28/03/2019

Our analysis of the Supreme Court’s decisions regarding; deprivation of liberty, of capacitated patients, with CTOs and Conditional Discharges; the Ministry of Justice’s Guidance for Conditional Discharges and the potential use of the Inherent Jurisdiction.

 

Cases

Secretary of State for Justice v MM [2018] UKSC 60 and Welsh Ministers v PJ [2018] UKSC 66 and Hertfordshire County Council v AB [2018] EWHC 3103 (Fam)

Relevant Topics
  • Discharge
  • Patient with capacity;
  • Community Treatment Order ("CTO")
  • Conditional Discharge ("CD") of Restricted Patients
  • Deprivation of Liberty ("DoL")
  • Patients detained under the Mental Health Act 1983 ("MHA")
  • Mental Capacity Act 2005 ("MCA")
  • Inherent Jurisdiction
  • First Tier Tribunal (“FTT”) and Upper Tier Tribunal (“UTT”) (together the "Tribunal")
  • Court of Appeal (“CoA”)
Practical Impact
  1. Cannot use a condition of a CTO or a CD to authorise an Article 5 DoL;
  2. Check if:
    a.    Patient truly has capacity; and
    b.    Whether restrictions are really necessary or could be reduced to not be an objective DoL;
  3. For an incapacitated patient consider using:
    a.    S.17(3) long-term leave in custody (but this has its complications); or
    b.    Court of Protection (“CoP”) Order / DoLS Standard Authorisation ("DoLS SA") to authorise an Article 5 DoL in conjunction with a CTO / CD;
  4. For a capacitated patient, consider using:
    a.    S.17(3) long-term leave in custody (but this has its complications); or
    b.    Inherent Jurisdiction (but the Ministry of Justice (“MoJ”) doesn’t support this);
  5. Capacitated patients are likely to remain in hospital for longer than incapacitated patients.

MoJ has published Guidance on Conditional Discharges Amounting to a Deprivation of Liberty:

  • Use s.17(3) or CD + CoP Order / DoLS SA:
  • N.B. Do not use MCA where rational for objective DoL is primarily protection of public;
  • Do not use the Inherent Jurisdiction;
  • “Notional/technical” recall of CD and immediate s.17(3).
Summary/Comment

Principle of Legality

  • Fundamental rights cannot be overridden by general or ambiguous words;
  • Unless there is an express power to override them, or, it is necessary (to prevent the purpose of the statute from being frustrated) to imply such a power – the Court’s presume in favour of the fundamental right.

CTOs

  • SS.17A-F MHA do not provide an express power to restrict freedom;
  • Purpose of a CTO is to “allow suitable patients to be safely treated in the community…to prevent relapse and any harm…that this might cause…to help patients to maintain a stable mental health outside of hospital and to promote recovery.” (Code of Practice to the MHA Para 29.5)
  • The purpose of the CTO is not frustrated if a power to restrict freedom is not implied – therefore, principle of necessary implication is not made out;
  • Parliament couldn’t have intended the power to restrict freedom because:
    • CTOs do not provide a power for compulsory treatment, and it would be absurd to suggest that in those circumstances, Parliament could have intended a greater interference with fundamental rights that would arise from a power to restrict freedom;
    • There is an absence of detailed rules to support DoL in community under a CTO.

Conditional Discharges

  • S.73 of the MHA doesn’t provide an express power to restrict freedom;
  • S.73’s purpose is not frustrated if a power to restrict freedom is not implied;
  • Clear that Parliament didn’t intend for s.73 to restrict freedom because:
    • MHA provides for detention in “a place of safety” or “in hospital” – in both circumstances, it includes specific powers to convey, detain and retake following absconsion – there are no equivalent powers for patients who are conditionally discharged under s.73;
    • Conditionally discharged patients do not have the right to review by a Tribunal at the same regularity as a patient in hospital – so it must not have been thought that those patients required the same degree of protection for a deprivation of liberty;
  • Practicably, a compliant patient could withdraw consent at any time – and s.73 doesn’t provide coercive powers to require his/her compliance;
    • Comment: This practical consideration would also arguably apply to any and all conditions under s.73 – including, for example, compliance with treatment; it is difficult to distinguish why it is felt that Parliament could have intended to allow a condition requiring compliance with treatment (which cannot be enforced) but not a condition restricting freedom.
    • Comment: as with any CD, the ultimate recourse is the ability to recall to hospital; which presumably could be applied if a patient withdrew consent to restriction of freedom in the same way as if the patient became incompliant with medication.

