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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> MM v WL Clinic & Anor (Mental health : All) [2015] UKUT 644 (AAC) (23 November 2015) URL: https://www.bailii.org/uk/cases/UKUT/AAC/2015/644.html Cite as: [2016] MHLR 198, [2015] UKUT 644 (AAC) |
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DECISION
1. This appeal is allowed.
2.
I remit MM’s
application
to the FTT on the bases that:
a.
it should
apply my
decision in Secretary of State for Justice
v
KC and C Partnership
NHS Foundation Trust [2015] UKUT 376 (AAC) (the KC case)
in determining its jurisdiction, and
b.
it should
apply my
conclusions in this decision (see in particular paragraphs 64 to 68
hereof).
REASONS
Introduction
1.
This appeal raises
the point whether for the purposes of Article 5 a restricted patient who has
the capacity to do so can give a valid
consent to the terms of a conditional
discharge that, when it is implemented, will on an objective assessment create
a deprivation of the patient’s liberty.
2.
It is therefore a
follow up to my
decision in Secretary of State for Justice
v
KC and C
Partnership NHS Foundation Trust [2015] UKUT 376 (AAC) which
related to a restricted patient who lacked the relevant capacity to consent to
the conditions of his conditional discharge, his care package and any
deprivation of his liberty that would arise from their implementation. However
I set out
views
on the position of a restricted patient with the relevant
capacity at paragraphs 124 to 139 where I said:
A restricted patient who has the capacity to consent to the protective conditions that if implemented would result in his deprivation of liberty
124. In the RB case
the Upper Tribunal expressed the following views
at paragraphs 60 to 62 of
their decision:
i. The tribunal raised a
separate point that RB’s “valid
and
meaningful
consent to a
move
to [the care
home] (a
move
which would
manifestly
be in his interests) would prevent the
deprivation of his liberty amounting to a breach of Article 5. It relied on
comments in Stork, para 73 that:
“ -- A person can only be considered to have
been deprived of his liberty if, as an additional subjective element, he has
not validly
consented to the confinement in question -- ”
ii. We cannot accept this line of reasoning. (As already noted, a similar line of argument was rejected by Collins J in G [2004] EWHC 2193) ---------
iii. By contrast, in the
present case it cannot be suggested that RB consented to his initial
psychiatric detention. He has at all material
times been detained by
virtue
of
an order imposed by the Court under the
Mental
Health Act 1983. He has never
been offered the option of absolute discharge nor is there any prospect of such
an offer being
made
in the foreseeable future. The only alternative presented
to RB is to agree to a condition of his detention within his present regime or
to agree the alternative regime contemplated in the Tribunal's order. This
very
limited choice cannot be equated to a free and unfettered consent to
psychiatric detention order the conditions proposed by the Tribunal. A
person's consent to alternative conditions of his detention regime is not the
same as his consent to the existence of the regime itself.
125 These views
and
my
comments on them are obiter.
126 I disagree with the
reasoning that founds those views
and so also with the reasoning in the G case
(R(G)
v
Mental
Health Review Tribunal in particular at paragraph 23).
In
my
view,
that line of reasoning is flawed because:
i)
it
places incorrect reliance on a continuation of a liability to be detained, the
lack of consent to the original detention, the lack of an offer of an absolute
discharge, the lack of any such offer being made
in the foreseeable future and
the point that the situation of a
voluntary
patient under s. 131 of the
MHA
is
different because it only applies when there is no order or direction rendering
the patient liable to be detained under the
MHA,
ii)
it
is at odds with the nature of a conditional discharge under s. 73 of the MHA
(see paragraphs 83 to 88 above – this reference is incorrect and it should be
to 85 to 91),
iii)
importantly,
and in any event, it fails to recognise that the risk of recall, and so the
liability to be detained in the same compulsory way as existed before a
conditional discharge, does not mean
that the nature and effect of a
deprivation of liberty that will arise on a conditional discharge based on
different considerations and powers does not give rise to a choice particularly
when, as in the case of RB and here, the change would
manifestly
(a) be
to a different regime of care, support and control, and (b) be in the best interests
of the relevant patient,
iv) RB could have applied for an absolute discharge even though his prospects of getting it would have been low, and accordingly
v)
style='font:7.0pt "Times New Roman"'>
it
proceeds on the
mistaken
premise that all detentions and deprivations of
liberty within or related to a regime should be treated as being the same and
so fails to recognise that (a) just as with a
move
to being a
voluntary
patient
the offer of a conditional discharge gives rise to a real choice between
alternatives including ones between
more
and less restrictive options and ones
that in
many
cases will have a
marked
impact on the living conditions and the
short,
medium
and long term best interests of the patient, and (b) the consent
would not have been to the continued existence of the pre-existing regime of
care, support and control.
127 The Secretary of State
argued that the situation is analogous to that of a prisoner being transferred
from high to low security or to hospital and such a prisoner cannot be said to
consent to the underlying detention. I do not agree because there the source
of the underlying detention remains the same and in any event I see no reason
why, if it was necessary to found a lawful move,
the prisoner could not give
informed and
valid
consent to the implementation of the changes to the
manner
in which he was to be detained.
128 Further, if this
approach and conclusion of the Upper Tribunal in the RB case is right it
creates difficulties in the way of the Court of Protection making
the relevant
choice on behalf of a patient who lacks capacity (which was an integral part of
the Secretary of State’s jurisdictional solution to the problems created by the
RB case). This is because the underlying theme of the
MCA
is that it
enables things to be done on behalf of the patient that he could do himself if
he had capacity and, as I have explained, the best interests jurisdiction of
the Court of Protection is exercised by
making
choices between available
options. To
my
mind
correctly no-one suggested that the Court of Protection
could not
make
the equivalent choice for KC that the Upper Tribunal concluded RB
could not give a
valid
consent to.
