Ian Robinson, Managing Partner, reports on a case which potentially affects patients detained under the Mental Health Act 1993.
A mental patient who has been granted leave of absence from hospital to go on a day trip in the custody of hospital staff does not ‘leave hospital’. Whilst this may seem counter intuitive, the definition is relevant to the services provided to the patient and how they are paid for.
Since August 2016, the claimant (the patient) had been granted daily leave of absence from hospital under section 17 of the 1983 Mental Health Act to go on bus trips. It was a condition of his leave of absence on those trips that he was escorted on each occasion by two members of hospital staff. The purposes of the leave of absence were stated to be leisure, treatment and relaxation. Once a week, the claimant’s mother made the journey from her home, 120 miles away, to visit him and accompany him on the trips.
Until the claimant’s 18th birthday, her expenses were reimbursed by the local authority under section 17 of the Children Act 1989 as part of the assistance provided to the claimant as a child “in need”. That funding ceased, however, when the claimant turned 18 and, since then, his mother has had to bear the costs of visiting him herself from her own social security benefits.
The mother was arguing that her expenses should be paid by the local authority as her son was leaving hospital care on the weekly trips and as such, Section 117 of the Mental Health Act 1983 should apply. This section applies to persons who are detained under the Act - then cease to be detained and leave hospital. In this event, it is the duty of the local social services authority to provide after-care services for the person.
The court found that the day trips were part of the treatment which the hospital was providing to the claimant, so that the services provided to the claimant in taking him on escorted day trips did not constitute “after-care services”. Therefore, the claimant did not “cease to be detained” or “leave hospital”. That said, even if he had been a person to whom the rule applied, it was difficult to see how that could possibly have enabled his mother to recover her travel costs. She made the visits as his mother and there was no suggestion that she was authorised to provide any services on behalf of any clinical commissioning group or local authority.
Having lost the case, a more practical solution was fortunately found. Arrangements were made to move the claimant to a residential placement much nearer to his family home.
If you would like assistance in relation to the mental health act, call Ian on 01329 822 333 for further information.
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