Leave of absence

Section 17 allows a detained person out of hospital temporarily on leave of absence.

Background

Ultimately it is a matter for the Responsible Clinician, but:

The Mental Health Tribunal may recommend leave;
The Ministry of Justice must approve it in restricted cases; and
The RC will only grant leave having taken into consideration the advice of the other professionals involved in the case.

Chapter 27 of the Code of Practice deals with leave of absence.

The imposition of conditions, the requirement to remain in custody, and the revocation of leave and recall of the patient (see below) must all be justified on the ground that the RC considers it to be ‘necessary in the interests of the patient or for the protection of other persons’.

Leave of absence is a way for the RC to test the patient and assess risk. It may begin with escorted ground leave for a short duration, build up to unescorted community leave, and culminate with overnight leave to proposed discharge accommodation.

A patient with successful unescorted (as opposed to escorted) leave to the community (as opposed to just the hospital grounds) is often in a stronger position when arguing for discharge.

Conditions

The RC can attach conditions to the leave (s17(1)). These may include exclusion zones, or the non-consumption of alcohol or drugs.

In restricted cases the SSJ can effectively impose conditions by stating upon what conditions the approval is granted.

Duration

Leave is usually given for a specified time period, although it is possible to be given indefinitely; it can be extended while the patient is on leave (s17(2)). For instance it may be given for 30 minutes, or overnight, or for several days.

If leave is to be given for a period that will amount to more than seven consecutive days then a Community Treatment Order must be considered (s17(2A), (2B); see 3.6.1 above).

For ‘long leash’ extended s17 leave to be lawful, there must continue to be an element of hospital treatment (R (DR) v Mersey Care NHS Trust [2002] EWHC 1810 (Admin)^M, R (CS) v MHRT [2004] EWHC 2958 (Admin)^M. ‘Hospital’ is defined so widely that this encompasses out-patient reviews at a local Community Mental Health Treatment Base (KL v Somerset Partnership NHS Foundation Trust [2011] UKUT 233 (AAC)^M). ‘Treatment’ is defined so widely that the s17 leave and the rehabilitation provided outside hospital may themselves be part of the treatment plan (SL v Ludlow Street Healthcare [2015] UKUT 398 (AAC)^M, [2015] MHLO 60).

In DB v Betsi Cadwaladr University Health Board [2021] UKUT 53 (AAC)^M the patient had been on s17 leave for 11 months without any contact with any hospital. The Upper Tribunal held that the tribunal should have analysed the components of his treatment, as broadly defined in s145, then decided the extent to which they were being delivered in hospital, but had failed to do so. The Upper Tribunal decided that for it to remain “appropriate for [a patient] to be liable to be detained in a hospital for medical treatment” a significant component of his treatment must be in hospital, and that liability to detention is not a fallback when other options (e.g. CTO, C/D, MCA) are unsuitable or unavailable: if the statutory conditions for (liability to) detention are not met, the tribunal must direct discharge.

Remaining in custody

The patient may be required to ‘remain in custody’ during the period of leave (s17(3)); there is a power of conveyance associated with this requirement (s17(7)). This requirement applies, for instance, to:

Escorted leave where the patient must remain with a nurse; or
The situation where the patient is granted leave on the condition that he reside at another hospital. This can arise when a high secure hospital patient is given 6- or 12-month trial leave in a medium secure unit.
Extended escorted leave of absence, instead of conditional discharge (see HM Prison and Probation Service, 'Mental Health Casework Section: Guidance: Discharge conditions that amount to deprivation of liberty' (January 2019)).

Revocation and recall

The RC can revoke the leave and recall the patient to hospital if the patient’s section has not expired; this is done ‘by notice in writing given to the patient or to the person for the time being in charge of the patient’ (s17(4)). See also s18.

Also, the Secretary of State for Justice can recall a restricted patient.

Power to specify hospital units

If a particular hospital unit was specified when the patient was admitted then MoJ permission is required for s17 leave beyond the confines of that unit. Otherwise, the RC can informally give leave within the hospital grounds without using s17 at all. See Power to specify hospital units.