A Local Health Board v AB
If there ever had been reason to doubt that Schedule 1A to the MCA 2005 is irredeemably flawed, this case is it. The facts of the case are tragic, the outcome – substantively – is entirely correct, but the hoops through which it was necessary for the parties to go were ludicrous.
AB, a 34 year old woman, had a serious and life threatening cardiac condition, the recommended treatment for which was surgery. She was detained under s.3 MHA 1983 at a low secure private hospital, her diagnoses including mild/borderline learning disability, a working diagnosis of autism, and a schizophrenic illness with prominent persecutory thinking. In consequence, she lacked the capacity to make decisions as to her medical treatment (and to conduct proceedings in relation to her medical treatment).
The local health board made an application to the Court of Protection for declarations and decisions in relation to AB's capacity and best interests as regards heart surgery, as well as (prior) dental surgery to remove her lower teeth. The intention was that AB would be granted leave under s.17 MHA 1983 by her Responsible Clinician to attend at the general hospital for purposes of undergoing both treatments.
The assessment by the court of the evidence before it as to AB's capacity and best interests was scrupulous, as were the attempts made to engage AB in the process (attempts which ultimately did not involve her speaking to the judge because AB's anxiety at the number of professionals who had been to see her led her to decline to see anyone further, even if that was the judge who was to make the decision). It is particularly noteworthy that the judge made entirely clear:
"64. The fact that AB suffers with serious psychological difficulties and has been subject to in-patient treatment compulsorily under the MHA so that it may be considered by some that she does not have an equivalent quality of life to a person with capacity and without her difficulties should be excluded from the court's consideration. Otherwise a person in need of a protective decision would be at risk of being treated less favourably than any other person."
HHJ Parry recognised that "imposing two unwanted surgical procedures on AB, one of which is serious and accompanied by risks in itself undermines her personal autonomy over her own body and is therefore a very serious step and only to be taken where it is necessary in her own interests. This is not a case in which the proposed course of medical treatment is merely desirable or would make AB's day to day life easier. She is at risk of dying if she does not undergo this particular cardiac surgery and the necessary pre – operation dental extractions." However, taking all the evidence into account, including the steps that could be taken to reduce and manage identified risk factors, HHJ Parry concluded that it was in AB's best interests to undergo both medical procedures.
Were it not for the discussion as to deprivation of liberty, we would have noted this case in passing as a Short Note, emphasising the passage at paragraph 64 set out above. However, the judge was required to grapple with the implications of the fact that AB was detained under the Mental Health Act 1983, and her conclusions there are (a) of sufficiently wide ramifications; and (b) (to us) sufficiently concerning, that they require further analysis.
HHJ Parry concluded, on the basis of an agreed statement of the law, that:
- Both before and during the procedures, AB would be subject to restraints amounting to a deprivation of her liberty. This would be a further deprivation of liberty to that to which she was subjected as a result of her detention under the MNA 1983, for which separate authority was required (applying Munjaz v United Kingdom  ECHR 1704);
- AB was either within Case A or Case B of Schedule 1A to the MCA 2005 because either:
- She would be detained at the general hospital 'under the mental health regime' if conditions were attached to the s.17 MHA 1983 leave requiring her to stay at the hospital; or
- If no conditions were attached to the s.17 MHA 1983 leave, she would be within Case B.
- In either case, the Court of Protection could not exercise its powers so as to authorise the deprivation of her liberty (and hence to make an effective welfare order):
- If AB was in Case B, this would be because of the wording of paragraph 3(2) of Schedule 1A, which provides that unless the proposed treatment is in accordance which the relevant regime (i.e. here the hospital treatment regime) imposes, she would be ineligible;
- If AB was in Case A, this would be so simply by virtue of the operation of Case A (as in Dr A's case  EWHC 2442 (Fam);
- It was therefore necessary, as in Dr A's case, for relief (including declarations and decisions as to AB's best interests as well as authority for the deprivation of liberty that would arise in consequence of the medical procedures) to be granted under the inherent jurisdiction of the High Court (applying, by analogy, the s.4 MCA checklist).
The substantive outcome of this case is clearly correct, and it represents a textbook analysis of both capacity and best interests in a difficult clinical dilemma. The case is also important because it represents the first discussion (at least in a reported case) of the Strasbourg court's identification in Munjaz of the concept of residual liberty – i.e. the fact that a person is lawfully deprived of their liberty under one statutory regime does not mean that consideration must not be given to whether they are subject to an additional deprivation of their liberty requiring justification. Curiously, whilst this was, in fact, in issue in Dr A's case, it appears that the case was not cited to Baker J. We must, however, with due respect to those involved, register a considerable note of caution as to the correctness of the legal analysis adopted to reach the conclusion that AB would be ineligible to be deprived of her liberty at the general hospital. If the analysis is correct, it means that where a responsible clinician grants s.17 leave from a psychiatric to a general hospital with conditions that amount to a deprivation of residual liberty, the MCA cannot be used to authorise it because P will be ineligible. Either the conditions must be relaxed so as to avoid the acid test being satisfied or if, as is very likely, this is not possible, an application to the High Court under the inherent jurisdiction will be required (or, possibly, s.17(3) MHA 1983 should be invoked). The conventional approach, and that reflected in the Code of Practice to the DOLS safeguards, has always been understood to be the following:
- This applies where the person is currently subject to and detained under one of the stated sections of the MHA. It is the managers of the psychiatric hospital named in the application/order/direction that are authorised to detain the patient (see MHA ss 34, 6(2)).
