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Andrew Parsons examines a helpful Upper Tribunal ruling on the relationship between Section 17 Leave and community treatment orders.
Since the Mental Health Act 2007 inserted the Community Treatment Order provisions into the Mental Health Act there has been the potential for overlap between a CTO and extended leave of absence under s.17. A choice between the two can often be difficult for clinicians. However, a recent case – KL v Somerset Partnership NHS Trust [2011] UK UT 233 (AAC) – has provided some guidance on the matter.
Facts
Patient KL was admitted under Section 3 suffering from paranoid schizophrenia with a chronic delusional disorder.
He was detained in hospital for a few weeks and then granted extended leave of absence under Section 17 subject to conditions that:
- He was to live at home with his wife.
- He had to attend outpatient appointments at a local community mental health treatment base every two weeks.
- If he failed to comply with these conditions the responsible clinician might recall him to hospital.
KL applied to the First Tier Tribunal (FTT) to be discharged. He argued that he did not meet the detention criteria because no part of his treatment plan provided for him to receive treatment in a hospital.
The FTT rejected KL’s application and he appealed to the Upper Tribunal.
Court Decision
The Tribunal rejected KL’s appeal. They referred to the extended definition of “hospital” in Section 145 of the Mental Health Act which states that it includes “any health service hospital within the meaning of the NHS Act 2006”. This means that it includes “any institution for the reception and treatment of persons suffering from illness…clinic dispensaries and outpatient departments maintained in connection with any such… institution”.
As the patient met with his key worker at an adult community mental health centre providing assessment and treatment, and because the key worker or CPN was working in conjunction with his responsible clinician it was held that the patient was receiving hospital treatment, albeit as an outpatient, and was thus within the definition contained within the Mental Health Act. (This decision is consistent with the previous case of R(CS) v MHRT [2004] EWHC 2958.)
Although the patient’s appeal was rejected the Tribunal also considered the issue of whether the patient should have been on Section 17 leave or whether a community treatment order might have been a better way to manage him. The FTT had clearly thought that a CTO was more appropriate as they exercised their power under Section 72 (3A) of the Act to recommend to the Responsible Clinician that he put KL on a CTO, directing him to notify the Tribunal office within a month whether this had been done. If not the Tribunal Judge was to be informed so he could consider reconvening.
Ultimately the RC did place KL on a CTO but the Upper Tribunal did take the opportunity to comment on such cases. It said that in a case where the FTT felt a CTO was more appropriate it may make a recommendation to that effect however if this recommendation is not followed, the FTT may discharge the patient.
Comment
This is useful clarification of the definition of “hospital” in terms of the detention criteria.
As for the use of Section 17 or a CTO, Section 17 (2A) requires the RC to consider a CTO when granting longer term leave (i.e. a specified period of more than seven consecutive days). The Code of Practice comments at Chapter 28 on how an RC should approach long term leave of absence. It suggests that Section 17 is more appropriate where the leave is on a trial basis, particularly if it is unclear as to how the patient will cope in the community.
If any Tribunal takes the view that a CTO is appropriate, it has the power to recommend this to the RC. If he takes a different view, the Tribunal has a power (but not a duty) to discharge the patient. It is likely that that will occur in only very rare circumstances: if the Tribunal is satisfied that the detention criteria are not met, it must discharge the patient. It is therefore likely to be a rare situation where the patient meets the detention criteria, the RC does not think a CTO is appropriate but the Tribunal wishes to discharge. [Note: the RC’s refusal to make a CTO could always be challenged by the patient applying for judicial review]
Andrew Parsons is a partner at RadcliffesLeBrasseur. He can be contacted by email at
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Where now for social enterprises, mutuals and public procurement? David Hansom explores some of the wider issues around the Big Society agenda.
A key tenet of the Government's Big Society agenda is the expansion of the voluntary sector to deliver more services locally. One of the key ways in which this shift from centralised, "top down" service provision might be achieved is through championing the roles of mutuals and social enterprises as structures through which to deliver these services.
The Government is keen to develop the social enterprise sector and aims to do this in part through new legislation. Parliament is currently considering the draft Public Services (Social Value) Bill – a private member's Bill put forward by Chris White MP but backed by the government – which seeks to entrench public service delivery through mutuals and social enterprises. The Bill puts obligations on public bodies to consider the role of social enterprises and mutuals when putting contracts out to tender and obligations on the Secretary of State to take steps to encourage the wider public sector to work with social enterprises and mutuals.
What is the difference between a social enterprise and a mutual?
The Government uses the terms 'mutual' and 'social enterprise' relatively interchangeably and as a catch all to describe a variety of different structures and models across the voluntary sector. There are differences in the detail, however, and no 'one size fits all' solution.
