Section 17 leave suspension - Covid-19

I am currently in process of challenging a private hospital’s policy on suspending all s.17 community leave in the midst of the pandemic. I struggle to see how a blanket policy (regardless of the pandemic) is proportionate. There’s a basic principle of public law that statutory discretions shouldn’t be fettered by an inflexible policy, i.e. you can’t just refuse to do something because it’s policy, you need to consider the individual merits of the case. Has anyone recently challenged a trust’s policy on suspending all community leave due to the pandemic?

The annual CQC report on the Mental Health Act raises this issue: Page 7: Some services continued to uphold restrictions on patients’ movement, activities and leave for longer than seemed necessary, which we saw could have an adverse impact on patients’ wellbeing. Services should recognise the significant impact restrictions on leave of absence and activity can have on detained patients and ensure these are lifted as quickly and as safely possible to avoid very damaging ‘closed cultures’ from emerging.

Page 23, 45. You can report your concerns to the CQC - ask for the MHA reviewer team for the area. The report can be downloaded from: CQC, ‘Monitoring the Mental Health Act in 2019/20: The Mental Health Act in the COVID-19 pandemic’ (26/11/20).

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Leave doesn’t seem to have impacted many of my clients in relation to discharge. However just about to send a letter to the Chief Exec of a private hospital for one of my clients on a restricted section as at this stage a lot of his treatment needs revolve around having access to community leave. Wonder if it’s the same hospital…


Thank you @StevenR - I will await their response and see if anything positive comes from this.

Just for those interested- I was informed by my client today that the hospital director has allowed him daily unescorted leave. I raised the DHSC guidance, clear evidence within Code of practice re: restrictions/blanket policies and Sandison Case to challenge the appropriateness of their policy. So got the outcome I required!

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Good news - well done!

Could you share some details of the Sandison case? I could add it to Mental Health Law Online. Thanks.