The legal issues around delayed discharge of individuals with learning difficulties from Mental Health detention

Many local authorities and Clinical Commissioning Groups are struggling with the increasingly difficult problem of making arrangements for the transfer to community settings of individuals who have been detained in mental health hospitals with complex care needs.  This issue has now gained greater prominence due to a well-publicised case reported by the BBC[1] where a patient had been kept in hospital for 8 years whilst the CCG and the local authority tried to find a suitable community setting for the patient despite him being ready for discharge under the Mental Health Act 1983 (“MHA”).  The BBC reported that over a hundred people with learning difficulties and autism had been held in mental health units for over 20 years.  This was already a serious problem prior to covid[2], and the pandemic has worsened the situation.

The problem of discharging mental health patients safely into appropriate community settings is a small part of a much larger problem of delayed hospital discharges, which was highlighted by the National Audit Office in May 2021.  The headline message from the NAO was that the NHS in England must “get a grip “ on the delays patients face in being released from hospital.  It further said that delayed discharges caused unnecessary harm and wasted money costing an estimated £820m a year.  However, in practice, it can be grossly unfair to blame NHS bodies because the problem is very often that there are insufficient appropriate and specialist facilities in the community to enable the NHS to deliver a safe discharge from hospital care.  If there is nowhere for the patient to go, a safe discharge is impossible.

A lack of appropriate specialist community facilities and the failure of the private sector care market to provide sufficient facilities for adults and children to meet demand is well documented, which also lay behind the complex issues surrounding the discharge of young people into settings where they are deprived of their liberty, which this newsletter has been documenting. That concern has led the Court to refuse to authorise deprivations of liberty at an unsuitable placement even if no other placement has been identified: see Wigan BC v Y (Refusal to Authorise Deprivation of Liberty) [2021] EWHC 1982 (Fam).

Discharging patients with complex needs from hospital MHA detention is equally problematic.  The background is usually that the Responsible Clinician has reached the opinion that the patient is ready to be discharged from detention under section 3 MHS and thus the responsibility falls on the relevant local authority and CCG under section 117 MHA to arrange “after-care” services.  That can often lead to a life-long duty to provide a hugely expensive package of accommodation and care services to the former mental health patient. However, many local authorities and CCGs face the problem that they do not operate appropriate facilities and there are simply no appropriate facilities in the public or private sector which can meet the patient’s needs, particularly if the care regime is such that, even once the patient is released from detention, the restrictions on the patient’s movement mean that the patient is still being deprived of his or her liberty.

Arranging inappropriate facilities gives rise to serious legal issues but failing to arrange appropriate facilities can also lead to claims because those acting for the patient can claim that the local authority and the CCG are failing to discharge their duties, which could constitute a breach of the patient’s human rights.  In the House of Lords judgment by Lord Bingham in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, the ECtHR observed as follows:

“Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world…The preservation of mental stability is in that context an indispensable precondition to the enjoyment of the right to respect for private life.”

So local authorities and CCGs can be stuck between a rock and a hard place, with human rights being breached by a non-discharge and no ready options for discharge.  It can be that the only realistic option is to create bespoke facilities for a single patient, often at a cost of over £1M per year.  Local authorities and CCGs facing these problems are increasingly seeking specialist legal advice to manage a risk of legal action against them.

General practical Guidance for local authorities and CCGs is as follows:

1. The section 117 duty only arises on a discharge from a section 3 MHA detention, not a detention for assessment under section 2 detention.
2. The duty to start organising section 117 MHA package of accommodation and services arises once the RC has indicated that the patient is ready to be discharged. That is the point at which local authorities and CCGs have to start planning for a safe discharge.
3. Local authorities and CCGs are entitled to ask themselves if the patient can be safely managed in the community. If not, they should seek specialist advice on whether the proposed discharge is lawful.
4. If there is a lawful proposed discharge, the RC is able to advise on accommodation, staffing, training and care plan issues but the decision-makers are local authorities and CCGs, not the RC.
5. If the patient has specialist needs, capital may be available to create a placement from NHS England’s NHS Mental Health Implementation Plan 2019/20–2023/24.
6. If a proposed discharge is to a placement other than a care home and involves a proposed deprivation of liberty for a person who lacks capacity to make their accommodation and care decisions, an application should be made to the Court of Protection to authorise the deprivation of liberty.
7. Apart from the circumstances in paragraph 6, the Court of Protection almost always has no role in making discharge arrangements, even if the patient lacks capacity to make their accommodation and care decisions.

However, there are usually no straightforward or simple solutions.

David Lock QC specialises in medical law and is a Visiting Professor in Practice at the London School of Economics.

[1] See https://www.bbc.co.uk/news/uk-59388886

[2] See https://www.bbc.co.uk/news/health-38517648

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