Hi all, can someone be sent out on s17 leave against their will, and can it authorise any restraint needed to get them from A to B? Many thanks for any thoughts.
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S 17 is voluntary and based on consent.
R. JUSSUN
RMN RNLD LLB
The use of s.17 leave is a step-down process to a safe and hopefully ‘low,’ risk approach to an eventual discharge.
It does not prevent a patient to be fully discharged however.
The question would be, Why don’t they want to utilise leave in the first place?
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Thanks for your reply. Their MH condition means that they hate change and so want to just sit in their room in hospital. There is not much else that can be done for them in hospital though. I believe s 18(7) and s137 would authorise the conveyance.
Forced coveyance can be done so via s.135 (1) if not consenting.
Let the magistrate make the decision as to what you want to accomplish, then use Guardianship as an option.
It’s not the s17 that authorises the restraint it’s the detention under MHA itself. But yes restraint can be used to move patient from A to B with s17 leave and is done so regularly for example to attend ECT at another hospital… Urgent treatment at general hospital … Moving a patient to a placement/ carehome. Depending on the individual situation though it might be better to use MCA and best interests as the mechanism. Depends on whether the purpose fits within jurisdiction of MHA
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The short answer is yes. The longer answer is ‘it’s complicated’.
The starting point for me is that ‘capacity to consent’ and therefore ‘consent’ to S17(3)’ leave is not a requirement of law, though a majority believe otherwise. The patient’s agreement is desirable but not necessary - ‘agreement’ is not consent in mental health law. On that premise ‘against their will’ is a legally appropriate possibility. But it depends on what ‘will’ means because it means different things to different people.
In emergency situations patients can be sent on 17(3) to another hospital ‘against’ their will - which in most cases I have encountered - they would not have any ‘will’ anyway.
[Sidebar: Capacity and consent are not defined in the text of the MHA 1983 - and are rather different concepts from the same under Mental Capacity Act (2005). Thank me later for avoiding a dissertation.]
On the issue whether restraint can be authorised I consider:
- The patient is still detained even when on S17(3) and will acquire no greater level of Human Rights beyond the restrictions of the original detaining section:
- The effect of the original detention section is the same. S17(3) in my interpretation is a special privilege given to the RC/AC by Parliament to relax conditions of detention for a specific purpose which I call treatment as per purposes of S145 (1 to 4). The nature of the word ‘grant’ in the legislation is important.
- Section 17(3) leave under the MHA 1983 is not subject to the patient’s consent, and there is no capacity test applicable under the MHA 1983 for this purpose. The responsible clinician has the authority to grant leave based on their clinical judgment, and the MCA 2005 does not apply in this context. However, clinicians should still consider the patient’s views and preferences as part of good practice, even though these are not legally determinative.
- The duties (in law) bearing on the RC/AC are the same on or off S17(3) - which are the same protections intended by the original detention.
Based on all the above together - the RC/AC can lawfully authorise proportionate restraint for various risk situations. But note that such authorisation does not mean that the RC/AC will be afforded sufficient *manpower to enable leave where reasonably safe and effective restraint may be become necessary (on balance of probability.)
If afforded sufficient manpower the MHACOP 27.10 (bullet point #11) states, “…undertake a risk assessment and put in place any necessary safeguards, and…”. The words ‘any necessary safeguards’ means just that, subject of course to proportionality considerations. If handcuffs or other forms of physical restraint are necessary then the RC/AC is empowered by the law to approve/authorise.
In an most unusual situation many years ago, I as RC authorised restraint of a patient on S17(3) leave, should she kick off in public place, and needed to be returned swiftly to hospital. It was a very careful set of transparent considerations and planning based on the law and how restraint could be done ‘safely’ in a public place. We had the manpower. It was a 5:1 escort team fully trained.
[*manpower is a gender neutral term.]
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Thanks very much that is very helpful, much appreciated.
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Thanks very much, that’s very helpful
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