129 Further, the conclusion
of the Upper Tribunal in the RB case founds the surprising and arguably
discriminatory result that a restricted patient over whom the Court of
Protection has no jurisdiction, or who is not covered by the DOLS because he
has the relevant capacity, is in a worse position than a patient who lacks that
capacity. In my
view,
the point
made
by the Secretary of State that the powers
of the FTT are the same for both types of patient is not an answer to this
problem. This is because it is the result that
matters
and the relevant issue
is not directed to the powers of the FTT but to whether consent to conditions
can be given by or on behalf of the patient.
130 The choices presented
to the Court of Protection and a patient with the relevant capacity can be
limited or wide and easy or difficult. For example, they may
have to
make
choices between whether to have unpleasant and risky surgery for a
medical
condition or not to have surgery knowing the underlying condition
may
lead to
death. However 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.
131 Having said that
limitations on, or the existence of influence in respect of, the choice are
relevant factors as is shown for example by Freeman v
Home Office (No 2) [1984]
QB 524. That case, at the appeal stage, turned on the issue whether a
vulnerable
prisoner could give
valid
consent for drugs to be administered to
him when he had initially refused to provide consent. The trial Judge found
for the Home Office on the facts but acknowledged that a person’s consent
must
be
voluntary.
His approach, endorsed by Lord Donaldson at 557, was as follows:
The right approach, in my
judgment, is to say
that where, in a prison setting, a doctor has power to influence a prisoner's
situation and prospects a court
must
be alive to the risk that what
may
appear,
on the face of it, to be a real consent is not in fact so.
132 So, in my
view,
the FTT
(and other decision
makers)
need to 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.
133 Finally, the right to
give or refuse consent to something is an expression of the autonomy of the
individual and thus the state has a duty to respect that expression of autonomy
under Article 8 ECHR. That right applies equally to a detained mental
health
patient who has capacity as it applies to any other person, particularly in the
context of a possible discharge. So it is at least arguable that a conclusion
that a
mental
health patient does not have the right to give consent to abide
by a set of conditions is not compatible with Article 8(2) ECHR.
The problems arising from the ability to withdraw consent.
134 This practical problem
arises in the case of a voluntary
patient where it is alleviated by the
provisions of s. 5 of the
MHA.
But the underlying practical assessments of
whether there will be continuous
voluntary
compliance are similar in the cases
of a
voluntary
patient and a conditionally discharged patient.
135 A particular problem in
respect of a deprivation of liberty (e.g. restraint or a restriction on leaving
a place) is that, on the analysis of Holman J in R (SH) v
Mental
Health
Review Tribunal [2007] EWHC 884 (Admin), which concerned
medical
treatment,
the relevant consent is subject to a condition that it can be withdrawn at any
time and so as and when it is the person exercising the restraint or
restriction could not rely on the earlier consent as a defence to a claim that
he or she acted in breach of Article 5. At paragraph 35 of his judgment
Holman J said:
The law with regard to consent to treatment is
clear and I have already quoted extensively from In re T. An adult of
full capacity has an absolute right to choose whether to consent to medical
treatment. That applies to every aspect of treatment and every occasion of
treatment. Thus in this case, on each occasion that SH attends, or should
attend, for his fortnightly depot injection he has an absolute right to choose
whether to consent to it or not. The treating doctor or nurse
must,
on each
occasion, satisfy himself that the apparent consent is a real consent and that
the independence of the patient's decision or his will has not been overborne
(see the language of Lord Donaldson in In re T). As Freeman
makes
clear, that is in every case and on every occasion a question of fact for the
doctor and, in the event of legal challenge, the court. That is the law and
Parliament has not derogated from it save by such express provisions as section
58. The tribunal
must
be presumed to know the law and, in
my
view,
condition 1
is intended to be, and should be, read as subject to the general law.
136 I am not convinced by
that analysis and result. But unless and until it is challenged and tested it
places a considerable obstacle in the way of a patient with capacity being able
to benefit from steps designed to enable him or her to return to the community
and which are in his or her best interests. This is because those providing
the care and support in the community may
not be prepared to take the risk that
the patient will not withdraw his or her consent to the terms and conditions of
the placement.
137 It seems to me
that it
may
be appropriate to revisit the SH case on the basis that a person
with capacity can and often does agree (a) to act in a certain way, and (b)
that others can act in a certain way towards him or her for a set period of
time or until the expiry of a reasonable notice. Someone who has capacity can
do this in respect of a
variety
of important rights and
matters
and thereby
restrict his or her freedom of action and autonomy in respect of them. In
my
view,
it is arguable that this ability extends to fundamental human rights
whose purpose is to protect and benefit the individual. And, if that is so, it
is arguable, in the context of s. 73 of the
MHA,
that a patient can agree to
comply with the statutory duty it imposes (just as he or she could give an
undertaking to a court) up to the expiry of a notice withdrawing his consent or
further order of the FTT. Those providing the care and support could then look
to the continuing statutory duty or consent to provide a defence to any claim
against them.
138 I acknowledge that that
direction of travel may
also provide a starting point for an argument that
contrary to the ratio of the RB case, the statement cited in paragraph
109(2) above and indications contained in the eligibility provisions in
the
MCA,
that the
MHA
does provide a statutory basis for the process prescribed
by law that is required by Article 5.
139 These are points for another day.
3.
In PJ v
A Local
Health Authority and Others [2015] UKUT 480 (AAC) I concluded that it
would not be appropriate to convert those obiter conclusions in the KC case
to ratio stating that there was little doubt that an appeal would be
made
in
which if they were followed they would be ratio. This is such an appeal.
4.
In the KC case
I reached conclusions on the ratio of the decision of the Court of Appeal in
the RB case (reported as Secretary of State for Justice v
RB [2012]
MHLR
131 and B
v
Justice Secretary [2012] 1
WLR
2043 - the decision
of the Upper Tribunal in that case is reported at [2010] UKUT 454 (AAC)).
My
conclusion rejected the argument advanced by the Secretary of State that the
FTT had no power to
make
the FTT Decision because the RB case is binding
authority to the effect that no FTT can direct a conditional discharge of a
restricted patient on conditions that, if they are put into effect, would
result in a deprivation of liberty of the patient outside hospital.
