Judge: Baker J
Citation:  EWHC 272 (Fam)
Summary: L was a former Winterbourne View patient. She was 33 years old and suffered from a mild learning disability and emotionally unstable personality disorder. On 25 May 2012, a tribunal had ordered her discharge from detention under s.3 of the Mental Health Act 1983 (‘MHA’) to take effect on 28 September 2012. It held that she needed a residential establishment in the community rather than the medium-secure unit. Identifying a suitable community placement was underway and, as a preliminary step, L was moved to a hospital closer to home (‘WH’) in early September 2012.
At around the same time, doctors from medium-secure unit provided two medical recommendations that she be re-detained under MHA s.3. However, with no material change in circumstances since the tribunal’s decision in May, the Approved Mental Health Professional (‘AMHP’) concluded that such re-detention would be unlawful, following R v East London NHS Trust, ex part Count Von Brandenburg  2 AC 280, and declined to make the s.3 application. As a result, the deferred discharge took effect on 28 September 2012. But L remained in WH; now on an informal basis.
During her assessment, the AMHP identified that the restrictions in L’s care plan seemed to constitute a deprivation of liberty and advised the Primary Care Trust (‘PCT’) and the hospital trust that an authorisation should be sought through a court order. On 12 October 2012 an urgent authorisation under Schedule A1 of the Mental Capacity Act 2005 (‘MCA’) was granted, and a request for a standard authorisation was made. The best interests assessor concluded that there was indeed a deprivation of liberty but L was ineligible to be deprived of her liberty because she was within the scope of the MHA. On 23 October 2012, the PCT therefore made an urgent application to the Court of Protection.
At this stage of the proceedings, Baker J. was called upon to consider (1) whether L’s circumstances amounted to a deprivation of liberty; and (2) the relevant information when assessing her capacity to consent to the deprivation of liberty at WH.
(1) Deprivation of liberty?
With the conjoined appeals in Cheshire West and P and Q being heard by the Supreme Court this Autumn, and having considered the current state of the law in depth in CC v KK  EWHC 2136 (COP) at -, his Lordship provided the following brief summary, which we set out in full to assist practitioners:
“13. When determining whether there is a ‘deprivation of liberty’ within the meaning of Article 5, three conditions must be satisfied, (a) an objective element of a person’s confinement in a certain limited space for a not negligible time; (b) a subjective element, namely that the person has not validly consented to the confinement in question, and (c) the deprivation of liberty must be one for which the State is responsible: see Storck v Germany, supra.
14. When determining whether the circumstances amount objectively to a deprivation of liberty, as opposed to a mere restriction of liberty, the court looks first at the concrete situation in which the individual finds herself, taking account of a whole range of criteria, including the type, duration, effects and manner of implementation of the measure in question, bearing in mind that the difference between deprivation, and restriction upon liberty is merely one of degree or intensity and not one of nature or substance. As Munby LJ observed in Cheshire West, supra, at paragraphs 34-35 and 102, ‘account must be taken of the individual’s whole situation…the context is crucial’.
15. At a more practical level, guidance as to the objective element is given in the Deprivation of Liberty Safeguards Code of Practice 2008. Chapter 2 of the Code is entitled: “What is a deprivation of liberty?” At paragraph 2.5, there is what is described as a ‘non-exhaustive’ list of factors pointing towards there being a deprivation of liberty, namely where:
(1) restraint is used, including sedation to admit a person to an institution where that person is resisting admission;
(2) staff exercise complete and effective control over the care and movement of a person for significant periods;
(3) staff exercise control over assessments, treatments, contacts and residence;
(4) a decision has been taken by the institution that the person would not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate;
(5) a request by carers for a person to be discharged to their care is refused;
(6) the person is unable to maintain social contacts because risk of restrictions placed on their access to other people;
(7) the person loses autonomy because they are under continuous supervision and control.
