Judge: Charles J
Citation:  UKUT 0376 (AAC)
Ever since the decision in SSJ v RB  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:
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:
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.
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).”
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.
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  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  EWCOP 31 was wrongly decided.