is considered that the public will remain adequately protected without that condition, or with an amended condition
- Recall the patient to hospital stating that the clarification of law represents a material change of circumstance. In these instances, the Secretary of State should consider whether he wishes to consent to granting Section 17(3) MHA long term escorted leave of absence to enable this patient to stay within the community. This will only be granted where to remain in the community appears to be in the patient’s best interests and where any risk to the public could be safely managed
- The Secretary of State could absolutely discharge the patient, if it is considered that the public would remain adequately protected without restrictions, including the power to recall to hospital at a later date
- Refer the case to the Tribunal to consider amending or removing the relevant condition, or to consider absolute discharge
In most cases where a condition is considered to be unlawful, the guidance indicates that the Secretary of State will first ask the responsible clinician whether a restriction of the kind imposed by the unlawful condition remains necessary to protect the public. The Mental Health Casework Section (MHCS) may then investigate as to the correct approach to take and will feed this back to the Secretary of State. Once this has been considered, the Secretary of State will then decide if he can utilise any of the first three options, and if not will refer the matter to the Tribunal.
This guidance may be considered to be a mixed blessing. There needs to be a mechanism to enable patients who no longer require hospitalisation but do require an escort in the community to be able to live in the community. However, there will be concern from many patients about not being ‘discharged’ and whilst use of Section 17(3) may for some patients operate largely in the same way as a conditional discharge, the continued application of Part 4 of the MHA and lack of discharge from detention under the MHA will be important to some patients.
The issue of Section 117 aftercare under the MHA is also a relevant consideration. Many local authorities do not contribute financially to Section 117 aftercare whilst a patient is on Section 17 leave but would do so upon conditional discharge. Both local authorities and CCGs hold statutory responsibility for the provision of Section 117 aftercare and this is applicable to patients on Section 17 leave, so reviewing and/or amending local arrangements to take account of this may be appropriate.
It is also important for hospital managers to ensure that the terms of leave are clear and persons who have ‘legal custody’ of the patient under Section 17(3) MHA are specified.
In considering patients on Section 17 leave who lack capacity and whether such a patient is ineligible for a DOLS authorisation, case B under Schedule 1A of the MCA 2005 would apply and therefore provided there is no conflict between the conditions of Section 17 leave imposed, and the relevant care or treatment is not in whole or in part medical treatment for mental disorder in hospital, the patient would not be ineligible for a DOLS authorisation and the managing authority of any care home would still be required to apply for a standard authorisation under Schedule A1 MCA 2005. The issue of whether discretion can be implied in relation to making an application for an authorisation (where a DoL is authorised under the MHA already) either for those in care homes or where a COP authorisation would usually be sought is yet to be formally tested or at least reported in case law at this time.