Judge: Baker J.
Citation:  EWHC 1916
Summary: In this case, Baker J was concerned with a thirty-one year old Bangladeshi woman known as BB. She was said to have very complex needs, being profoundly deaf and with a diagnosis of schizoaffective disorder and probable learning difficulties. It was accepted by all parties to these proceedings that for material purposes BB lacked the capacity to decide where she should live.
On 19 April 2010, BB was removed from the family home by support workers employed by Tower Hamlets Community Mental Health Team following reports that BB had been assaulted by her parents. She was admitted to the Roman Ward at Mile End Hospital which is managed by the East London NHS Trust. On 29 April, the Official Solicitor filed an application in respect of BB in the Court of Protection. On 6 May, NHS Tower Hamlets (formerly Tower Hamlets PCT) authorised BB’s deprivation of liberty under a standard authorisation under the Mental Capacity Act 2005. On 28 May, BB was transferred to the Old Church Hospital in Balham, managed by the South West London and St George’s Mental Health NHS Trust. On 7 June, BB’s, deprivation of liberty was authorised by that Trust under an urgent authorisation under the 2005 Act.
Following a sequence of events that are not relevant here, on 5 July, the Official Solicitor wrote to the other parties indicating that it appeared that there was no longer any lawful authorisation for BB’s deprivation of liberty and that in the circumstances it would be necessary to restore the matter to court pursuant to the President’s order. The matter came before Baker J on 7 July. At that hearing, a number of matters were resolved by consent, including residence and contact. Baker J was, however, asked to make a declaration that BB was currently being deprived of her liberty at Old Church. As he identified (paragraph 6), that was a necessary preliminary step because, if a person is ineligible to be deprived of liberty, a court may not include in a welfare order any provision which authorises that deprivation of liberty. Plainly this issue only arises if the circumstances in which the person is being accommodated amount to a deprivation of liberty.
Baker J held (at paragraph 12) that the statutory provisions contained in the MCA 2005 do not appear on their face appear to extend to making declarations as to whether or not circumstances amount to a deprivation of liberty. He concluded that it might be that the court’s power to make such a declaration arose under its inherent jurisdiction, and noted both that no party sought to persuade me in this case that he had no power and clearly it was necessary to make a decision on the question whether circumstances amount to a deprivation of liberty and to recite that decision in the order seemed eminently sensible.
Baker J summarised the statutory provisions contained in the MCA, and in particular those in Schedule 1A relating to eligibility to be deprived of one’s liberty, endorsing in the process the approach taken by Charles J in GJ v Foundation Trust  EWHC 2972 (Fam). Having done so, he drew the points together as raising the following questions (paragraph 25):
“(1) Are the criteria in sections 2 or 3 of the Mental Health Act met in BB’s case and if so would the hospital admit her under the Mental Health Act if an application was made? In other words, is she suffering from a mental disorder warranting assessment or medical treatment? If yes, BB is ineligible to be deprived of her liberty. If not,
(2) Do the circumstances of her detention considered together amount to a deprivation of liberty having regard to the guidance set out in the DOLS Code of Practice?”
On the facts of the case, Baker J that the medical evidence was that BB was not “detainable under the Mental Health Act because she is happy to stay in hospital and take medication. She has made no attempts to leave. She reports being happy. She changes the subject when asked about her home and family but she does so without showing any negative emotion or particular interest… if she said she wished to be discharged or to return home, we would assess her mental state and assess for detention under the Mental Health Act. It might be she would be easily persuaded to stay; it might be she would be detainable”. In the circumstances, he found (paragraph 27) that she was not ineligible to be deprived of her liberty within the meaning of the eligibility requirement in Schedule 1A of the Mental Capacity Act, and as a result the Court was not prevented from including in a welfare order provision which authorises deprivation of her liberty.
Baker J then concluded as follows on the question of whether BB was deprived of her liberty:
“30. In considering the submissions, I have, as recommended in the guidance in the DOLS Code of Practice, had regard to the rapidly expanding case law in this field, including not hospital staff. Taking these factors altogether, the cumulative effect in my judgment is that BB is currently being deprived of her liberty and I so declare.”
Comment: This case is of some importance both for its confirmation of the approach taken by Charles J to the interaction of the MHA and the MCA in GJ, and also for the clarification regarding the approach to be taken to assessments of the deprivation of liberty. The comments made by Baker J as to the need for consistency of approach is welcome although does, again, raise the stark issue of the difficulty of dissemination of judgments. Somewhat more troubling, perhaps, is the indication that the courts will take a robust approach to determinations of deprivation of liberty questions on an interim basis. Whilst limited judicial resources available (adverted to by the Court of Appeal in G v E  EWCA Civ 822, discussed in our previous update) mean that this is a reality, in many cases, an interim conclusion as to whether or not a situation constitutes a deprivation of liberty is likely to hold sway for many months, with significant consequences in terms of the obligations upon the relevant local authority/PCT to review the position.