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.