S17 leave for s37/41 patient

I have a client who is seeking Conditional Discharge. They have an offer of place in supported accommodation but overnight leave has not yet been approved by the MoJ (although it is expected to be shortly). I am trying to find caselaw to support an argument that the overnight leaves in this case would be good practice but not part of ongoing treatment. Can anyone point me in the right direction for any cases which have dealt with this point?
Thank you

Was always my understanding that s17 leave must be authorised by MoJ for a s37/41 patient so to grant it in absence of that would be unlawful - regardless of the ethical merits of it.

1 Like

yes, the RC has applied to the MoJ but it has not yet been granted. I’m looking for caselaw on whether the authorised leave can be said to be good practice rather than treatment, which the RC agrees with.
thank you

I’m probably being a little thick, then. Ignore me.

Am I also being thick but the MHA says anything done by the RC for/to a p constitutes treatment

This isn’t case law, but Roger Pezzani has a nice argument on this question, which is that, since leave is in the gift of the Secretary of State, if the Tribunal says it can’t discharge unless leave has taken place, it is effectively removing its own power of discharge and handing it to a politician. He argues that this would be an unlawful fettering of the Tribunal’s power.

If the RC is in agreement, it would surely be convincing enough for them to give evidence that although overnight testing may be desirable, it is not necessary for successful discharge.

If the patient suffers from a mental disorder rather than ASD/LD/PD, then there’s a common-sense argument that testing on S.17 unescorted leave is sufficient given that the nature/prognosis is likely formulated and predictable & risk is adequately tested (and will be mitigated through community provisions).

There’s an annoying lack of guidance from case law delving into when overnight testing is necessary (probably because it’s a clinical opinion on a case-by-case basis).

Interesting point, though possibly somewhat mute. The MHRT would themselves want to have evidence that the patient has had overnight leaves before considering their powers of discharge. I cannot think of any cases where a MHRT has discharged a patient without there be an opportunity to assess the person’s willingness and motivation to actively engage in their aftercare plan. In my experience this has been the case for those patients who have been granted a conditional and absolute discharge, with the latter needing a longer period in the community before the MHRT were satisfied they did not require recall.

1 Like

I think Zac’s point is that if tribunal panels were to take this approach rigidly as a matter of policy, without considering the facts of individual cases, then they would arguably be unlawfully fettering their discretion.

If the panel want to discharge, it usually is easy to persuade them that the missing overnight leave is not a prerequisite for deferred conditional discharge. Your RC is on side, which is good, so for example he might say that the patient is ready and he’d be willing to discharge without overnight leave if only the hostel policy were different. Unfortunately, I can’t think of any helpful cases for when the panel don’t want to discharge…

thank you, very helpful

thank you very much

thank you. I couldn’t find any cases, but I thought there may be something someone else knew about

There is no case law that I am aware of. However, the need for S17 leave as part of the transition will depend upon the individual and their own risks.
I’ve had cases in which the person had not leave and others in which the tribunal wanted several period of overnight leave to evidence risks could be managed by the residential care home staff.
In my own experience though, it is usually the tribunal panel who want more evidence of leave than the MoJ themselves.

Section 17 leave is always for theraputic purposes, which can progressively grows to an overnight leave to several days. It is intended for re-itroduction to the community in a safely manner while constnatly revieweing the risks. Once the RC is happy that risks are manageable, he can then ask for the patient for a Conditional Discharge. I do not believe that has nothing to do with good practice to override the MOJ to give Section 17 in order to put a Sec 37/41 patient in the community. On the contrary, a doctor good practice is founded omn the GMC guidelines and the rule of law.

When I was sitting on the Tribunal I had occasion to discharge a patient without prior testing on s17. She was highly functional and fully recovered, so no concerns about how she might manage.

1 Like