Judge: Lieven J
Citation:  EWCOP 28
Two local authorities made streamlined Re X applications on COPDOL11 forms to authorise the deprivation of liberty of two individuals who were either about to be (SR), or had been (JTA), conditionally discharged from ss37/41 of the Mental Health Act 1983. SR had mild learning disabilities and autism and would require 1:1 supervision in the community to prevent him consuming alcohol and to prevent risk of re-offending. SR wished to live in the proposed supported living placement and was happy with the proposed care arrangements. JTA had a learning disability, communication difficulties and bipolar disorder. In 2016 the tribunal had conditionally discharged him on conditions that included one of residence and that he “shall not be permitted to leave his accommodation unless accompanied and supervised at all times”.
There was no dispute that both individuals lacked capacity to consent to their care arrangements which gave rise to a deprivation of liberty. The fundamental issue was, in light of the Supreme Court’s decision in MM v Secretary of State for Justice  UKSC 60, it was lawful to authorise a deprivation of liberty under the Mental Capacity Act 2005. In M, the individual had the relevant capacity and it was held that the conditions of a conditional discharge cannot deprive liberty because the MHA does not permit it. But did the MCA permit it? This was left open by Lady Hale:
Government guidance was produced in light of the MM decision which distinguished between (a) those whose best interests require a care plan depriving liberty to help them perform daily living activities or self-care, and (b) those who deprivation of liberty is primarily to protect the public. It suggested using the MCA to authorise the former and MHA s.17(3) escorted leave for the latter.
Lieven J held that both SR and JTA would fall into case B of the eligibility categories because, at the time the COP order comes into effect, they would be subject to a hospital treatment regime but not detained under it. Thus, they were eligible to be deprived of liberty under the MCA so long as this was not contrary to a MHA requirement. Her Ladyship concluded that it was in the best interests of both individuals to be deprived of liberty in their respective placements. As to protecting the public:
Accordingly, Lieven J authorised the deprivations of liberty.
Parliament clearly planned for the scenario whereby a conditionally discharged patient lacking the relevant capacity could be deprived of liberty under the MCA 2005. So long as there is no compatibility (eg as to residence), such a two-pronged approach is in our view lawful. It is not entirely clear from the judgment but, in light of M, it would be unlawful for the MHA conditions in JTA’s case to deprive liberty. Whether any watering down of the condition regarding constant community supervision was envisaged is unclear, the judgment merely observing, “There is no inconsistency between the two orders, it is merely that under the MHA, as interpreted in M, there is no power to deprive the patient of his/her liberty. That does not prevent the MCA powers being used” (para 46).
The approach of Lieven J also accords with that of Hayden J in an unreported CTO case determined on 5 July 2019. The Vice-President took the view that there was no jurisdictional bar to the Court of Protection authorising P’s deprivation of liberty, so long as the CTO conditions did not give rise to confinement. Hayden J has given permission for the relevant recital to the order to be published, and it is reproduced below:
AND UPON the Court being satisfied that neither the decision in Secretary of State for Justice v MM  UKSC 60, nor that in Welsh Ministers v PJ  UKSC 66, prevents the Court of Protection making an order under s.16(2)(a) Mental Capacity Act 2005 authorising (by s.4A(3)) the deprivation of liberty in the community of an individual lacking the material decision-making capacity who is subject to a Community Treatment Order, so long as that Community Treatment Order does not contain conditions that on their face give rise to the confinement of the individual.
The SR/JTA decision will enable incapacitated restricted patients to be lawfully discharged from MHA hospital detention and deprived of liberty under the MCA in the community which is a welcome development. We anticipate, however, that increasing attention will be paid to the claim that it is in SR’s best interests not to commit further offences. After all, the MCA is not a policing statute. It is designed to protect P from harm. However, the consequences of Cheshire West are testing the boundaries of MCA ss5-6 as practitioners cry out for Article 5 procedures to authorise the expansive notion of deprivation of liberty.
Strictly speaking, para 41 is obiter because para 42 confirms that the best interests of both SR and JTA required a care plan depriving liberty to help them perform daily living activities or self-care. Other cases may not be so clear cut on the facts. But it is worth bearing in mind that, as the MHA Code states at para 14.10, “it is not always possible to differentiate risk of harm to the patient from the risk of harm to others”. For no person is an island.