Clients detained under Section 37/41 who are stuck in hospital indefinitely?

Is there any case law on challenging the MOJ for clients detained under Section 37/41 who are stuck in hospital? I have a client who has been in hospital for 30 years, their RC/MDT are saying that they no longer need to be in hospital and had requested unescorted S17 Leave as part of their discharge planning. However, the MOJ has refused to approve unescorted S17 Leave, although in advance of approving a conditional discharge the MOJ needs to see evidence of successful unescorted S17 Leave. My client has been detained in a variety of hospitals for the last 30 years.

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The patient needs to take legal advice from a Mental Health specialist who will is prepared to/able to bring a public law challenge against the MOJ, working in conjunction with the MDT.

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I agree with the other response, you need to get advice about a Judicial review of the MOJ’s decision.

Hello Wayne. Not aware of any caselaw, sorry. The MOJ will provide a reason for refusal, and this can inform any further work required. Is the refusal reasonable? Does the information provided satisfy the MHCS Guidance?

“The Secretary of State will generally agree to unescorted leave at the responsible clinician’s discretion when satisfied that the patient is sufficiently rehabilitated to respect the conditions of leave, behave safely in the community and abide by the time limits set for return to hospital.”

Dear Wayne

Please see the link to a specific judicial review case challenging the Secretary of State’s refusal to grant unescorted leave but this was not successful.

R (C) v SSJ [2014] EWHC 167 (Admin)

Kind Regards


Have you applied to the Tribunal? I’m not aware of any rule that prevents a Tribunal from discharging a patient without their first having had unescorted leave. If your Tribunal says their hands are tied, you can appeal to the UT. I would love to have a clear UT decision saying that the Tribunal can’t just surrender its power of discharge to the MoJ. (Unless there already is one? Anybody?)

Nice one Andy

The case referred to related to a s. 47/49 rather than a s. 37/41 and the set of circumstances were unique to that detention criteria. I would not reference that as supportive case law for the question asked.
This issue arises regularly and a sensible MH lawyer should be able to address it

Well, that’s not always the case for those people that could never be unsupported in the community due to other reasons such as physical disability or cognitive impairment (LD for example). You haven’t said if the MoJ have provided a reason why they won’t agree to the unescorted leave, but if there are reasons that the person cannot have it are due to a reason unrelated to their risks, you can plan a discharge with supported leave included. It does get a little complicated though and you’d need to look at the MM judgement and consider the impact of this first.