My
conclusion was that the ratio of the RB case on the power conferred by
s. 73 of the
MHA
:
i)
goes no wider than
the proposition that the lawfulness requirements of Articles 5(1) and 5(4)
relating to a deprivation of liberty resulting from conditions imposed on the
conditional discharge of a restricted patient cannot be founded on the MHA
alone, and so is that
ii) the FTT cannot when directing a conditional discharge impose conditions that when they are implemented would be a deprivation of liberty in breach of Article 5 and so unlawful.
5.
I was told that the
Secretary of State had not appealed my
decision in the KC case on the
jurisdiction of the FTT to direct a conditional discharge because he was
content with the result so far as KC was concerned. Nonetheless his argument
on this appeal included submissions:
i) under the heading ”the legal framework” that the KC case was inconsistent with paragraph 58 of the judgment of Arden LJ in the RB case, and
ii) under the heading “Discrimination and Article 8” that the KC case was wrongly decided and that the true ratio of the RB case was, as the Secretary of State had argued, that the FTT has no power to impose conditions on a conditional discharge that would when implemented give rise to a deprivation of liberty.
6.
I do not understand
that stance because the result in the KC case was that the
Secretary of State should invite the FTT to reconsider KC’s application
applying my
conclusion on its jurisdiction. But it
may
be that the
incident referred to in paragraph 25 of
my
decision in the KC case has
rendered such a re-consideration unnecessary. I did not pursue this at the hearing
because I was told that the Secretary of State was not submitting to FTTs that
my
conclusion on the ratio of the RB case was wrong but was proceeding
on the basis that at present
my
decision on that ratio was the law, although he
might
challenge it on an appeal in this case if I decided it against the
Secretary of State.
7.
This leads to the
unsatisfactory position for restricted patients that before FTTs the Secretary
of State would be reserving or simply not advancing his argument on their
jurisdiction and may
be considering the exercise of his power to direct a
conditional discharge on the basis that the KC case was wrongly
decided. Reserving or simply not advancing that issue before FTTs clearly
causes problems and creates the possibility of time and
money
being wasted by
patients, the tribunal, local authorities and the Court of Protection.
8.
In my
view,
as a
matter
of good administration, the Secretary of State should “put up or shut
up” on this point and if he is going to challenge
my
decision on the ratio of the
RB case, and so on his jurisdiction and that of the FTT when directing a
conditional discharge, he should do so as soon as possible. It would also be
preferable if the issue came before the Court of Appeal in cases involving a
patient with and a patient without the relevant capacity.
9. The two types of case should be considered together to ensure that any arguments that a distinction between the two classes of restricted patients is justified are properly before the court.
10. Save in the context of the application of Article 8 and discrimination (and notwithstanding the written submission to the contrary under the heading “legal framework”) this appeal was argued on the bases that:
i)
my
decision in the KC
case on the ratio of the RB case was not being challenged, and
ii)
the central issue
was whether my
obiter
views
cited above in respect of a patient with capacity were
correct.
11.
In any event, I have
concluded that I should proceed on the basis that my
conclusion in the KC case
on the jurisdiction of the FTT is correct.
The factual background in this case
12.
MM
is 32 years old. He has a diagnosis of
mild
learning disability, autistic
spectrum disorder and pathological fire starting. He was convicted of arson on
27 April 2001. The court imposed a hospital order under section 37 with a
restriction order under s. 41 of the
Mental
Health Act 1983 (the
MHA).
He was
conditionally discharged in 2006 but his behaviour deteriorated and he was
recalled to hospital in April 2007. The
main
areas of serious risk that he
poses relate to fire starting and his relationships with females.
13.
His
case came before the FTT on 18 May
2015. His responsible
clinician
and treating
team opposed any discharge. They considered that transfer to another low
secure unit would be appropriate (but the detail of what was proposed as to
this was not before the FTT). Two external experts considered that
MM
could
safely be
managed
in the community under a conditional discharge provided that
a suitable care package was in place.
14.
MM’s
counsel submitted that he was not in a position to invite the FTT to direct
deferred conditional discharge as no comprehensive care plan had been
formulated. However, it was accepted that any care plan would involve a
deprivation of liberty. Applying the objective Cheshire West approach
it is clear that this would be the case.
15.
In
those circumstances, the FTT was invited to determine, as a matter
of
principle, whether it would be lawful to grant discharge on the condition that
MM
must
comply with the terms of his care plan.
16.
It
was conceded on behalf of MM
that the anticipated care plan would include terms
which, if set out as conditions of discharge, would fall foul of the decision of
the Court of Appeal in RB, but it was submitted that this should not
prevent the imposition of a general condition that
MM
must
comply with his care
plan. It was also submitted that the deprivation of liberty could be
validated
by
MM’s
consent.
17.
The
points of principle were decided on the basis that, as was asserted on his
behalf and was not disputed, MM
had capacity to consent to the terms of a care
package outside hospital and its consequence, namely that objectively it would
deprive him of his liberty and so be in breach of Article 5 and unlawful unless
it was rendered lawful by his consent.
18. The FTT held that:
The
central question for the tribunal to decide is whether it is lawful when making
a conditional discharge to bypass the effect of RB by not including conditions
which would amount to a deprivation of his liberty… The conclusion of the
tribunal is that a deferred conditional discharge containing the single
condition of compliance with the [care plan] would not be a lawful order of the
tribunal… In the normal course of events a conditional discharge would set out
each condition seriatim, and the only reason to consider the “single care plan”
option is to circumvent the thrust of the decision in RB. It is not for this
tribunal to approve a process which has been so roundly condemned by the Court
of Appeal. Not only do we feel bound by the RB decision but on the facts of
this case, as set out above, we conclude that [
MM]
requires the clarity of
knowing the particular conditions that apply in his case. It
may
be that the
tribunal’s decision does not sit comfortably with the practice being carried
out when there is consent by all parties, but that is not a problem for this
tribunal to resolve”.
19.
