DB v Betsi Cadwaladr UHB. 2021;

R (Barker) v BHB Community Healthcare NHS Trust. 1998;

R (CS) v Mental Health Review Tribunal and another. 2004;

R v Hallstrom ex parte W. 1986;

Welsh Ministers v PJ. 2018;

Leave of absence under the Mental Health Act 1983

11 August 2022
Volume 31 · Issue 15


Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers a recent decision of the Upper Tribunal that limits the use of leave of absence provisions when testing a detained patient's rehabilitation

Patients detained in hospital under the Mental Health Act 1983 are in legal custody and must be given lawful authority to be absent from the detaining hospital. The leave of absence provisions of the 1983 Act are set out in section 17 and give authority to the responsible clinician to:

‘Grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital subject to such conditions (if any) as that clinician considers necessary in the interests of the patient or for the protection of other persons.’

Mental Health Act 1983, section 17(1)

Leave of absence is used when a patient is to be absent from the detaining hospital, such as when they require inpatient treatment at a general hospital or to allow a patient access to local amenities for short periods to benefit from fresh air and meaningful activities. The responsible clinician has wide powers to grant the leave, subject to any conditions necessary to protect the patient or others. This includes directing that the patient remains in the custody of a member of staff of the detaining hospital, or it is possible to authorise any other person to have custody of the patient (Mental Health Act 1983, section 17(3)). The responsible clinician can revoke the leave and recall the patient to hospital where this is necessary in that patient's interests or the protection of others (Mental Health Act 1983, section 17(4)).

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