Return of the long leash: Control in the community

Mental Health Nursing,  Jan 2000  by Griffith, Richard,  Bowen, Tony

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Much attention is focused currently on the issue of control of patients outside hospital, particularly in the light of goverment plans to introduce community treatment orders. But RICHARD GRIFFITH and TONY BOWEN suggest that recent legal judgements have also led to an increase in doctors' powers over detained patients allowed extended leave in the community. Mental Health Nursing 2000, 20, 1: 15-18

The courts have once again caused community psychiatric nurses to reconsider their practice in respect of the care and rehabilitation of patients subject to detention. In two recent rulings a more pragmatic approach to renewing the detention for treatment of patients has been adopted. This article examines the argument that the judgements represent increased medical discretion over patients, who are now likely to be detained for longer. As such greater use will be made of extended leave of absence, under section 17 of the Mental Health Act 1983. This will result in a return to a 'long leash' method of controlling people with mental health problems in the community.

Extended leave

A responsible medical officer (RMO) may grant leave to any unrestricted detained patient under the provisions of section 17 of the Mental Health Act 1983. The period a patient spends on leave is determined by his or her RMO. A patient may be kept on leave of absence up until the time the section is next due for renewal. Therefore a person who has just had his or her detention for treatment renewed for 12 months could be granted leave of absence that would last for nearly a year.

A patient on leave of absence continues to be liable to be detained; that is, the RMO may apply conditions to the leave that are necessary in the interest of the patient or for the protection of others. The conditions might include escorted leave in the custody of a member of staff such as a community psychiatric nurse. While on a leave of absence a patient must comply with conditions imposed by the doctor. Failure to comply with the leave conditions could result in the leave being revoked and the patient returned to hospital.

The leave of absence provisions give the multidisciplinary team firm control over a patient in the community. It is of little surprise, therefore, that in the first few years following the introduction of the Mental Health Act 1983 wide use was made of leave of absence with patients often being recalled towards the end of their detention to have it renewed and then returned to the community on a further lengthy period of leave. This practice became know as the 'long leash' method of control.

The Hallstrom ruling

This practice was challenged in a 1986 case.1 The applicants, W and L, had been admitted to mental hospitals on many occasions. W was living in a hostel but refusing to take medication. Towards the end of her period of detention she was admitted to hospital for one night, the detention renewed and then granted leave of absence under section 17.

L was detained for treatment and was granted leave of absence to live at home. He refused to continue to take prescribed medication. His RMO reported to the hospital managers that it was necessary for his health to receive treatment that required his detention, and they renewed the authority for his liability to be detained, which had been due to expire. He remained at home.

The court held that a person could be detained for treatment in a mental hospital only when he or she requires in-patient treatment. There is no power to detain a person to administer treatment to which he or she does not consent and which does not require in-patient treatment. The judge in the case made a distinction between being 'detained' in a hospital and being 'liable to be detained' in a hospital. Therefore, someone on leave of absence from a hospital could not be regarded as detained in a hospital. There was no power under the Mental Health Act 1983 to give treatment to a mentally disordered person who withholds consent unless he or she is detained in a hospital or had first been detained and been given leave of absence under section 17. Furthermore, unless dear statutory authority to the contrary exists, no-one is to be detained in hospital or undergo medical treatment or even to submit to a medical examination without his or her consent.

Following the judgement in this 1986 Hallstrom case, RMOs have followed the ruling that patients should not have their detention renewed under section 20 of the Mental Health Act 1983 while on leave of absence. 'Parliament did not intend that the provisions for renewal should embrace those liable to be detained but not in fact detained."

Furthermore, a patient cannot be recalled to hospital for the purpose of renewing his or her liability for detention if the intention is that the patient will return to live in the community once the formalities of renewal have been completed.,

Return of the long leash

However, in B v BHB Community Healthcare Trust (1998)3 the Court of Appeal modified the conditions under which a patient on an extended leave of absence may have his or her detention renewed. Melanie Barker appealed against the decision of the High Court to dismiss her applications for habeas corpus and judicial review against BHB Community Healthcare NHS Trust and Dr Jason Taylor, a consultant psychiatrist, in relation to the renewal of her detention. The applicant was admitted to hospital and believed to be suffering from drug-induced psychosis. She was diagnosed as having a psychopathic disorder and was made the subject of a treatment order for six months under section 3 of the Mental Health Act 1983. She was detained in hospital but was given leave under section 17 of the Act to be absent from the ward at certain times. Shortly before the order expired the consultant psychiatrist responsible for supervising her prepared a report and completed an application form for the purpose of automatically renewing the order for a further six months. He expressed the opinion that Ms Barker was suffering from psychopathic disorder. Furthermore, it was necessary in the interests of her health and safety and for the protection of others that Ms Barker should receive treatment, which could not be provided unless she continued to be detained as an in-patient.