Thursday, 6 August 2015

How long can a patient living and receiving treatment outside hospital be considered to be “liable to be detained in a hospital for treatment”? Recent case law

A recent appeal to the Upper Tribunal has raised some interesting issues relating to the legal concepts of “treatment in hospital” and “liable to be detained” within the context of the Mental Health Act.
The case of SL v Ludlow Street Healthcare (Mental Health:All) [2015] UKUT 398 (AAC) (16 July 2015) concerned a patient, SL, who had diagnoses of mild learning disability and hyperkinetic disorder, associated with seriously irresponsible conduct, and in the past had been detained under Sec.3 for treatment, and at other times had been on a Community Treatment Order.
SL had more recently been detained under Sec.3, but was actually living in a care home on extended Sec.17 leave at the time he appealed to the Mental Health Tribunal.
Although it was established that he mainly resided in the care home, and only actually attended hospital fortnightly for psychology sessions, and monthly for the ward review, the Tribunal found that “it was not the time he spent at the hospital that mattered, so much as the extent to which his time there contributed to the decision-making of the clinical team.” He therefore remained on Sec.3.
He appealed to the Upper Tribunal on the basis that “almost all of the treatment that the patient received was being delivered in the community, so he no longer justified being subject to section 3.”
The Judge in the case considered that the crucial point to be decided was “whether it was appropriate for the patient to remain liable to be detained in hospital for medical treatment.” He made a clear distinction between “liable to be detained” and “detained”, as someone who is in law “liable to be detained” may not in fact actually be in hospital.
He referred to case law from the early 2000’s, in which the Judge did not consider there was any distinction between treatment “in” a hospital and treatment “at” a hospital. I remember looking at this case law with some bemusement at the time, as it did seem to me that there was a quite clear difference. Nevertheless, the Judge was satisfied with this case law, and applied it to the current case.
The Judge went on to consider Sec.145(c)(ii) MHA, which gives a broad definition of “medical treatment”, including “nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care”.
Taking these factors into account the Judge concluded that SL’s Sec.17 leave in itself, as well as the rehabilitation provided in the care home, constituted part of his treatment plan, which therefore rendered him both “liable to be detained” and to be receiving “treatment in hospital”.
As a consequence, the appeal was dismissed.
Incidentally, this broad interpretation of “treatment in hospital” runs counter to some parts of the new Code of Practice. In particular, I would take issue with the case example cited in Chapter 13 CoP, which purports to describe the interface between the MHA and the Mental Capacity Act. While this refers to an elderly lady with dementia who lacks capacity, some of the statements can be directly applied in the case of SL.
In the case example P is detained under Sec.3 MHA, and is treated, but when this treatment is finished, it is considered that she no longer needs to be in hospital, and should be placed in a care home. The CoP then states: “P no longer needs to be detained in hospital for care and treatment for the mental disorder. As such, the Act is no longer available.”

If this guidance were in fact true, then patients would have to be discharged from detention under Sec.3 once they were no longer considered to require treatment in hospital, and extended Sec.17 leave would not be available to the patient’s responsible clinician.

The other contentious implication of this CoP case is the idea that treatment for mental disorder could somehow magically cease. The SL case makes it very clear indeed that the bar for what constitutes “treatment” is set low, and it would be hard to argue that anyone with an ongoing mental health disorder did not require treatment. And that treatment does not even need to take place in a hospital for a patient to remain “liable to be detained”.

A lesson to be learned from this is not necessarily to believe everything you read in the Code of Practice.


  1. Nice one! This came up at work. Our local record is over two years!

  2. The corollary of this is that a lot of guidance about DoLS may be incorrect and that there may be a genuine lacuna in the law. If there isn't a glaring hole, I'd be interested in the issue being tested in a Court.

    It's a given that you can't be subject to DoLS and the MHA at the same time. It's part of the the legal DNA of DoLS. Legal textbooks give it as being uncontroversial that you can be subject to Guardianship, a CTO and s. 17 leave and DoLS at the same time. The only requirement is that there are no contradictory requirements about residence. I'd assumed that this was because being 'liable to be detained' wasn't the same thing as being detained under the MHA. Looking at this piece of case law and indeed considering some older case law that considered the legality of s. 17 leave as the so-called 'long leash' back in the 1990s, I now wonder whether I was considering the wrong issue and if treatment was the swaying factor.

    The 1990s case law, when the concept of a 'deprivation of liberty' was less well defined I think, the case law seemed to say that if a psychiatrist thought this was required, then s. 17 leave contained the same powers as s. 2 or s. 3 in relation to treatment. I may have misunderstood and instinctively dislike the idea of an important legal distinction turning on an arbitrary decision by a professional.

    I'd like to know whether being subject to s.17 leave authorises a deprivation of liberty or not? If it does, are people subject to DoLS and s. 17 leave doubly detained and is that in itself lawful? The textbooks would need to change. If it doesn't, and if s. 17 is always contra-indicated with a DoLS standard authorisation then there's a considerable gap in law that might impact on practice. It won't be possible to lawfully send an incapacitated person, who is currently subject to the MHA on leave to a venue where their support meets the 'acid test' criteria for a deprivation of liberty. Very obviously, this is a major issue as it may be necessary to test out someone's care plan by a period of leave.

  3. And I agree, that case study in the Code was hopelessly muddled. Firstly, it appeared to be considering some sort of 'comparitor' test which has never applied in the MHA and was squashed in MCA case law by the Supreme Court judgment and secondly, and as noted, because of the baffling statement that someone's treatment for their mental disorder had simply ceased despite their ongoing hospital stay and the continuing presence of their symptoms and their being thought serious enough that P should not return home but be institutionalised. Psychiatrists have long believed in a concept they describe as being 'active' treatment for a mental disorder. They generally means treatment of very acute needs or the response to very disturbed behaviour. This distinction is not given to us by statute, is not in case law (which indicates a wide definition for 'treatment' and hence treatment for chronic symptoms) but which has now crept into the Code of Practice by a back door!