Secretary of State for Justice v KC and C Partnership NHS Foundation Trust

Judge: Charles J

Citation: [2015] UKUT 0376 (AAC)

Summary

Ever since the decision in SSJ v RB [2011] EWCA Civ 1608 it has been difficult to discharge restricted patients from detention under the Mental Health Act 1983. Often they require robust conditions in the community that amount to a deprivation of liberty. And the Court of Appeal decided that it was unlawful for a tribunal to discharge from MHA detention into what effectively amounted to community detention because that was not a “discharge” from detention. Many have long questioned the validity of that decision. This comprehensive judgment addresses a large number of issues, not all of which are relevant to MCA practitioners. Our focus, therefore, will be on the interface between the MHA and the MCA.

KC was a restricted patient and lacked capacity to make decisions in relation to residence and care regime. The tribunal made a provisional decision to discharge him from hospital on the following conditions:

1. He will reside at the placement and will not leave the premises unless accompanied and supervised at all times by an appropriate member of staff.
2. He will comply with all aspects of the care package which is devised for him by the NF organisation, and accept supervision and support from their staff.
3. He will accept psychiatric and social supervision from his community responsible clinician.
4. He will refrain from taking any alcohol and submit to any routine testing which may be required of him.

All agreed that this amounted to a deprivation of liberty. The placement was not a care home or hospital and so would require the authorisation of the Court of Protection. The main issue was whether it was lawful for a first-tier tribunal (‘FTT’) to discharge KC in such circumstances.

MHA protective conditions: MCA/DoLS/MHA interface

Having analysed the legislation, Charles J set out an important aspect of the interface insofar as the relationship between the various statutory decision makers was concerned:

“62. In my view the points made in the last two paragraphs confirm that:

• the Court of Protection and the DOLS decision makers are ill equipped to make and should not make decisions on the arrangements and thus the protective conditions required to provide appropriate protection to the public and the patient as and when the patient moves from hospital into the community,

• the statutory responsibility for making the decision on what the protective conditions should be is placed on the MHA decision maker (and so the Secretary of State or the FTT), and so

• the decision under the MHA on what the protective conditions should be limits the choices available to the Court of Protection or the DOLS decision makers, with the result that

• the Court of Protection and the DOLS decision makers have to determine whether a regime of care, supervision and control that includes the protective conditions is in the patient’s best interests and in doing so they cannot choose a regime that does not include the protective and other conditions decided on by the MHA decision maker (see paragraph 36 hereof).

62. An alternative route to the same result is that it would be a waste of time and money for the Court of Protection and the DOLS decision makers to consider the care arrangements for a conditionally discharged restricted patient without knowing what the protective conditions decided on by the MHA decision maker are because the patient will not be, and indeed should not be, discharged into any care arrangements that do not include them.

63. Conclusion. The FTT (and the Secretary of State) cannot lawfully pass responsibility for deciding what the protective conditions are to be to the Court of Protection or the DOLS decision makers. This is so even though breach of the statutory duty created by s. 73(4)(b) of the MHA does not of itself trigger a recall to hospital.
64. … the Court of Protection or the DOLS decision maker could refuse to authorise any such placement and if that happened the provider would be likely to refuse to continue to provide it.
65. If that was to happen the Secretary of State could vary the conditions or recall the restricted patient or, subject to timing the restricted patient would have the right to make an application to the FTT under s. 75 of the MHA…”

Those lacking capacity to consent to their confinement

Charles J confirmed that “A restricted patient who is conditionally discharged is not ineligible to be deprived of his liberty by the MCA and so if the implementation of the conditions selected by the MHA decision maker would result in a deprivation of liberty it can be authorised under the MCA by the Court of Protection or under the DOLS (provided of course that the relevant tests and assessments are satisfied).” (para 113).

Those with capacity who consent

In RB, the Upper Tribunal’s view was that the patient could not validly consent to his deprivation of liberty because it was not “free and unfettered” and “consent to alternative conditions of his detention regime is not the same as his consent to the existence of the regime itself”. All parties in the present case agreed that this conclusion was obiter (para 46). This is important because the Court of Appeal’s subsequent reasoning assumed that RB had capacity but could not give a valid consent.

Charles J provides obiter comments on these obiter comments. He fundamentally disagrees with the approach to consent and provides detailed reasons (para 124-133). His Lordship makes the crucial point “the existence of only unpleasant choices does not prevent the individual patient having the right to choose or the Court of Protection from choosing on his behalf” (para 130). At the same time, one must “be alive to the possibility that an expression of consent may not be “real”, but if real consent is given to the relevant protective conditions there will be no deprivation of liberty under or in breach of Article 5. Given that many patients are legally represented before the FTT by panel solicitors, if a represented patient gives consent after discussing the matter with his lawyers then the FTT can usually be reassured that the consent is real” (para 132). His Lordship also considers the risk of such a patient withdrawing their consent (para 134-139).