As
to the question of consent, the FTT adopted the obiter observations of the
Upper Tribunal in the RB case cited above in the extract from my
decision in the KC case (although it attributed them to the Court of
Appeal) that consent to alternative conditions of detention is not the same as
consent to the existence of the regime itself and, in any event, held that:
Given
the history of [MM]
his propensity for changing his
mind,
the tribunal is
satisfied that, even if it were capable of
validating
the deprivation of
liberty factor, he has not given a true unfettered consent- he clearly wishes
to be out of hospital and is not consenting for the purpose of his treatment.
Thus, although the tribunal feels bound by the RB observations, we find as a
fact in [
MM’s]
case that any consent he gave would not be a genuine, properly considered
and reliable consent.
The decision of the FTT and the grounds of appeal
20.
The
FTT decided the point of principle against MM
on two bases.
21. First, it rejected the argument that the RB case did not preclude the FTT from directing a conditional discharge on the basis that the condition was drafted in general terms. In doing so, the FTT effectively accepted that the ratio of the RB case accorded with the argument of the Secretary of State that I rejected in the KC case.
22.
Secondly, on the
issue whether a capacitous patient can give valid
and effective consent to
conditions of discharge which, objectively, involve a deprivation of liberty, the
FTT adopted the obiter
view
of the Upper Tribunal in the RB case.
23.
The FTT could not
have considered the ratio of my
decision in the KC case on the
jurisdiction issue, or
my
obiter comments on the consent issue.
24.
It is interesting to
note the practice referred to by the FTT. This practice indicates that the
impact of the Secretary of State’s jurisdictional argument on the ratio of the RB
case is sometimes avoided when a capacitous restricted patient gives
consent to an agreed placement outside hospital. Counsel for MM
told
me
that
this practice
means
that it is when, as here, there is disagreement that the RB
jurisdictional point is raised. Any such practice or approach to a
jurisdictional argument is plainly unsatisfactory.
25.
It is clear from the
ratio of my
decision in the KC case that in
my
view
the FTT erred in law
in its application of the RB case. It is also clear that the “consent
point” is not reached if that conclusion in the KC case is wrong
and the Secretary of State’s argument on the jurisdiction of the FTT that I
rejected in the KC case is right.
26.
So, a stepping stone
to success for MM
is that applying the KC case the FTT has jurisdiction
to direct the conditional discharge he seeks. As I have already
mentioned
I am
proceeding on the basis that
my
decision in the KC case on the
jurisdiction of the FTT is right.
27.
So, as I am against
the Secretary of State on the consent point, I remit this to the FTT on the
basis that it should apply the KC case in determining its jurisdiction.
This means
that both the jurisdictional and the consent points are part of the
ratio of this decision.
The finding of fact made
by the FTT
28.
The Secretary of
State argued that this meant
that
MM
had not given unfettered consent to the
proposed (but undefined) care package and that the FTT had found as a
matter
of
fact that the reason for this was that the consent he gave was fettered by the
threat of continued detention. I reject that argument.
29.
First, the FTT does
not give that reason for its conclusion. Second, on the common ground before
the FTT that MM
had the relevant capacity, it is not easy to see why it reached
the conclusion that any consent he gave would not be genuine etc..
Third, it seems that the FTT
may
have based this conclusion on his
changeability but that does not
mean
that he could not give a
valid
and
effective consent in law; rather it goes to whether the test set by s. 73(1)(a)
is satisfied. Fourthly, this finding is at least in part based on the approach
taken in the RB case to consent and if that is wrong it taints the
finding and that error in law cannot be avoided by asserting that the same
answer is reached by a finding of fact.
The most
relevant provisions of the
MHA
30. I set these out in the KC case (at paragraphs 26 to 32) and repeat them here.
31. Section 37 provides that:
(1)
Where a person is convicted before the Crown Court of an offence punishable
with imprisonment other than an offence the sentence for which is fixed by law,
or is convicted by a magistrates'
court of an offence punishable on summary
conviction with imprisonment, and the conditions
mentioned
in subsection (2)
below are satisfied, the court
may
by order authorise his admission to and
detention in such hospital as
may
be specified in the order or, as the case
may
be, place him under the guardianship of a local social services authority or of
such other person approved by a local social services authority as
may
be so
specified.
…
(2) The conditions referred to in subsection (1) above are that—
(a) the court is satisfied, on the written or
oral evidence of two registered medical
practitioners, that the offender is
suffering from
mental
disorder and that either—
(i) the mental
disorder from which the offender
is suffering is of a nature or degree which
makes
it appropriate for him to be
detained in a hospital for
medical
treatment and appropriate
medical
treatment
is available for him; or
(ii) in the case of an offender who has
attained the age of 16 years, the mental
disorder is of a nature or degree
which warrants his reception into guardianship under this Act; and
(b) the court is of the opinion, having regard
to all the circumstances including the nature of the offence and the character
and antecedents of the offender, and to the other available methods
of dealing
with him, that the
most
suitable
method
of disposing of the case is by
means
of
an order under this section.
32.
Where a hospital
order is made
in respect of an offender by the Crown Court, and it appears to
the court, having regard to the nature of the offence, the antecedents of the
offender and the risk of his committing further offences if set at large, that
it is necessary for the protection of the public to do so, the court
may
further order that the offender be subject to a restriction order under s. 41.
It provides:E+W
(1)
Where a hospital order is
made
in respect of an offender by the Crown Court, and it appears to the court,
having regard to the nature of the offence, the antecedents of the offender and
the risk of his committing further offences if set at large, that it is
necessary for the protection of the public from serious harm so to do, the
court
may,
subject to the provisions of this section, further order that the
offender shall be subject to the special restrictions set out in this section .
. ; and an order under this section shall be known as “a restriction order”.