Subjective Element of an Article 5 DoL

Comment: The Supreme Court’s judgements appear to be inconsistent with the case law on Article 5, which states that for there to be a DoL requiring regularisation, the three following elements must be present:

  1. Objective element – the circumstances objectively amount to a DoL;
  2. Subjective element – there is a lack of valid consent to the DoL; and
  3. State involvement.

Arguably, capacitated patients could provide valid consent (i.e. rendering the subjective element of a DoL for Article 5 purposes unmet) – meaning that there is no DoL for the purposes of Article 5 requiring regularisation.

There is an argument that a capacitated patient cannot provide valid consent – on the basis that, essentially, the patient is "coerced" or "unduly influenced" into giving consent to achieve discharge from hospital. Whilst this was raised, it doesn’t appear to have been the reason behind the Supreme Court’s decisions. Further, you could argue that the inability to provide "valid" consent would be the case with consent to any conditions on a CD (including those that don't amount to Article 5 interferences but potentially Article 8 interferences) and indeed, any consent to any CTO conditions; but these conditions aren’t ordinarily considered unlawful.

Discrimination/Inequality

Comment: Is a capacitated person unfairly disadvantaged to remain in hospital longer than an incapacitated person because they cannot have a CTO / CD in circumstances amounting to an objective DoL in the community, whereas an incapacitated person can with a CoP Order/DoLS SA?

This is potentially an area that could be considered by the ECtHR – although, arguably, the discrimination is less if a capacitated patient is able to achieve the same practical outcome using s.17(3) / Inherent Jurisdiction.

Inherent Jurisdiction - First Instance Case

  • Inherent Jurisdiction can be used where there is a “legislative void”;
  • Order from the Court under the Inherent Jurisdiction provided the procedure prescribed by law to authorise AB’s Art 5 DoL – 12 month period with renewal on the papers;
  • In format, very similar to the kind of Order made following a CoPDoL11 Application.

Potential Difficulties with MoJ Guidance

Comment:

  • It is unclear why the Inherent Jurisdiction shouldn't be used. The case of AB remains good law until overturned (albeit a first instance decision).
  • Using S.17(3):
    • Is “remaining in custody” an express power to restrict freedom?
    • Was s.17(3) designed to be a procedure prescribed by law to authorise an Art 5 DoL?
    • For unrestricted patients:
      • Ss.17(2A)-(2B) – what is the justification for use of longer-term leave over CTO?
      • S.20(4) - renewal of detention whilst on long-term leave requires a “significant component of the patient’s care plan is treatment at hospital” – (KL v Somerset Partnership NHS Foundation Trust [2011]) – will this be achievable?
    • For restricted patients:
      • Responsible Clinician’s ability to recall to hospital expires after a year;
      • More frequent right to apply for a Tribunal than a CD patient;
      • Risk is that a Tribunal considers that the criteria for mandatory CD are met – which is, arguably more likely where a patient has been on long-term leave, and therefore a CD is required; which means that the difficult problem of CDs and a DoL may only be delayed for a year;
    • For patients already in the community under CD:
      • caselaw indicates that it is unlawful to grant s.17 leave when admitted to hospital/detained only for a purely “nominal” period where no necessary treatment provided (Hallstrom 1986) – how does this sit with the proposal for the patient to not be physically recalled and admitted to hospital? There is no proposal in the Guidance for the patient to receive any treatment in hospital prior to being placed on s.17 leave.
      • would the recall under s.42(3) (which would be necessary to put on s.17 leave) be vulnerable to challenge by way of judicial review as being a “technicality?”
      • it is unclear where the statutory authority is for a “notional/technical” recall – i.e. where the patient is not physically recalled and admitted to hospital?
Background

PJ

PJ is a 47 year old man who had a diagnosis of mild learning disability, which can be described as a significant impairment of his behaviour. PJ was detained in hospital between 1999 and 2007 following a conviction for actual bodily harm and threats to kill. In 2009 PJ was further detained under s.3 MHA.

