Client under S37/41 physically unwell and immobile - conditional discharge or long term leave?

I have a client who is detained under a S37/41 and was detained on a medium secure ward however, he has been very unwell and was transferred to a general hospital a number of months ago. He has a tracheostomy in situ and is suffering from encephalitis and is immobile. He can only move his fingers slightly and cannot move his feet. He can only mumble and briefly acknowledge what is being said to him verbally but he is not able to give any instructions. The plan is to move my client to a neurological rehabilitation unit for the long term and depending on his progress, he may be considered for return to the mental health ward dependant upon his physical health needs. He has a staff member with him on the ward at all times.

The RC considers my client’s risk to himself and others as low at the moment given his physical health situation and is considering asking the MOJ for either long term unescorted leave so he can be moved to the rehabilitation unit, or for a conditional discharge so he does not have to have a member of staff with him at all times in the general hospital.

The issue that springs to my mind about a conditional discharge is how this can take effect when he will not be able to physically follow any conditions – although I am aware conditions do not have to be granted, and how can he be managed if his condition improves as he was not ready for discharge before he got unwell. Would the MOJ simply recall him? The prognosis is not good and I had been told he was not going to make it around 2 months ago.

Does anyone have any experience of working with such cases or know any relevant case law as I am struggling to find anything.

Any suggestions would be greatly appreciated.

I have had a sort-of similar situation with a dementia patient, albeit he was on a s.47/49. FTT recommended absolute discharge and the MOJ agreed to release him to a nursing home for end-of-life care.

If there is a possibility of your client improving (especially if that impacts the risk profile, which I imagine it would), the MOJ/FTT won’t agree to an absolute discharge. A conditionless conditional discharge may make sense.

Have you tried discussing the case with the MOJ? I called one of the senior caseworkers in my case and got their view as to how they thought it should proceed and you might find that you can reach agreement - either allowing a simple application by the RC or at least some common ground to present to an FTT.

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Charlie, thankyou very much for your reply that is really helpful. I am due to attend a meeting shortly on this matter and will discuss further with the RC. I will add more info as I get it in the event this can help others. Thanks again.

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Does the neurological rehabilitation unit take MHA patients? Could the patient just be transferred there?

If not then I guess s17 leave would work, or conditional discharge to the rehab unit. If he can’t communicate decisions then he lacks capacity so the whole deprivation of liberty malarkey would be relevant, on a conditional discharge at least.

I’m not sure that’s necessary. I guess he’s on s17 leave at the general hospital, and the staff escort is something the MOJ imposed as part of their agreement to that, but they might agree to remove that requirement.

Yes, I expect so.

This is likely the way forward! :slight_smile:

@RH7224 What happened with this case in the end? Cheers.

This matter is still ongoing and the RC is writing to the MOJ to seek a conditional discharge. I will keep you posted once I know the outcome.

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