16. The court must also have regard to the following factors identified in the recent case law:
(1) whether the person objects to their confinement: see paragraph 25 of the judgment of Wilson LJ (as he then was) in P and Q v Surrey County Council (supra);
(2) the relative normality of the person’s life: see paragraph 28 of the judgment of Wilson LJ in P and Q (supra);
(3) the relevant comparator, having regard to the particular capabilities of the person concerned: see paragraphs 38, 39 and 102 (viii) to (xii) of the judgment of Munby LJ (as he then was) in the Cheshire West case, (supra);
(4) as part of the overall assessment, the purpose for the placement: see judgment of Munby LJ at paragraphs 60 – 77 and 102 (vi) and (vii) in the Cheshire West case, as qualified for the reasons set out in CC v KK, supra, at paragraphs 94-96;
(5) the extent to which it can be said that the managers of the establishment, in this case WH, exercise complete and effective control over the person in his treatment, care, residence and movement: see the judgments of the European Court in DD v Lithuania (supra), at paragraph 146 and Kedzior v Poland, (supra) at paragraph 57.”
On the particular facts, L was subject to the following restrictions:
(1) WH is locked to visitors and its patients;
(2) L must seek the permission of nursing staff if she wishes to leave;
(3) in the community, L is supervised 1:1;
(4) staff would prevent her leaving WH and entering the community if she is assessed to be at risk;
(5) should L seek to leave WH, staff would seek to dissuade her from doing so using de-escalation techniques;
(6) if she were to abscond from WH or staff, the police would be alerted;
(7) there are restrictions of movement within the unit;
(8) the level of observations of L are variable, ranging from level 3 (every 15 minutes) to level 2 (line of sight) to level 1 (i.e. 1:1 close). And observations are increased or decreased according to the assessed level of risk;
(9) restraint is used where there is an assessed and immediate risk to herself or others;
(10) staff may seek to remove L from the area to de-escalate the situation;
(11) personal property may be searched when staff assess there to be a clear indicator or risk (e.g. ligatures, hoarding of medication, instruments for use to self-harm);
(12) personal searches may also be conducted according to indicators of risk;
(13) if required, sedative medication may be administered, if necessary intramuscular injection;
(14) L’s contact with her mother is to be supervised by staff in the community according to assessed need or risk;
(15) no contact is permitted with her mother in the hospital.
Baker J. rejected the seemingly tentative submission that the restrictions would need to be the same wherever L was placed and therefore, applying the tests of relative normality and the relevant comparator, there was no deprivation. Rather, his Lordship held that L was deprived of her liberty and that it was not necessary for every factor in paragraph 2.5 of the DOLS Code of Practice to be present before Article 5 was engaged:
“25. The plain fact is that in this case the care and movement of L is subject to the complete and effective control of the staff at WH. That control extends to treatment, contacts and residence. The treatment includes medication. It has been decided that she will not be released into the care of others or to live elsewhere, unless staff consider it appropriate. Her social contacts are subject to a degree of control.
26. I accept Mr. Ruck Keene’s submission that the appropriate comparator is a person properly placed in a residential placement in the community, and that WH does not amount to such a placement. In any event, the concept of relative normality and relevant comparator were not intended by the Court of Appeal to be used to exclude cases such as this from the safeguards introduced into the MCA 2005 as a result of the decision in HL v United Kingdom. In Cheshire West, Munby LJ makes it crystal clear by his reference to the decision in HL v United Kingdom that such circumstances will continue to be seen as amounting to deprivation of liberty.
27. The restrictions included in the care plan, as summarised by Ms Goodall in the analysis set out above, are on any view at the more severe end of the spectrum. To my mind, this is, objectively, a plain case of deprivation of liberty.”
(2) Mental Capacity
Turning to the subjective element of the Article 5 equation, had L validly consented to the confinement in question? His Lordship had to first identify the decision in respect of which L’s capacity would be assessed:
“29. … Although the court is not, strictly speaking, bound by the provisions of Schedule A1 when deciding whether or not to make an order depriving a person of their liberty, I accept the submission made on behalf of the Official Solicitor by Mr Ruck Keene that the appropriate course in these circumstances is for the court to approach the question as if it was considering the “mental capacity requirement” under paragraph 15.”
