On a recent case I made an application for a statutory recommendation for unescorted leave and was informed that this can only be made where a patient has no leave whatsoever. I have always interpreted this provision as allowing for recommendations in relation to leave, including unescorted leave, provided this will facilitate discharge.
Has anyone had difficulties with this? Is anyone aware of any case law on the interpretation of this provision?
Definitely don’t subscribe to this Js interpretation, and I would appeal if that was the basis upon which they refused to make the statutory recommendation. Probably a rare circumstance where you might be successful with a new hearing rather than a correction of the reasons.
Personally, I’ve had a hearing where the Judge has made a statutory recommendation that the RC considers allocating unescorted leave.
It’s a personal view but I think even the accepted interpretation of statutory recommendations are not broad enough. There’s an obiter comment by UTJ Jacobs in RN v Curo Care [2011] in relation to CTOs that the Tribunal do not even have to consider the patient is ready for a CTO, only to " trigger consideration of future steps that could be taken to move the patient towards eventual release". This casts a very wide net - statutory recommendations might not even need to be immediately suitable…
Just thinking aloud here; if the Tribunal could make a recommendation for leave specifying that the RC should not impose conditions in subsection (3) re custody, would it also be reasonable to make a recommendation specifying that the RC should not impose the conditions in subsection (2) re specified periods of time?
Been thinking about this further; s.72(3) states that the Tribunal may “…recommend that he be granted leave of absence…” and that can only mean as defined in s.17(1), which by default is ‘unescorted’. If the Tribunal panel was able to recommend the restrictive conditions in the other subsections of s.17, s.72(3) would surely say so. As such, any recommendation for leave can only be in general terms and not specify that particular conditions apply or should not be applied.