DB v Betsi Cadwaladr University Health Board [2021] UKUT 53 (AAC)

Discharge from long s17 leave (1) 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. 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. (2) The patient in this case had been on s17 leave for 11 months without any contact with any hospital. 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. (3) The case was remitted to the MHRT for Wales.

Note

Spelt as "Betsi Cadawaldr" in the written judgment.

Date

Published on Judiciary website on 7/4/21 and BAILII on 11/4/21.

Note

This case also illustrates a potential problem of using extended s17 leave to get round difficulties caused by Article 5. Though "hospital" (KL v Somerset Partnership NHS Foundation Trust [2011] UKUT 233 (AAC)) and "treatment" (SL v Ludlow Street Healthcare [2015] UKUT 398 (AAC)) have been defined broadly.

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ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below. For full details, see their index card for this case.  

DB v Betsi Cadawaldr University Health Board

[2021] UKUT 53 (AAC)B

2021 March 3

Upper Tribunal Judge Jacobs

Mental disorder — Detention— Discharge of patient — Patient liable to be detained on mental health grounds— Patient released on supervised leave in the community with no required hospital attendance in several months— Patient applying to be discharged— Whether patient to be discharged— Whether conditions met for continued liability to detention— Whether significant component of treatment delivered in hospital— Mental Health Act 1983 (c 20), ss 3, 72(1)(b)

The patient was liable to detention in hospital on mental health grounds under section 3 of the Mental Health Act 1983 but had been allowed on supervised leave in the community pursuant to section 17. He was living in a care home, where he was complying with his treatment regime, and he had not needed to attend hospital for the past 11 months. The patient applied to be discharged pursuant to section 72(1)(b) of the 1983 Act on the basis that his care package did not contain a significant component of hospital treatment and thus it was no longer “appropriate for him to be liable to be detained in a hospital for medical treatment” within the meaning of section 72(1)(b)(i). Refusing the application, the Mental Health Review Tribunal for Wales found that the administration of medication was a significant component of the patient’s care plan and that, while he was receiving appropriate and necessary treatment while on leave and living at the care home, it was likely that he would discontinue his medication if discharged. It concluded that the patient ought to remain liable to detention as the discipline of recall was necessary to ensure compliance with medication and necessary for his health and safety and for the protection of others.

On the patient’s appeal—

Held, appeal allowed. By section 72(1)(b) of the Mental Health Act 1983 the tribunal was obliged to direct the discharge of a patient unless specified conditions were met. To meet the condition in section 72(1)(b)(i) it was necessary for a significant component of the patient’s treatment to be in hospital. Thus, while it was undoubtedly the case that the administration of medication was a significant part of the patient’s care plan, the tribunal ought to have analysed the components of his treatment to decide the extent to which they were being delivered, or needed to be delivered, in a hospital. The tribunal’s finding that the patient needed the discipline of liability to detention, without which he would not take his medication, was not sufficient to overcome the need for a significant proportion of his treatment to be in hospital. There were other options available to ensure that a cycle of discharge and admission could be avoided, such as conditional discharge or community treatment orders. In any event, liability to detention could not be used simply because other possible options were not suitable or available and thus, where there were no options under the 1983 Act, the proper and only course was to discharge the patient. In light of the tribunal’s error of law the matter would be remitted for reconsideration by reference to up-to-date evidence of the patient’s condition and treatment (paras 7–9, 11–13).

R (CS) v Mental Health Review Tribunal [2004] MHLR 355 applied.

Andy Howarth, solicitor (of GHP Legal, Oswestry) for the patient, by written submissions only.

The health board made no submissions on the appeal.

Jo Moore, Barrister

Referenced Legislation

Mental Health Act 1983 (c 20), ss 3, 72(1)(b)

CASES DATABASE

Full judgment: BAILII

Subject(s):

  • Section 17 leave cases🔍

Date: 3/3/21🔍

Court: Upper Tribunal (Administrative Appeals Chamber)🔍

Cites:

Judge(s):

Parties:

  • DB🔍
  • Betsi Cadwaladr University Health Board🔍

Citation number(s):

What links here:

Published: 7/4/21 19:21

Cached: 2021-11-29 23:12:29