(2) --
(3) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows—
(a) none of the provisions of Part II of this Act
relating to the duration, renewal and expiration of authority for the detention
of patients shall apply, and the patient shall continue to be liable to be
detained by virtue
of the relevant hospital order until he is duly discharged
under the said Part II or absolutely discharged under section 42, 73, 74 or 75
below;
(aa) none of the provisions of Part II of this Act relating to community treatment orders and community patients] shall apply;
(b) no application shall be made
to [the
appropriate tribunal] in respect of a patient under section 66 or
69(1) below;
(c) the following powers shall be exercisable only with the consent of the Secretary of State, namely—
(i) power to grant leave of absence to the patient under section 17 above;
(ii) power to transfer the patient in pursuance of regulations under section 19 above or in pursuance of subsection 3 of that section; and
(iii) power to order the discharge of the patient under section 23 above;
and if leave of absence is granted
under the said section 17 power to recall the patient under that section shall
vest
in the Secretary of State as well as the responsible
clinician;
and
(d) the power of the Secretary of State to recall
the patient under the said section 17 and power to take the patient into
custody and return him under section 18 above may
be exercised at any time;
and in relation to any such patient section 40(4) above shall have effect as if it referred to Part II of Schedule 1 to this Act instead of Part I of that Schedule.
(4)
A hospital order shall not
cease to have effect under section 40(5) above if a restriction order in
respect of the patient is in force at the material
time.
(5)
Where a restriction order in
respect of a patient ceases to have effect while the relevant hospital order
continues in force, the provisions of section 40 above and Part I of Schedule 1
to this Act shall apply to the patient as if he had been admitted to the
hospital in pursuance of a hospital order (without a restriction order) made
on
the date on which the restriction order ceased to have effect.
(6)
While a person is subject to
a restriction order the responsible
clinician
class=legdslegrhslegp2text> shall at
such intervals (not exceeding one year) as the Secretary of State
may
direct
examine and report to the Secretary of State on that person; and every report
shall contain such particulars as the Secretary of State
may
require.
33. As appears therefrom:
i) special restrictions applicable to a patient in respect of whom a restriction order is in force are set out in section 41(3), and
ii) the Secretary of State is given an important continuing role directed to promoting the protection of the public.
34. Under s. 42 the Secretary of State is granted powers over restricted patients. That section provides:E+W+S
(1)
If the Secretary of State is
satisfied that in the case of any patient a restriction order is no longer
required for the protection of the public from serious harm, he may
direct that
the patient shall cease to be subject to the special restrictions set out in
section 41(3) above; and where the Secretary of State so directs, the
restriction order shall cease to have effect, and section 41(5) above shall
apply accordingly.
(2)
At any time while a
restriction order is in force in respect of a patient, the Secretary of State
may,
if he thinks fit, by warrant discharge the patient from hospital, either
absolutely or subject to conditions; and where a person is absolutely
discharged under this subsection, he shall thereupon cease to be liable to be
detained by
virtue
of the relevant hospital order, and the restriction order
shall cease to have effect accordingly.
(3)
The Secretary of State may
at any time during the continuance in force of a restriction order in respect
of a patient who has been conditionally discharged under subsection (2) above
by warrant recall the patient to such hospital as
may
be specified in the
warrant.
(4)
Where a patient is recalled
as mentioned
in subsection (3) above—
(a) if the hospital specified in the warrant is not the hospital from which the patient was conditionally discharged, the hospital order and the restriction order shall have effect as if the hospital specified in the warrant were substituted for the hospital specified in the hospital order;
(b) in any case, the patient shall be treated for the purposes of section 18 above as if he had absented himself without leave from the hospital specified in the warrant.
(5)
If a restriction order in
respect of a patient ceases to have effect after the patient has been
conditionally discharged under this section, the patient shall, unless
previously recalled under subsection (3) above, be deemed to be absolutely
discharged on the date when the order ceases to have effect, and shall cease to
be liable to be detained by virtue
of the relevant hospital order accordingly.
(6)
The Secretary of State may,
if satisfied that the attendance at any place in Great Britain of a patient who
is subject to a restriction order is desirable in the interests of justice or
for the purposes of any public inquiry, direct him to be taken to that place;
and where a patient is directed under this subsection to be taken to any place
he shall, unless the Secretary of State otherwise directs, be kept in custody
while being so taken, while at that place and while being taken back to the
hospital in which he is liable to be detained.
These powers, and so the role of the Secretary of State, are again directed to the need for continuing protection of the public and include the power, by warrant, to discharge a patient absolutely or subject to conditions (s. 42(2)) and the power to recall a patient who has been conditionally discharged (s. 42(3)).
35. The FTT’s general power of discharge is set out in s. 72 which provides that:
(1)
Where application is made
to the appropriate tribunal by or in respect of a
patient who is liable to be detained under this Act or is a community patient,
the tribunal
may
in any case direct that the patient be discharged, and—
…
(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied—
(i) that he is then
suffering from mental
disorder or from
mental
disorder of a nature or degree
which
makes
it appropriate for him to be liable to be detained in a hospital
for
medical
treatment; or
(ii) that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or
(iia) that appropriate
medical
treatment is available for him.
36. The powers of the FTT in respect of restricted patients are set out in s. 73 which states:
(1) Where an
application to the appropriate tribunal is made
by a restricted patient who is
subject to a restriction order, or where the case of such a patient is referred
to the appropriate tribunal, the tribunal shall direct the absolute discharge
of the patient if—
(a) the tribunal is not
satisfied as to the matters
mentioned
in paragraph (b)(i), (ii) or (iia)
of section 72(1) above; and
(b) the tribunal is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.
(2) Where in the case
of any such patient as is mentioned
in subsection (1) above—
(a) paragraph (a) of that subsection applies; but
(b) paragraph (b) of that subsection does not apply,
the tribunal shall direct the conditional discharge of the patient.
(3) Where a patient is
absolutely discharged under this section he shall thereupon cease to be liable
to be detained by virtue
of the relevant hospital order, and the restriction
order shall cease to have effect accordingly.
(4) Where a patient is conditionally discharged under this section—
(a) he may
be recalled
by the Secretary of State under subsection (3) of section 42 above as if he had
been conditionally discharged under subsection (2) of that section; and
(b) the patient shall
comply with such conditions (if any) as may
be imposed at the time of discharge
by the tribunal or at any subsequent time by the Secretary of State.