The crux of the issue, therefore, was this: what were the salient details relevant to deciding whether to be accommodated in a hospital for the purpose of being given relevant care or treatment? Noting the complexity of the capacity evaluation process, his Lordship considered it undesirable for the Court to identify in advance as a matter of routine the precise information necessary for making such a decision. This would lead “to an alarming amount of satellite litigation at great and unnecessary cost”. The better course was “for the clinician to consider the concrete situation and assess the level of the person’s understanding about that situation”. The Court would then consider whether practicable steps had been taken to help the person decide whether or not to give consent and whether, on a balance of probabilities, the person lacks capacity (para 37).
Turning to the particular facts, and expressly stating “I am not seeking to set any sort of precedent, either as to the process to be followed or as to the type of information which is likely to be relevant in such cases” (para 38), his Lordship identified the following salient details as being relevant to L’s decision:
(1) that she is in hospital to receive care and treatment for a mental disorder;
(2) that the care and treatment will include varying levels of supervision (including supervision in the community), use of physical restraint and the prescription and administration of medication to control her mood;
(3) that staff at the hospital will be entitled to carry out property and personal searches;
(4) that she must seek permission of the nursing staff to leave the hospital, and, until the staff at the hospital decide otherwise, will only be allowed to leave under supervision;
(5) that if she left the hospital without permission and without supervision, the staff would take steps to find and return her, including contacting the police.
Finally, the Court added:
“40. Whilst I accept Mr. Mant’s submission that the specific consent under consideration is to the ‘deprivation of liberty’ and not to the care or treatment as such, it seems to me that the information which must be understood, retained, used and weighed extends to some information about the context in which the deprivation is being imposed.”
Comment: Most of us will no doubt breathe a sigh of relief that such an intensive set of restrictive measures in a psychiatric setting designed for compulsory detention amounted to a deprivation of liberty. Indeed, the concrete situation appears to be more restrictive than the Bournewood case. Pending the Supreme Court’s decision in the conjoined appeals, listed for 22-24 October 2013, Baker J. has very helpfully delivered two summaries of the current law: a comprehensive version at paragraphs 76-96 of CC v KK, and a bite-size version in paragraphs 13-16 of LDV.
Since the Court of Appeal’s decisions in P and Q and Cheshire West there has been much discussion surrounding the weight to be accorded to the concept of relative normality and the benchmarking comparator. Are they trump cards? That is, “these circumstances are relatively normal for someone like X and therefore there is no deprivation of liberty”. Or are the merely factors to take into account, along with all of the other circumstances? Paragraph 16 of this judgment identifies them as two “factors” amongst many.
This judgment shied away from identifying, in generic terms, the information relevant to deciding on an informal hospital admission, whether in liberty-depriving circumstances or otherwise. The fear that this might generate an alarming amount of satellite litigation is of course entirely understandable. Similarly alarming, perhaps, is the general lack of precedent or guidance relating to the salient details of an informal admission. The 1993 Code of Practice to the Mental Health Act 1983 essentially described an informal patient as “one who has understood and accepted the offer of a bed, and who has freely appeared on the ward and who has co-operated in the admission procedure”: see R. Brown, ‘The Revised Code of Practice to the Mental Health Act 1983: Some Initial Thoughts’ (1999) Journal of Mental Health Law 48, at 51. However, this has been removed from the Code, with nothing meaningful in its place.
Finally, eligibility anoraks will have spotted that this case raises a “fascinating” interface issue. In particular, given the tribunal’s discharge decision and von Brandenburg, “could” an application have been made under MHA ss 2 or 3 and “could” L have been detained in pursuance of such an application, were one made?: MCA Schedule 1A para 12. Clearly the DOLS eligibility assessor thought so and, by virtue of MCA s.16A, “If a person is ineligible to be deprived of liberty by this Act, the court may not include a welfare order provision which authorises the person to be deprived of his liberty”. It appears, however, that the application “could not” have been made because there was no information not previously known to the tribunal which put a significantly different complexion on the case. To re-detain under MHA s.3 would therefore have been unlawful by virtue of the von Brandenburg ruling.
If it therefore follows that L was in fact eligible for DOLS (or a MCA s.16 court order), should we be concerned? Such a line of reasoning would lead to a somewhat bizarre result (to put it mildly). For it would mean that a person “discharged” from detention under the MHA could continue to be detained in hospital under the MCA – even for psychiatric treatment – if there were no material change in circumstances. We will eagerly await, “LDV the sequel”.