I have a s3 patient whose long term hospital is now a care home and he has been placed on long term s17 with a (presumably nominal) transfer to another private hospital where he has never been treated. Although I feel this is of dubious legality he is very happy to stay in the now care home where he has lived for many years. He has just been referred and doesn’t want to challenge but is happy to ‘have a big meeting.’ (Quite incapacitated) Now that the client could opt not to have a full hearing I am torn between my feeling that a full MHT is warranted and not wanting to rock the boat for the sake of the legal principles.
What legal safeguards are in place for your patient here?
Would it not be more appropriate to consider MCA and Dol’s
I completely agree with you but my concern is that if I start asking awkward questions the placement might fail.
i.e If they discharged the section and he was not eligible for DoLs he would have to be moved.
A Dol’s authorises your patients care plan which leaves me somewhat perplexed as to why they would have to leave the placement.
Have you involved Advocacy?
So the purpose of the s3 is so that he can be detained in the care home. It may not survive the MHT even if you do not ask any awkward questions. HIs capacity can be considered anyway - arguably the MHT should consider the MCA. What about s17A or s7 - would either be appropriate?
The thing is he is very risky but possibly would not be found to lack capacity hence my feeling that DoLS might not apply. He is not seeking US leave because he doesn’t want to ‘ get into trouble.’ The extended s17 allows them to escort him everywhere which s7 would not. I don’t think advocacy is necessary as I have known him for over ten years and I know he has never been happier than where he is now. To be fair it is probable that a decent Judge would be troubled about the situation if looking at it ‘on the papers’ so it probably is justifiable for me to push the client towards a full hearing on the basis that it will allow a full analysis of the situation.
I reckon he’s safe enough where he is despite any concerns about the lack of hospital treatment during his perpetual section 3. An online tribunal is unlikely to want to interfere, and a paper tribunal (which shouldn’t happen anyway) wouldn’t touch it with a barge pole, especially given the chance that he has the relevant capacity. None of the alternatives would bring him any real benefit - only complexity.
You could point out that he’s effectively in the same position as risky but capacitous restricted patients under HM Prison and Probation Service, ‘Mental Health Casework Section: Guidance: Discharge conditions that amount to deprivation of liberty’ (January 2019).
Another school of thought is that if you need to be escorted then you lack capacity to take decisions about your risk, so the MCA can be used for risk-based detention just like the MHA. See the obiter comments in Birmingham City Council v SR  EWCOP 28 about it being in your best interests to be kept out of mischief. And there’s always the question of the inherent judisdiction: Re AB (Inherent Jurisdiction: Deprivation of Liberty)  EWHC 3103 (Fam). Either of these could coexist with a CTO, or guardianship. Or section 17 leave…
Thank you Jonathan . I think that is a very good plan and I can justifiably argue that the arrangements should stay in place as they are the least restrictive option- even though it goes against the grain a bit as I am just waiting for a suitable case to argue that long term s17 leave is unlawful!