Following the Supreme Court decisions in the cases of MM and PJ last year and the High Court (inherent jurisdiction) decision in Hertfordshire County Council v AB, the Ministry of Justice has published guidance for those considering the discharge of restricted patients who still need supervision which may amount to a deprivation of liberty.
The guidance deals with groups of restricted patients depending on their capacity and the reason for the restrictions being considered, but the main thrust of the advice for nearly every category of patients is to consider long term escorted leave under the provisions of section 17(3) Mental Health Act rather than an application to court for authorisation of the deprivation of liberty via either the Court of Protection or the inherent jurisdiction of the High Court.
The rationale for this appears to be a desire to continue to manage these patients under the provisions of the MHA rather than the Mental Capacity Act.
The Ministry’s recommendations can be summarised as follows for the various restricted patient cohorts:
- Capacitous patient who agrees the conditions: section 17(3) long term escorted leave.
- Capacitous patient who does not agree to the conditions: section 17(3) long term escorted leave.
- Incapacitous patient with best interests deprivation: deferred conditional discharge.
- Incapacitous patient with best interests and risk based deprivation: section 17(3) long term escorted leave.
- Those already discharged in unlawful conditions: review and consider amendment of conditions, recall, absolute discharge, Tribunal referral as appropriate, taking into account the patient’s risk profile.
- Those already discharged with lawful conditions, but with a care plan which is a deprivation: contact Her Majesty’s Prison and Probation Service mental health casework section for advice.
Readers will be aware that the recently published independent review of the Mental Health Act included a recommendation in relation to the issue of discharge of restricted patients on conditions that involve a deprivation of liberty. Recommendation 136 provides that: “The Government should legislate to give the Tribunal the power to discharge patients with conditions that restrict their freedom in the community, potentially with a new set of safeguards.” The Government, the MoJ and the Department of Health and Social Care are currently considering all recommendations made in the final report.
So for the time being, you are advised to follow this operational guidance for the management of patients affected by the issue of discharge conditions that may amount to a deprivation of liberty. There will always be some difficult cases that throw up problems: if you need advice on how to approach those, do get in touch with our friendly, expert team.
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