- A person is not subject to Case A if they are given s.17 MHA 1983 leave from a psychiatric hospital to receive treatment for a physical disorder in a general hospital. They continue to be 'liable to be detained' by the psychiatric hospital managers but are not detained under the stated section. See paragraphs 4.41 and 4.51 of the DoLS Code of Practice, in particular the latter, which provides that "[p]eople on leave of absence from detention under the Mental Health Act 1983 […] are, however, eligible for the deprivation of liberty safeguards if they require treatment in hospital for a physical disorder." See also paragraphs 31.8-3.11 of the new Mental Health Act Code of Practice.
- A residence condition imposed by an RC under s.17 is not, itself, sufficient to give rise to a deprivation of liberty, confinement for these purposes requiring both continuous supervision and control and a lack of freedom to leave. See, by analogy, the UT decision in NL v Hampshire County Council  UKUT 475 (AAC) in relation to guardianship.
- In the case of an individual who is subject to the hospital treatment regime (i.e. here, s.3 MHA 1983) but not detained under that regime, Case B applies and the MHA and the MCA can operate in parallel. Here, the patient continues to be 'liable to be detained' in the psychiatric hospital whilst on leave to the general hospital but is not detained under the hospital treatment regime.
- The effect of paragraph 3(2) of Schedule 1A is to ensure that decisions taken under the MHA (including residence conditions under s.17 MHA 1983 – see paragraph 3(3)) take primacy. In other words, one could not have a standard authorisation authorising the deprivation of an individual's liberty at hospital A if the patient's RC had imposed a residence condition under s.17 requiring them to be at hospital B.
- In a case such as that of AB, decisions as to treatment for physical disorder could not be taken under the MHA 1983. The MHA 1983 only gives authority – under Part IV – for decisions to be taken in respect of treatment for mental disorder. Decisions as to physical treatment could either be taken on the basis that the clinicians were able to rely upon the defence in s.5 MCA 2005 or – as in AB's case – on the basis that authority was required by way of an order from a court. A decision as to purely physical treatment could therefore never be a "requirement imposed by the mental health regime" for the purposes of paragraph 3(2) of Schedule 1A;
- As a matter of logic, therefore, in the context of the delivery of treatment for physical disorder, assuming that any s.17 leave granted was to the hospital at which the proposed treatment was to be given, it is difficult to envisage there being a conflict between the course of action that would be authorised by an order of the Court of Protection under s.16(2)(a) MCA and "a requirement imposed by the mental health regime."
Whilst the issues relating to the operation of s.17 leave set out above were not addressed in terms in NHS Trust v FG  EWCOP 30, we would note that Keehan J appears (rightly) to have been entirely content to exercise the jurisdiction of the Court of Protection so as to provide for the lawful deprivation of liberty of a woman detained under s.3 MHA 1983 who was to be granted leave under s.17 MHA 1983 to a general hospital for purposes of undergoing a Caesarian section. Indeed, the tenor of the guidance given by Keehan J was to the effect that, where an application to the Court of Protection was not required (because the procedure would not amount to serious medical treatment), the key consideration was that there was proper coordination between the two hospitals so as to ensure that any necessary standard authorisation was in place prior to the woman being transferred to the maternity unit at the general hospital (see paragraph 101).
We hesitate to raise the difficulties outlined above because, on one view, they could be characterised as lawyerly dancing on the heads of a pin. However, if AB is correct, then this suggests that very many more applications in relation to psychiatric patients requiring procedures for physical disorders will be required to the High Court (not the Court of Protection) in cases where the sole reason for so doing is to obtain authority for deprivation of liberty.
Given that – albeit in stellarly badly drafted form – Parliament has provided a mechanism for the MHA and the MCA to operate in parallel without recourse to the courts, we look with interest to whether this issue is revisited in due course.
 There is a glancing reference in the relief sought by the Trust (at paragraph 17) to the inherent jurisdiction as an alternative basis for authority for the deprivation of FG's liberty, but Keehan J approached matters squarely on the basis that he was exercising his jurisdiction as a Court of Protection judge to make the substantive declarations and decisions: see paragraph 33. Applying the logic of Dr A's case and AB's case, he would not have been entitled to do so if he considered that FG was ineligible to be deprived of her liberty under the MCA 2005.