(5) The Secretary of
State may
from time to time
vary
any condition imposed (whether by the tribunal
or by him) under subsection (4) above.
(6) Where a restriction
order in respect of a patient ceases to have effect after he has been
conditionally discharged under this section the patient shall, unless
previously recalled, be deemed to be absolutely discharged on the date when the
order ceases to have effect and shall cease to be liable to be detained by
virtue
of the relevant hospital order.
(7) A tribunal may
defer a direction for the conditional discharge of a patient until such
arrangements as appear to the tribunal to be necessary for that purpose have
been
made
to its satisfaction; and where by
virtue
of any such deferment no
direction has been given on an application or reference before the time when
the patient's case comes before the tribunal on a subsequent application or
reference, the previous application or reference shall be treated as one on
which no direction under this section can be given.
(8) This section is without prejudice to section 42 above.
37.
Section 75 makes
provision for applications by a restricted patient to the FTT to
vary
or
discharge any condition on a conditional discharge or for a direction that the
restriction order should cease to have effect. As is pointed out in paragraph
28 of the judgment of Arden LJ in the RB case the time limits for such
applications (2 years) is longer than that for the right of review of a
restricted patient who is detained in a hospital which is one year. Arden LJ there
described that as an inferior right of review.
38.
The Secretary of
State submits that it is significant that, under section 41(3)(a), the patient
remains liable to be detained by virtue
of the relevant hospital order until
absolutely discharged.
Further comments on the MHA
39.
I made
a number of
these under the headings “Conditions under ss. 42 and 73 of the
MHA”,
“Enforceability of the statutory duty created by s. 73(4) of the
MHA
and thus
the conditions” and “A comparison between a conditionally discharged patient who
is not deprived of his liberty in the community and a person who needs social
care and is placed by a local or other public authority in pursuance of its
duties and powers” at paragraphs 47 to 57 of
my
decision in the KC case.
40. I adopt them without repeating them here.
The arguments
41. The Appellant argued that:
i)
my
obiter conclusion
in the KC case that, for the purposes of Article 5, he could give a
valid
consent to a discharge on terms that he was to comply with conditions
that when implemented would objectively create a deprivation of his liberty was
correct, and so that
ii) such consent would have the result that so long as it continued he would not be deprived of his liberty in breach of Article 5 and the implementation of those conditions by those caring for him and others would be lawful and the least restrictive available alternative.
42.
No proposed care
package was before me
and the Appellant did not advance argument that to avoid
problems that arise in connection with the possibility that he
might
withdraw
consent he could and would give a consent in terms that restricted the
manner
or timing of its withdrawal (and so the point raised in paragraph 137 of
my
decision in the KC case).
43
The Secretary of
State effectively repeated with some additional points the arguments he had
advanced in the KC case to the effect that a restricted patient with the
relevant capacity to do so could not, for the purposes of Article 5, give a
valid
and effective consent to conditions of discharge imposed by the FTT (or
the Secretary of State) that when implemented would objectively create a
deprivation of his liberty.
44 As a basis for arguing that there was not an effective difference in treatment between a restricted patient who has and one who does not have the relevant capacity, the Secretary of State did not:
i)
repeat his argument and
approach in the KC case (that is close to the argument rejected by the
FTT in this case) that the limitation on the jurisdiction of the FTT to impose
conditions means
that the ability of the Court of Protection (or a DOLS
decision
maker)
to authorise a deprivation of liberty of a conditionally
discharged restricted patient arose, and only arose, if the relevant conditions
that created an objectively assessed deprivation of liberty were excluded from
the conditions imposed under the
MHA
and only included in the care package, and
on that basis assert that
ii) a restricted patient with the relevant capacity could consent to such conditions if they were only included in the care package.
Rather,
as it seems to me
it had to be on the basis that I applied the KC decision
on jurisdiction, the Secretary of State’s argument was simply that a restricted
patient cannot give a
valid
and effective consent to conditions governing or
relating to his discharge to, and so his residence at, a placement outside a
hospital that, when implemented, will create on an objective assessment a
deprivation of his liberty.
45
However, in respect
of the argument that there is a difference in treatment of restricted patients
to whom the Mental
Capacity Act 2005 applies and those to whom it does not, it
was submitted by the Secretary of State that capacitous restricted patients
could be and were put in effectively the same position as restricted patients
who could be lawfully placed outside a hospital in reliance on an authorisation
give pursuant to the
Mental
Capacity Act 2005 by changes to their placement in
a hospital or hospitals and the grant of section 17 leave.
46
No such hospital
placement for the Appellant was advanced before or identified to me.
If and
when it is, it is likely that it will trigger the question whether it or a
placement outside hospital advanced by the Appellant and relying on his consent
should be chosen by the
MCA
decision
maker
exercising the necessity test in s.
72 of the
MHA
that is incorporated and applied by s. 73 of the
MHA.
This
may
give
rise to the consideration of issues relating to restrictions on the withdrawal
of that consent.
47
The argument was
therefore confined to the issue whether a restricted patient with the relevant
capacity could by giving a valid
and effective consent to conditions of his
discharge that on implementation will create, on an objective assessment, a
deprivation liberty:
i) forego his Article 5 right not to be deprived of his liberty and so the benefit of that Convention right, and
ii)
create a lawful
alternative for the MHA
decision
maker.
48
The possibility that
someone can do this is recognised by the ECtHR in, for example Storck v
Germany (2005) 43 EHRR 96 at paragraphs 74 and 77.
Discussion and conclusions
The ability of a restricted patient to
give a valid
and effective consent
49
In my
view,
at the
core of the argument is a consideration of the limits placed on the freedom of
choice or autonomy of a restricted patient with the relevant capacity.