Broadly, mutuals are businesses which are run and owned (in whole or in part) for the benefit of its employees and/or members of the community or third party stakeholders, the so-called "John Lewis model". A social enterprise is a business which exists to deliver social or environmental benefits. Social enterprises and mutuals can take many forms including companies limited by guarantee, companies limited by shares, limited liability partnerships, general partners, community interest companies, non-profit distributing organisations, industrial and provident societies or as charities. A mutual can also be a social enterprise although this is not a requirement. Some of the most innovative models are those which involve charities, such as charitable social enterprises (either charities or groups of companies with a separate charitable arm).
In each case, the driver for the choice of structure needs to reflect specific local needs including the tax position, ability to raise and harness new types of finance, the control over membership and entry/exit arrangements and any legal constraints affecting the sector.
Typically, a mutual will be pump-primed through being awarded a services contract by the public sector body that was previously responsible for delivering the services. For example, many Primary Care Trusts are currently looking to let such contracts to new start up social enterprises, with a view to those bodies eventually taking on a wider trading role and potentially delivering services for the wider population and, in some cases, making a commercial profit.
Tensions with public procurement law?
As a legally distinct body, the newly formed mutual or social enterprise will need to be awarded a contract to deliver the services by the public body. Such a contract will trigger public procurement obligations on the part of the public body, even if many of the services being outsourced are Part B services which do not require full compliance with the EU procurement regime if there is no cross border interest. It is difficult to see how such arrangements could be exempt from procurement obligations, for example on the basis that the new organisation can be legitimately treated as a Teckal company. This case law exemption, if made out, broadly means no procurement would arise between the public body and social enterprise on the basis that it is effectively under the same control as an in-house department of that public body. The limitations on the Teckal exemption in terms of the three tests (particularly the requirement that the majority of services are provided only back to the public bodies who are participating in the company) are problematic when applied to the model of many social enterprises and mutuals. As we have seen from the LAML decision, any reliance on this exemption is strictly interpreted by the Court.
This is one of the real tensions with the new localism agenda – on the one hand, the Government's drive towards relationship based, local purchasing as envisaged through the Open Public Services White Paper, against the European Commission's focus on transparency, non discrimination and equality of treatment required to ensure access to opportunities across every EU member state. Key elements of the model do not sit at all comfortably with the Commission's stance or the current rules and the only way to ensure procurement compliance in many cases is to open the contract up through the required level of advertisement and run a fair and transparent process to choose the best bidder.
This tension is evidenced clearly by the Government response to the recent EU consultation on the future of public procurement, noting as it did that it would seek an exemption to the application of the public procurement rules to new social enterprises and mutuals for a period of three years from start up. This exemption is perhaps unlikely to curry favour with the Commission because of the risk of a piecemeal approach across the EU (although given the breadth of the review being undertaken, nothing can be ruled out) and, in the meantime, there is procurement challenge risk in directly awarding a contract which would be otherwise caught to the social enterprise or mutual.
Indeed, we have recently seen the first judicial review challenge in this field. As reported by Local Government Lawyer plans to award a health services contract to a community interest company by NHS Gloucestershire have been halted following a potential injunction application from concerned residents. Whilst there are ways to manage and mitigate, but not remove, such risks, we can perhaps expect to see many more of these types of challenge as the impact of public spending cuts reduces the number of other new opportunities coming to market.
Setting up a new social enterprise or mutual can be tricky and expert advice on key issues such as structuring, charity law, tax, property, staff/TUPE, and public procurement can really help early on when formulating your strategies. As with much in the current climate of change, authorities will want to watch this space and learn from unfolding events.
David Hansom is a partner and head of Veale Wasbrough Vizards' public sector group. He is involved in a wide range of social enterprise and mutual companies both in terms of creation/structuring and all related issues. David can be contacted on 0207 665 0808 or via email to
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Can an employee who has two different jobs continue working for one employer whilst being signed off sick from another? Mike Smith looks at a recent case which has helped clarify this issue further.
In Perry v Imperial College Healthcare NHS Trust the employee (‘Ms P’) worked for both Imperial College Healthcare NHS Trust (‘Imperial’) and Ealing Primary Care Trust (‘Ealing’). The work she undertook at Imperial involved cycling to patient’s homes and climbing stairs, whilst the work at Ealing was desk bound only. Her combined hours did not exceed 48 each week.
Ms P had a knee condition which prevented her carrying out her duties for Imperial; she was therefore signed off sick and was in receipt of sick pay which included statutory sick pay. She was however able to continue with her Ealing job as this was completely separate in nature and did not put any stress on her knee. This was confirmed in writing by her GP.
Imperial carried out a disciplinary procedure after discovering that Ms P was continuing to work for Ealing whilst she was signed off sick. Ms P was subsequently dismissed on the basis that she had "intentionally defrauded a large amount of money" from Imperial as she was receiving sick pay whilst continuing with paid work elsewhere. Ms P appealed this decision.
On appeal Imperial changed its reasoning for the dismissal, and sought to rely on a clause in Ms P’s contract which prevented her from working elsewhere during sick leave without prior permission from her manager. Imperial therefore raised the fact that her failure to inform them that she was fit for desk-based work had denied them the opportunity of redeploying her. Ms P argued that she did not think this particular clause applied to her and that she was of the view that it referred to taking up a new job whilst on sick leave, not continuing with an existing second job.
