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The compulsory detention of patients who have a legal right to their liberty needs to be clarified. Roger Pearson reports.
A High Court judge has given the go-ahead for a legal challenge over the compulsory detention of mental patients after orders have been made for their discharge.
At the same time, Justice Sullivan ordered that the Health Secretary should be alerted to the pending action.
Granting leave for one patient to seek judicial review of a decision to deny her liberty, the judge said it was clear that an "unforeseen problem" had arisen which was causing problems for health authorities.
In addition to granting leave for the woman to mount court action, he said that consideration should also be given to hearing a second, similar case so that the law could be clarified.
The judge had been told that the woman in question was deprived of her liberty for six months and he considered there should be an "authoritative ruling" to define the scope of responsibility health authorities have in such cases.
The authority involved, Camden and Islington Health Authority, is said to have failed to provide her with psychiatric supervision in the community. By doing so it had prevented her discharge from a regional secure unit, even though her release had been recommended by a mental health tribunal.
In August last year, the tribunal ruled that the woman was not suffering from mental illness of a nature or degree which made it appropriate for her to be detained in hospital for medical treatment.
It also took the view that the patient's detention was unnecessary for her health or safety, or for the protection of others.
A condition of her discharge, however, was that she should live at her family home, cooperate with a psychiatrist and comply with any treatment prescribed.
But her release was blocked after the consultant who was to take responsibility for her refused to do so.
He disagreed with the tribunal's ruling and took the view it would be unsafe for her to be released. As a result she has remained in detention and a second consultant has also refused to give supervision in the community.
When the case comes to court her lawyers will argue that it is wrong that she should remain detained in hospital when the tribunal has held that she is entitled to her liberty.
They claim that the health authority is under a duty to provide psychiatric supervision in the community to enable her and others like her to be released.
Failure to observe the decision of the tribunal is said to be a breach of the European Convention on Human Rights and to be unlawful.