50
After I heard this
case the decision of the Divisional Court in R(LF) v
HM Senior Coroner for
Inner London South & Another [2015] EWHC 2990 (Admin) (the LF case)
was handed down. In
my
judgment in the LF case at paragraphs 137 to
139 I commented that:
137. The
mischief
addressed in Cheshire West, and the cases referred to in it, is
identified by Gross LJ at [70]. As he points out, the justification in such
cases for the diversion of resources, cost and bureaucracy inevitably involved
in the
various
applications, authorisations or administrative decisions, is, as
explained in Cheshire West (at [1]), “…a recognition that human rights
are for everyone, including the
most
disabled
members
of our community…”.
138. That recognition reflects the point that the rights given by Article 5 (and Article 8) are directed to freedom (including freedom of choice and so autonomous self determination) and that such autonomy is an aspect of the essence of both the Article 5 right to liberty and security of person and the procedural safeguards required to promote it under consideration in Cheshire West.
139. The
point that the essence of Article 5 includes the promotion and safeguarding of
a person’s autonomy is reflected by, and finds its natural home in, the
subjective element of the determination of whether there has been an Article 5
deprivation of liberty and the frequent references in the cases that a person
must
not be deprived of his liberty in an arbitrary
manner.
51
In argument in this
case the Secretary of State referred me
to De Wilde and Others
v
Belgium (1979) 1 EHRR 373, in particular at paragraphs 64 and 65, and to two other
applications to the ECtHR (Osypenko
v
Ukraine (Application No: 4634/04, [2010] ECHR 1783,
at paragraph 48 and 49 and LL
v
Bulgaria (Application No: 44082/98, [2005] ECHR 378, at
paragraph 87) to support the proposition that the crucial issue is whether the
individual has a free choice to leave, which it was submitted goes not just to
the objective element of a deprivation of liberty but also to the
validity
of
any consent.
52
In my
view
the
crucial issue is whether the individual has sufficient freedom of choice or a
real choice to agree to or reject the relevant situation on the ground.
53 This appears from what I said in the different context of the LF case at paragraphs 123 to 126, which are as follows:
123. Further,
in the context of the subjective element of Article 5, and so the consideration
of whether the consent of the relevant person means
that his Article 5 right to
liberty has not been infringed:
i) the right to liberty is
so important that the fact that the person has given himself up into detention
does not of itself mean
that he has consented to it (see HL at [90] and
Storck at [75]),
ii) consent cannot be inferred in the case of a person who lacks the capacity to give it (see HL at [90], and
iii) the consent must
be
sufficiently free and unfettered (see, for example, De Wilde and Others
v
Belgium
(1979) 1 EHRR 373 at [65], I.I.
v
Bulgaria (Application No:
44082/98, [2005] ECHR 378, at [87] and Secretary of State for Justice
v
RB [2010] UKUT 454 (AAC) at [62]).
I have addressed the RB
case on an obiter basis in Secretary of State for Justice v
KC [2015] UKUT 376 (AAC) at [124] to [132] and in
my
view,
for the reasons given there,
it is relevant to consider whether there was a real choice.
124. So in determining whether there is an Article 5 detention (and so the combination of its objective and subjective elements) the authorities show that factors relating to the circumstances in which a consent that is relied on to found the result that the person has foregone the Article 5 right to liberty, and so it is not engaged or infringed, are relevant and can lead to the conclusion that:
i) there is not an Article 5 detention, or
ii) there is an Article 5
detention because in all the circumstances the concrete situation on the ground
is mandatory
as opposed to contractual or consensual (the language used in the De
Wilde case).
125
But
this approach to the subjective and objective elements does not mean
that all
Article 5 detentions are compulsory in the sense that an analysis of all the
relevant circumstances shows that they are based (or are effectively based) on
a unilateral and imposed decision of the person effecting the detention.
Rather, it confirms that:
i)
the
existence or non-existence of an effective consent and, more
generally how the
concrete situation on the ground was created, are or can be relevant, and
ii) as with other factors that are relevant to whether there is a deprivation of liberty for the purposes of Article 5, and the fulfilment of the requirements of Articles 5.1 and 5.4, the impact of these factors and so the circumstances relating to compliance and/or an inability to give a consent is fact and circumstance sensitive (see Storck at [71]).
126
This
approach in the authorities to determining whether there is breach of a
person’s Article 5 rights reflects the list of the exceptions in Article 5.1
because they cover a range of situations some of which, as a matter
of the
ordinary use of language, will always lack any consensual element and so
inevitably fall within the primary
meaning
of the word “compulsory” (e.g. the
exception in 5.1(a)). Whereas, others could be based on a decision
made
by or
on behalf of or to promote the best interests of the relevant person (e.g. the
exception in 5.1(e)).
54
The Secretary of
State submitted that the consent must
be sufficiently free and informed citing
M
v
Ukraine [2012] ECHR 732 at paragraphs 75 to 79 and Re T (Adult:
Refusal of Treatment) [1993] Fam 95 at 113 E/G. As appears from
my
citation from the LF case I agree and those two cases could be added at
paragraph 123 (iii) thereof.
55 At the heart of the Secretary of State’s argument are the propositions that:
i) a restricted patient is not free to leave and does not have a free choice to accept or refuse a conditional discharge because his detention remains founded on the original hospital order, and
ii)
agreement to a
deprivation of liberty based not on the merits
of the proposed placement but on
a threat of compulsory confinement is not a
valid
consent.
56 The first proposition gives rise the questions: “Free to leave where?” and “Why is the person not free to leave that place?”
57 The hospital order (and the restriction order) do not expressly authorise detention other than in a hospital.
58
I set out my
conclusion on what constitutes a conditional discharge in paragraphs 91 and 92
of
my
decision in the KC case where I said:
91 In
my
view,
if and when a conditional discharge is to circumstances in which the
objective element of a deprivation of liberty would exist the “discharge” is
from a situation in which the person is detained or deprived of their liberty
under provisions of the
MHA
(and so usually in hospital) to one where he is so
deprived of his liberty in different circumstances arising from the regime put
in place on his conditional discharge and thus its conditions (and so usually
not in a hospital).
92 So here the
“discharge” is from KC’s detention in a hospital pursuant to ss. 37 and 41 of
the MHA
to a lawful or unlawful deprivation of liberty created by the
conditions at the Placement which is not a hospital.