PJ was made the subject of a CTO and was discharged from hospital into a residential care home for men with learning disabilities and challenging behaviours. The conditions of the CTO were as follows:

a) PJ was to reside at a care home and adhere to the rules of residence at the home.

b) Whereabouts monitored at all times and 15 minute observations;

c) Escorted for all community outings – including seeing his girlfriend;

d) Absconding protocol allowed restraint.

The rationale behind these conditions, as provided by PJ's responsible clinician, was for PJ's own safety and the protection of the public – abnormally aggressive and seriously irresponsible behaviour consisting of violent and sexual offending.

PJ had capacity.

PJ argued that the conditions for the CTO were unlawful and therefore he should be discharged from his CTO.

Judgement history:

  • FTT – upheld the CTO, finding that the conditions did not amount to a DoL, and in any event, if they did, the CTO framework overruled the human rights issues;
  • UTT – upheld PJ’s appeal, but found that his actual CTO conditions did not amount to an objective DoL and didn’t remit to the FTT because by that time, PJ had already been discharged from his CTO;
  • CoA – agreed that PJ's conditions on his CTO didn’t in fact amount to an objective DoL – but if they had, the CTO was statutory authority to remove him of his fundamental right to freedom. As long as the circumstances arising under the CTO were less restrictive than the hospital environment.

In the Supreme Court the Welsh Ministers argued that:

  • because there is no statutory power to enforce the conditions of a CTO (i.e. toothless tigers), even if they were objectively a DoL, they were not an Article 5 DoL requiring authorisation:
    • Rejected: this would mean that unlawful DoL would go unremedied – antithesis of the protection enshrined in Art 5;
  • “acid test” for Objective Element of an Art 5 DoL should be “modified” where the object is to enhance rather than curtail the patient’s freedom:
    • Rejected: “purpose” is irrelevant to the determination of an Art 5 DoL.

MM

MM is a 35yr old man with a diagnosis of mild learning disability and autistic spectrum disorder. He was convicted of arson in 2001 (when aged 17); the criminal court described his behaviours as "pathological fire starting", and imposed a hospital order upon him under s.37 MHA and a restriction order under s.41 MHA.

He was briefly conditionally discharged between December 2006 – April 2007; but apart from that, has remained in hospital ever since. Considered to be a serious risk of fire setting and behaving in a sexually inappropriate way towards women.

MM had agreed to a conditional discharge to a community placement, the circumstances of which would have amounted to an objective deprivation of his liberty – living in a specified place, where he was not free to leave and community access would be with supervision/escort.

Judgement history:

  • FTT – could not impose a condition which would amount to an objective DoL and any consent from the patient would not be genuine, properly considered or reliable (as the only alternative was to remain in hospital);
  • UTT – could impose a condition amounting to an objective DoL as long as patient could and did consent to it;
  • CoA – no power to impose conditions objectively amounting to a DoL even if the patient could and did consent.

The CoA considered whether the Upper Tier Tribunal was right to conclude that the First Tier Tribunal could make it a condition of discharge that he is to comply with a care plan which would objectively deprive him of his liberty. The reasons given were relatively straightforward: liberty is a fundamental right which cannot be overridden without clear and unambiguous words in a statute to that effect.

It is understood that MM intends to appeal to the ECtHR.

AB

28 year old man under s.37/41 following conviction in 2009 for 2 counts of rape and 1 count of sexual assault of a child (his half-brother who was aged 5 at the time) in 2006 (when AB was aged 16) with a mild learning disability.

In June 2016 AB was conditionally discharged by FTT with a condition to comply with his care plan and risk assessment – this involved 24 hour supervision and the wearing of an electronic tag.

Was agreed by all that objectively the conditions of the conditional discharge amounted to a DoL.

AB had capacity and consented to the conditions – he had been compliant with them since his discharge from hospital; but it was recognised that he still posed sufficient risk that the conditions could not be relaxed so as not to amount to an objective DoL.

Cross References

Please see the following links for further information:

 

This case summary was written by Hannah Taylor, Partner.

Please contact Hannah Taylor if you wish to discuss this case or any related topics further. 

 

Bevan Brittan's Clinical Risk Team have prepared a comprehensive Knowledge Pack which offers guidance to commissioners, providers and care co-ordinators on the use of CCTV. The Pack is aimed at care environments with service users who lack capacity to consent to their care regime.

Please contact Hannah Taylor if you would like to receive the Knowledge Pack or wish to discuss the Use of CCTV in Care Packages any further.