I represent a s37 patient who is due to have a Tribunal. He is assessed as needing supervision on discharge due to risk to others. As he is not on a restricted section, I do not see that he can be subject to the new CD discharge with deprivations. There is a discharge destination proposal for him but I do not know what the legal framework would be.
Does anyone have any suggestions for this situation? A barrister’s opinion?
Not a barrister but have had a few cases like this.
I’m assuming the subtext (as you’ve not said explicitly) is that he has capacity otherwise he could be discharged with restrictions authorised under the MCA 2005.
A few years ago practitioners were exploring Inherent Jurisdiction but it’s reached a bit of a dead-end (see p.90-92 Cumbria v EG)
The only option really is extended s.17 leave but ICBs are hesitant as they’ll be dual-funding a bed and a community placement.
Hi Louise, I’m not a barrister but have been involved in a number of such discharges. For those who are NOT restricted who have capacity to decide about their community residence care and support, they are able to decide on any restrictions they require, even those that may otherwise amount to a deprivation of their liberty.
The Inherent Jurisdiction has been approached in a couple of cases and UTT also considered this matter (the EG case Zac has cited above).
The issue would be if your person is not content to agree to those restrictions that the clinical team consider necessary and proportionate and the clinical team do not believe it to be a safe discharge without those restrictive measures. In this case there would be an impasse, S17 leave could positively risk test the necessity and proportionality of restrictions and would allow your person to experience life under those restrictions which may help to progress the matters forward.
Hope that helps and that things become resolved for your person.
Thank you both for your replies.
There is some lack of absolute clarity around the question of capacity to decide on care and accommodation. The RC is considering long term s17 leave but this has not yet commenced. I’m inclined to think the Tribunal may be premature if this leave has not yet started and that it may be better to have a tribunal later on.
I appreciate the challenge but there would be an expectation that the patient’s capacity to consent to the restrictions has been explored so it is clear whether the issue is for a community DOLs alongside a CTO, around inherent jurisdiction or simply a level of restriction that cannot be agreed to unless under s17 as -
The presumption of capacity is important; it ensures proper respect for personal autonomy by requiring any decision as to a lack of capacity to be based on evidence. Yet the section 1(2) presumption like any other, has logical limits. When there is good reason for cause for concern, where there is legitimate doubt as to capacity to litigate, the presumption cannot be used to avoid taking responsibility for assessing and determining capacity. To do that would be to fail to respect personal autonomy in a different way.
— Royal Bank ofScot1and Plc vAB [2020] UKEAT 0266 18 2702
I appreciate you are already investigating this but the above has helped me in conversations with partners where people have not always understood the absolute need to have explored the decision related capacity question before agreeing next steps.