The dismissal was confirmed, with Imperial going so far as to state that Ms P had acted in bad faith in failing to seek permission and therefore had deliberately sought to deceive.
Ms P brought a claim for unfair dismissal which was dismissed by the Employment Tribunal and so she appealed to the EAT.
The Decision
The appeal was upheld by the EAT who found that the dismissal was unfair. They held that an employee can be medically unfit for work under one contract, while still capable of work under another contract. In this case Ms P was not paid twice as there was no overlap in the hours of the two roles. The original decision to dismiss on the basis of fraud was therefore legally and factually misconceived.
In their Judgment the EAT referred to a passage from HMRC Employer Helpbook for Statutory Sick Pay which deals with employees who work under two separate contracts. Provided the contracts are not with the same employer or two associated employers (which these were not), the employee can claim statutory sick pay if incapable of work under one contract, while still capable under the other.
The EAT was of the view that the requirement in Ms P’s employment contract to seek permission was not designed to provide Imperial with information regarding redeployment but to ensure that the second job with Ealing was consistent with the employee being unfit for the duties with Imperial and that it would not hinder a return to her role with Imperial. The EAT held there was no reason for Imperial to have been concerned about either issue as the employee had provided a letter from her GP which addressed this adequately.
The compensation to Ms P was, however, reduced by 30% to account for her failure to seek permission to carry on her second job for Ealing. The EAT held that the contractual obligation to seek permission for other work during sick leave did apply to the employee despite her reasonable belief that it did not. Imperial were therefore entitled to doubt the employee’s good faith at the time.
What does this mean for employers?
The decision in this case highlights two key points for employers in the handling of both misconduct and sickness:
- The employer should not look for new grounds for a dismissal if it is found that the original grounds are incorrect or unsubstantiated. If an employer is made aware of a new reason for a dismissal then this should be dealt with in a new disciplinary process; and
- An employee can claim sick pay from one job whilst continuing to work for another employer. This will only cause a problem if the employee is not medically unfit for their first job and/or they carry on their second job in the hours they would have otherwise been working for the first employer. Where an employee is medically unfit for a role, the employer must ensure that they consider redeployment and, if appropriate, seek advice from occupational health. It is key to remember that it is the employer’s responsibility to ask questions about redeployment and it is not the case, as Imperial argued, that the employee should do more to let the employer know about possible redeployment and/or her capabilities at that time.
Mike Smith is a solicitor at Bevan Brittan. He can be contacted at
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Some 85% of procurement cases investigated and resolved over a three-month period as part of the government’s Mystery Shopper initiative resulted in either immediate or future changes to the tender, the Cabinet Office has claimed.
The initiative was set up by the government to give businesses the chance to report instances where SMEs or other suppliers were shut out of the market.
The Cabinet Office said that 14 new cases – involving local authorities, housing associations, NHS bodies, a government department and other public bodies – were resolved between June and September 2011.
Of these, 12 led to changes while one was resolved without intervention and another was investigated and found to be sound.
The Cabinet Office said pre-qualification questionnaires were still the most common issue (in five out of 14 cases), followed by unfair disqualification on financial pre-requirements (in two cases).
The contracting authorities involved were:
- Local authorities: North Tyneside Council; Thurrock Council; Sunderland City Council; Doncaster Council
- Housing associations: Teign Housing/West Country Housing; Anchor Housing Trust
- NHS Trusts and related bodies: Birmingham Children’s Hospitals NHS Foundation Trust; The Royal Wolverhampton Hospitals NHS Trust; Birmingham Community Healthcare Trust; NHS Surrey; NHS London Procurement Programme
- A Government department: the Department for International Development
- Other public bodies: The Office of Rail Regulation; The University Catering Organisation
In the North Tyneside case, the local authority abandoned a procurement process for a tender for the supply of vehicle parts. This came after a supplier was disqualified from the process because the concept of manufacturers’ recommended retail price (MMRP) did not apply to the parts he supplied.
Following the intervention of the Mystery Shopper team, the council reconsidered its approach and removed references to MRRP in its subsequent procurement.
In the Sunderland case, a small business that was successful in a tender for a framework agreement was concerned that the award notice enabled competitors to work out their pricing structure.
The local authority undertook where possible to present future winning scores in a way that does not allow prices to be identified in the contract notice.
The Mystery Shopper initiative has seen more than 80 cases so far, almost half of which have been resolved. Cabinet Office action has led to direct changes in 81% of cases since the scheme was launched, it was claimed.
Cabinet Office Minister Francis Maude said: “The publication of Mystery Shopper results shows how effective government action can level the playing field for SMEs. This is yet another lever, in addition to our actions to scrap unnecessary PQQs and publish all contracts on contracts finder. We will continue to publish these cases regularly so that issues are transparent.”
The outcomes of the 14 cases can be seen here.
Philip Hoult