Yuh know - over the years I have simply accepted what I have been told. Not good.
I looked deeply into the MHA 1983(Amended 2007), MHACOP, MHA Reference Guide to find out if S17(3) leave was prohibited for:
S4
S5(4)
S5(2)
S136
Sections 35, 36, and 38.
Understand what I am saying - there is no inherent reason why S17(3) cannot be applied in law to all in Part II. I want to emphasise the words ‘in law’. I want to separate facts from inferences
S17(1) states, " (1)The [F1responsible clinician] may grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital subject to such conditions (if any) as [F2that clinician] considers necessary in the interests of the patient or for the protection of other persons."
If one goes by what is in the basket of Part II then S17(3) applies to S2, S3, S4, S5(4) and S5(2). However, I’ve never seen anyone in their right minds give S17(3) leave to patients on S4, S5(4) or S5(2).
In Part III - which is outside the scope of S17(3) - we have S37 (without restriction) where S17(3) leave is allowed. However, S17(3) does not apply to S35, 36, and 38 according to the MHACOP. Yes I know that makes sense. However, the Act itself nor the MHACOP explains this.
What prevents S17(3) leave for someone held under S136 which is in Part X?
This post is not about ‘common sense’ it is about how murky the rules are. Help!
My understanding is, s136, 5(4), 5(2) are holding powers for purpose of holding until assessment takes place to determine if meets criteria to be detained, so s17 wouldn’t apply until such time P is under S2, 3 etc.
The reasons are well hidden in the Act, but I think the Code of Practice is correct.
s17 says that the responsible clinician (RC) can grant leave to anyone detained under Part 2 of the Act. So you’re right that covers people detained under section 4 as well as sections 2 & 3.
However, it doesn’t apply to people detained under s5, as they do not have an RC. That is because RC is defined in s34 in a way that only applies to detained patients if they are “liable to be detained by virtue of an application [for assessment or treatment]”. Sections 2, 3 & 4 involve an application to the hospital managers, but s5 doesn’t - the approved clinician/nurse makes a “report” to the managers instead.
Section 17 also applies to some (but not all) patients detained under Part 3, thanks to sections 40, 45B and 47, read with Schedule 1.
In effect, s40(4) says that certain provisions of Part 2 apply (with or without modifications) to people detained under a s37 hospital order as if they were detained by virtue of an application under Part 2. The provisions in question are set out in Schedule 1 and include s17. As a result, s17 leave can be given by the RC to a patient on s37 (though subject to the consent of the Secretary of State for restricted (s37/41) patients).
In addition, s47(3) says that a transfer direction (ie detention under s47 or s48) has the same effect as a s37 hospital order. And s45B(2) says that a hospital direction (ie detention under a s45A “hybrid order”) has the same effect as a transfer direction (and therefore a hospital order). Combine those with s40(4) and the effect is that s17 leave can be given to people detained under s45A, 47 and 48 (again subject to SofS’s consent if they are restricted patients).
However, there are no equivalent provisions which mean that s17 applies to people detained under sections 35, 36 or 38. So it doesn’t.
Likewise, there is nothing in s135 or 136 (or anywhere else) that says that s17 applies to people detained in a place of safety under those powers.
Excellent. The Code of Practice may be or is correct but it did not give reasons. It’s not ‘supposed’ to give reasons - apparently. We’re just meant to obey.
I followed your logic. It is beautiful (no sarcasm intended or implied).
There was a situation the other day where I had to switch a patient from S2 (about to expire) to S5(2) then to S3 [the 5(2) was a bridge because the AMHP and Second medical recommendation would not arrive in time - it’s a long story)]. In that situation I was the RC for S2 and would be for S3 when completed. I assumed that I was the RC while the patient was on S5(2). I’d find it hard to imagine that a 5(2) creates a new situation where the patient loses the RC they previously had (namely me).
Anyways the patient who had S17 while on S2 then asked for leave when on the 5(2). [P would not have satisfied requirements of 27.10 MHACOP to be granted leave, as P had fallen quite ill suddenly 36 hours before end date of S2]. I simply said that because of the 5(2), leave couldn’t be granted. But in reality I did not actually know why i.e. It was just ‘received wisdom’; not actual knowledge. So the question is: Am I P’s RC in the above scenario during the S5(2) 72-hour bridge period, and if so could I have granted leave if P did satisfy 27.10 MHACOP. I know that’s a weird hypothetical but it’s just to test the law, by thought experiment.]
Yes - but nothing says that S17 doesn’t apply either. I think your reasoning about no RC applies here too.
What I have extracted is that S17 applies:
For those sections in Part 2, where there is RC/AC responsibility, and
In Part 3 subject to court or SofS’s restrictions.
What a convoluted mess is the interaction between S40 with itself, Schedule 1, and other parts of the Act.
Big thank you for sharing your fine expertise so generously.