Timing of DoL authorisations

His Lordship held that:

“114. A standard authorisation under the DOLS can provide for it to come into force at a time after the time at which it is given (see paragraph 63 of Schedule A1 to the MCA). Also, in my view the Court of Protection can approve a care plan and authorise any deprivation of liberty it would create from a date in the future (i.e. when it comes into effect).”

Conclusions

The conclusions of this detailed judgment can be found at paragraph 141:

“2. The FTT has power to impose (and so direct a conditional discharge on) conditions that when implemented will, on an objective assessment, give rise to a deprivation of liberty that is lawful because it has been authorised by the Court of Protection under the MCA or pursuant to the DOLS contained in the MCA (the MCA authorisations) and so complies with Article 5.

3. The FTT should consider and generally should include in the protective conditions it imposes an ability to apply to it for a variation or discharge of them on the basis of a material change in circumstances (a) if a variation or discharge is refused by the Secretary of State or the FTT agrees to consider the application, and (b) if the FTT is invited to consider such an application by the Court of Protection (or a DOLS decision maker).
4. The MCA authorisations can only be given if the relevant restricted patient lacks capacity to consent to the relevant conditions and is not ineligible to be deprived of his or her liberty by the MCA. Provided that the terms and conditions that give rise to the deprivation of liberty do not conflict with conditions the FTT have decided are necessary and have identified the restricted patient will not be ineligible and such authorisations can be given under the MCA applying the tests it sets out.
5. Both of the MCA authorisations can be given to come into effect at a future date or on a future event but the MCA decision maker needs to know the conditions (including those that when implemented will objectively give rise to a deprivation of liberty) that the FTT considers necessary to satisfy the tests under the MHA, before the MCA decision maker can properly make the relevant MCA decision.
6. So, the FTT needs to identify what conditions it considers need to be in place as and when the direction for the conditional discharge of the restricted patient takes effect so that the MCA decision maker knows what they are when applying the MCA tests.
7. The FTT will need to be satisfied that the proposed placement on the relevant conditions (and so the relevant care plan) is sufficiently defined and an available option in practice and if it is not when it will be so available (see KD v A Borough Council, the Department of Health and Others [2015] UKUT 0251 (AAC) at paragraph 68).
8. The parties will therefore need to provide the necessary evidence on this and any other factors that will need to be taken into account by the FTT
9. The FTT should apply the guidance given by Upper Tribunal Judge Jacobs in DC v Nottinghamshire Healthcare NHS Trust and the Secretary of State for Justice [2012] UKUT 92 (AAC) on when the FTI should adjourn, make a decision under s. 73(7) of the MHA or a provisional decision in reliance on R (H) v SSHD [2003] QB 320 and [2004] 2 AC 253).
10. The Court of Protection and the DOLS decision makers cannot override the conditions identified by the FTT and so can only choose between alternatives that include them.“

Comment

This is a very important decision as it significantly limits the damage done by the controversial RB decision. It is entirely possible for a person lacking capacity as to residence/care to be given a conditional discharge from detention under the MHA 1983 if the conditions amount to an objective deprivation of their liberty, so long as that deprivation of liberty is authorised in advance either by the Court of Protection (for supported living placements etc) or DoLS (care homes or hospitals). The MHA and the MCA can therefore work in parallel, achieving different purposes.

A degree of controversy is likely to continue, however, regarding those with capacity who consent to community confinement. This is because Charles J in KC disagrees with Collins J in R (G) v MHRT [2004] EWHC 2193. We are convinced by the powerful reasoning of Charles J but inevitably the higher courts will need to resolve the issue on another day. The analysis around the meaning of “consent” in such coercive circumstances as mental health is particularly interesting and is equally relevant to patients’ capacitous decisions to “voluntarily” be admitted to psychiatric hospitals. If they withdraw their consent, the holding powers under MHA s 5 are available. If conditionally discharged patients withdraw their consent, paras 137 to 138 of the KC judgment provide further food for thought.

The implications of the decision go beyond conditional discharges, and surely suggest that it is equally possible (as the wording of Sch 1A to the MCA, the DOLS Code of Practice and the 2015 MHA Code of Practice suggest) for section 17 leave to be given for a detained patient for them to receive treatment for a physical disorder in a general hospital in circumstances amounting to a deprivation of their liberty – i.e. that (as we made clear in our note) A Local Health Board v AB [2015] EWCOP 31 was wrongly decided.

Article 5 ECHR - DOLS authorisations, Mental Health Act 1983 - Interface with MCA, Mental Health Act 1983 - Conditional Discharge 02nd July 2015