Judge: HHJ Isabel Parry (sitting as a judge nominated under s.9(1) Senior Courts Act 1981)
Citation:  EWCOP 31
If there ever had been reason to doubt that Schedule 1A to the MCA 2005 is irredeemably flawed, this case is it. The facts of the case are tragic, the outcome – substantively – is entirely correct, but the hoops through which it was necessary for the parties to go were ludicrous.
AB, a 34 year old woman, had a serious and life threatening cardiac condition, the recommended treatment for which was surgery. She was detained under s.3 MHA 1983 at a low secure private hospital, her diagnoses including mild/borderline learning disability, a working diagnosis of autism, and a schizophrenic illness with prominent persecutory thinking. In consequence, she lacked the capacity to make decisions as to her medical treatment (and to conduct proceedings in relation to her medical treatment).
The local health board made an application to the Court of Protection for declarations and decisions in relation to AB’s capacity and best interests as regards heart surgery, as well as (prior) dental surgery to remove her lower teeth. The intention was that AB would be granted leave under s.17 MHA 1983 by her Responsible Clinician to attend at the general hospital for purposes of undergoing both treatments.
The assessment by the court of the evidence before it as to AB’s capacity and best interests was scrupulous, as were the attempts made to engage AB in the process (attempts which ultimately did not involve her speaking to the judge because AB’s anxiety at the number of professionals who had been to see her led her to decline to see anyone further, even if that was the judge who was to make the decision). It is particularly noteworthy that the judge made entirely clear:
“64. The fact that AB suffers with serious psychological difficulties and has been subject to in-patient treatment compulsorily under the MHA so that it may be considered by some that she does not have an equivalent quality of life to a person with capacity and without her difficulties should be excluded from the court’s consideration. Otherwise a person in need of a protective decision would be at risk of being treated less favourably than any other person.”
HHJ Parry recognised that “imposing two unwanted surgical procedures on AB, one of which is serious and accompanied by risks in itself undermines her personal autonomy over her own body and is therefore a very serious step and only to be taken where it is necessary in her own interests. This is not a case in which the proposed course of medical treatment is merely desirable or would make AB’s day to day life easier. She is at risk of dying if she does not undergo this particular cardiac surgery and the necessary pre – operation dental extractions.” However, taking all the evidence into account, including the steps that could be taken to reduce and manage identified risk factors, HHJ Parry concluded that it was in AB’s best interests to undergo both medical procedures.
Were it not for the discussion as to deprivation of liberty, we would have noted this case in passing as a Short Note, emphasising the passage at paragraph 64 set out above. However, the judge was required to grapple with the implications of the fact that AB was detained under the Mental Health Act 1983, and her conclusions there are (a) of sufficiently wide ramifications; and (b) (to us) sufficiently concerning, that they require further analysis.
HHJ Parry concluded, on the basis of an agreed statement of the law, that:
The substantive outcome of this case is clearly correct, and it represents a textbook analysis of both capacity and best interests in a difficult clinical dilemma. The case is also important because it represents the first discussion (at least in a reported case) of the Strasbourg court’s identification in Munjaz of the concept of residual liberty – i.e. the fact that a person is lawfully deprived of their liberty under one statutory regime does not mean that consideration must not be given to whether they are subject to an additional deprivation of their liberty requiring justification. Curiously, whilst this was, in fact, in issue in Dr A’s case, it appears that the case was not cited to Baker J. We must, however, with due respect to those involved, register a considerable note of caution as to the correctness of the legal analysis adopted to reach the conclusion that AB would be ineligible to be deprived of her liberty at the general hospital. If the analysis is correct, it means that where a responsible clinician grants s.17 leave from a psychiatric to a general hospital with conditions that amount to a deprivation of residual liberty, the MCA cannot be used to authorise it because P will be ineligible. Either the conditions must be relaxed so as to avoid the acid test being satisfied or if, as is very likely, this is not possible, an application to the High Court under the inherent jurisdiction will be required (or, possibly, s.17(3) MHA 1983 should be invoked). The conventional approach, and that reflected in the Code of Practice to the DOLS safeguards, has always been understood to be the following:
We should note, finally, that s.17(3) MHA 1983 (which was not discussed by HHJ Parry) enables patients to be kept in the custody of staff or person authorised by the hospital managers, including the staff of another hospital. We do not understand it routinely to be used in the ‘transfer treatment’ cases of the kind considered in AB, its function (as identified by Richard Jones) being primarily to confirm that immediate powers of restraint can be used in the event of an attempt to abscond by a high risk patient (see also s.137(1) and (2) MHA 1983). Precisely how it is intended to fit into the operation of Schedule 1A is not clear. We note that the definition of ‘hospital treatment regime’ in Schedule 1A is exhaustive and does not include s.17, such that even if the individual is deprived of their liberty pursuant to the operation of s.17(3) MHA 1983, they are not ‘detained in a hospital under [the hospital treatment] regime’ (emphasis added). It would therefore appear that, even if s.17(3) MHA 1983 is invoked, it would not give rise to a Case A situation, but a situation where either (1) there is no need to invoke the MCA at all because it provides the necessary authority for the additional deprivation of liberty attendant upon the arrangements made for the treatment for the physical disorder (which does not appear to have been in the contemplation of DH when drawing up either Code of Practice, and which we would doubt); or (2) a Case B situation, requiring authorisation to be sought under the MCA.
Whilst the issues relating to the operation of s.17 leave set out above were not addressed in terms in NHS Trust v FG  EWCOP 30, we would note that Keehan J appears (rightly) to have been entirely content to exercise the jurisdiction of the Court of Protection so as to provide for the lawful deprivation of liberty of a woman detained under s.3 MHA 1983 who was to be granted leave under s.17 MHA 1983 to a general hospital for purposes of undergoing a Caesarian section. Indeed, the tenor of the guidance given by Keehan J was to the effect that, where an application to the Court of Protection was not required (because the procedure would not amount to serious medical treatment), the key consideration was that there was proper coordination between the two hospitals so as to ensure that any necessary standard authorisation was in place prior to the woman being transferred to the maternity unit at the general hospital (see paragraph 101).
We hesitate to raise the difficulties outlined above because, on one view, they could be characterised as lawyerly dancing on the heads of a pin. However, if AB is correct, then this suggests that very many more applications in relation to psychiatric patients requiring procedures for physical disorders will be required to the High Court (not the Court of Protection) in cases where the sole reason for so doing is to obtain authority for deprivation of liberty.
Given that – albeit in stellarly badly drafted form – Parliament has provided a mechanism for the MHA and the MCA to operate in parallel without recourse to the courts, we look with interest to whether this issue is revisited in due course.
 There is a glancing reference in the relief sought by the Trust (at paragraph 17) to the inherent jurisdiction as an alternative basis for authority for the deprivation of FG’s liberty, but Keehan J approached matters squarely on the basis that he was exercising his jurisdiction as a Court of Protection judge to make the substantive declarations and decisions: see paragraph 33. Applying the logic of Dr A’s case and AB’s case, he would not have been entitled to do so if he considered that FG was ineligible to be deprived of her liberty under the MCA 2005.