Mental health law briefing 221 – Use of Section 17 leave for treatment of physical disorder
When patients detained under the Mental Health Act require treatment for a physical disorder unconnected with their mental disorder in a general hospital, they are commonly given leave under Section 17 to attend that hospital. Uncommonly, where the period in the general hospital is likely to be extended, the detention may be formally transferred to that hospital under Section 19. However, Section 17 leave is much more common.
The court has recently had to consider whether that approach is lawful when the patient lacks capacity1.
Patient AB was a 34 year old lady with cardiac problems that required surgery. It was also proposed to remove her lower teeth. She was detained in hospital under Section 3 of the Mental Health Act suffering from both a learning disability and mental illness. She lacked capacity to make decisions about her medical treatment.
The local health board applied to the court for a declaration as to whether it would be in her best interests for the proposed surgery to go ahead. It was proposed that she would be granted Section 17 leave to the relevant general hospital for the treatment to be undertaken.
Having considered the risks and the fact that the proposed treatment would undermine the patient’s personal autonomy, because she was at risk of dying without the treatment, the court concluded that it was in her best interests to undergo both of the proposed procedures.
Use of Section 17 Leave
The court also considered the legal basis for the detention of AB during the proposed procedures. Both before and during the treatment she would be subject to restraints that the court concluded would amount to a deprivation of her liberty. It found that this would be a further deprivation of liberty to that which she was already subjected because of her detention under the Mental Health Act and accordingly separate authority for that additional detention was required.
As the patient lacked capacity the question arose as to whether a DoLS Authorisation would suffice but the court found that she was either within Case A or Case B of Schedule 1A and thus ineligible.
Accordingly the court held that the deprivation of liberty that would occur as a result of the proposed medical treatment required authorisation by the court under its inherent jurisdiction.
Many practitioners may find this decision surprising given the common use of Section 17 to authorise treatment in a general hospital for physical disorder. Where the patient lacks capacity and further deprivation of liberty is required, this case would suggest that court authority is required. Obviously if the patient has capacity notwithstanding their detention under the Mental Health Act, then the issue would not arise if the patient refused treatment for physical disorder unconnected with their mental disorder.
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1. A local health board –v- AB  EWCOP31.
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.