So
in my
view
on a conditional discharge of a restricted patient the hospital
order remains in the background so that on recall to hospital it founds the
imposition or authorisation of a detention in a hospital.
59
It follows that I do
not accept that a detention (deprivation of liberty) outside a hospital remains
founded on the hospital order. Indeed, if it was and so detention outside a hospital
during a conditional discharge was so founded it would provide at least a
starting point for an argument that the lawfulness of that deprivation of
liberty outside hospital can be founded on the MHA.
60
Further, in my
view,
an assertion that detention outside hospital is founded on the hospital order
does not fit with either:
i)
my
conclusion on the
ratio of the RB case or the Secretary of State’s argument in the KC case
on what that ratio is, namely that the
MHA
(including the power therein to
make
a hospital order) does not provide a statutory basis for imposing or
authorising a detention or a deprivation of liberty in a placement outside a
hospital, or
ii)
the Secretary of
State’s submission in the KC case, which I did not fully accept (see
paragraphs 90 to 92 of my
decision in that case) that a conditional discharge
is a discharge from detention under the
MHA
(which accords with his argument on
the ratio of the RB case).
61
So, in my
view,
in
line with his second proposition the Secretary of State’s argument has to be
founded on the power of recall to detention in a hospital that on such recall
would be imposed and so authorised by the provisions of the
MHA.
It is that
power that gives rise to the prospect or threat relied on by the Secretary of
State to found the conclusion that any choice by a capacitous patient to be
detained outside hospital is not free or sufficiently free and so does not
provide a
valid
consent to an objectively assessed deprivation of liberty
outside a hospital.
62
But, as pointed out
in paragraph 52 of my
decision in the KC case, that power of recall is
not directly linked to a breach of a condition and as I said in paragraphs 53
and 54 of that decision:
53 This
links the power of recall to the underlying purposes of the MHA
(i.e. treatment
not detention or punishment). However, in a number of cases breach of the
conditions (and so the statutory duty)
may
well be powerful evidence of, for
example, relapse and the need for a recall.
54 It is also the case that the existence of the power of recall is a powerful incentive for the patient to comply with conditions if he or she appreciates the risk that non-compliance will be likely to lead to a consideration of whether the power of recall should be exercised and so to its exercise.
63
The points made
in paragraphs
56 to 62 above, show that conditions relating to a placement outside a hospital
which when implemented will create on an objective assessment a deprivation of
liberty:
i)
cannot be lawfully
imposed on a restricted patient under the MHA,
ii)
can be part of the terms
and conditions of a conditional discharge that is, or which a restricted
patient can reasonably conclude is, in his best interests because it is the
least restrictive option and one that enables him to demonstrate that (a) it is
no longer necessary for him to be in hospital or liable to recall to hospital
to receive treatment for a mental
disorder for the purposes set out in the
MHA
and so that (b) he should be given an absolute discharge,
iii)
can promote the
underlying purposes of the MHA
and a conditional discharge (see paragraphs 85
to 89 of
my
decision in the KC case), and
iv)
can only be made
a
lawful option or alternative for a capacitous restricted patient if he gives a
valid
consent to it.
64 The factors set out in the last paragraph show that:
i)
a capacitous
restricted patient (like the Court of Protection or a DOLS decision maker
in
respect of a restricted patient who lacks the relevant capacity) has a real
choice founded on the advantages and disadvantages and so the
merits
of the
proposed placement assessed through the eyes of the restricted patient to consent
to such conditions, and that
ii)
any such decision is
most
unlikely to be driven by a threat that he
might
be recalled to hospital.
This
is because he is not being presented with a choice between two alternatives
that can be imposed on him and the driver for his consent would be a move
from
hospital (albeit one that
might
end with an imposed recall) to a placement
outside hospital which he has concluded is in his best interests because, for
example, in his
view
that would be a step towards his absolute discharge into
the community.
65
For the reasons
given above and as set out in the KC case I adhere to the view
I
expressed obiter in the KC case that, for the purposes of Article 5, a
restricted patient with the capacity to do so can give a
valid
and effective
consent to conditions of a conditional discharge that when implemented will, on
an objective assessment, create a deprivation of liberty. And, in
my
view,
by
giving that consent the restricted patient will:
i) forego his Article 5 right not to be deprived of his liberty and so the benefit of that Convention right,
ii) provide a lawful concrete situation on the ground, and so
iii)
provide an available
alternative or option for the MHA
decision
maker.
66 In determining whether to direct a conditional discharge founded on the alternative created by such a consent the FTT will have to consider whether in all the circumstances:
i)
the consent is
freely given and so is based on a real choice founded on an exercise of the
patient’s liberty to make
his own choices and so his autonomy, and
ii)
the situation on the
ground that it will create satisfies the test for a conditional discharge set
by s. 73 of the MCA.
67
That second question
referred to in the last paragraph engages a comparison of the available options
and their effects and so the issue I raised in paragraph 137 of my
decision the
KC case concerning the withdrawal of the consent. As I have said this
issue was not pursued in the arguments before
me.
68
It also raises
questions relating to whether the alternative is sufficiently defined and the
advantages and disadvantages of the rival alternatives (see by analogy KD v
A Borough Council, the Department of Health & Others [2015] UKUT 251 (AAC) in particular at paragraph 147 et seq).
Article 8 and discrimination
69
On my
approach and
conclusion this does not arise.
70
Accordingly I do not
need to address the arguments advanced on justification or the argument of the
Secretary of State referred to in paragraph 45 above. The point that the Upper
Tribunal does not have jurisdiction to make
a declaration of incompatibility provides
another reason why I need not pursue the questions raised under this heading on
the alternative basis that
my
conclusion on the ratio of the RB case is
wrong. This lack of jurisdiction of the Upper Tribunal is however a factor
that the parties to any tribunal case or any appeal from such a case
might
want
to consider.
Dated 23 November 2015
Signed on the original Mr
Justice Charles
President of the UT(AAC)