This blog is my contribution to airing issues in those areas in which I have usefully overlapping expertise: Autism, Law, Education, Social Care, Health and Criminal Justice.
Some of my Care Act focussed posts are also available on my guest blog at Schwehr on Care
But here I also blog about broader issues.
Feel free to contact me if you would like to discuss any of the issues I raise further or if you have questions or topics you would like to see me post about here.
MM & PJ in the Supreme Court 
Keywords: Mental Health Act, Conditional Discharge, CTOs, Deprivation of Liberty
These cases both address aspects of the interaction between the Mental Health Act 1983 (MHA) and Article 5 of the European Convention on Human Rights (ECHR) via the Human Rights Act 1998.
Secretary of State for Justice v MM 
A restricted patient cannot be discharged by either a Mental Health Tribunal or the Secretary of State for Justice on the basis of conditions which amount to a deprivation of liberty.
This case concerned MM, a 35-year-old man with diagnoses of autistic spectrum disorder, mild learning disabilities and pathological fire setting. Following a conviction for a serious offence of arson in 2001, he had been made the subject of a hospital order and a restriction order (under s.37 & 41 MHA). He was considered to pose significant ongoing risks of fire setting and sexually inappropriate behaviour. He had applied for conditional discharge. It was envisaged that any suitable plan for his discharge would involve requiring him to live at a particular place, which he would not be free to leave (in the sense of moving to a different address), and that he would not be allowed out without an escort. This level of restriction, supervision and monitoring would amount to a deprivation of liberty within the meaning of article 5 of the ECHR. It was agreed that the patient had capacity to consent to being deprived of his liberty and he was willing to consent to restrictive conditions in order to be able to leave hospital.
Under the MHA, a patient with a restriction order can only be discharged either: with the approval of the Secretary of State for Justice (s.42(2) & (3) MHA 1983) or by the First Tier Tribunal (Mental Health) (s.73(1) & (2) MHA 1983). In both cases a patient can be discharged absolutely (which would mean a complete end to all restrictions) or conditionally. The MHA does not specify the kinds of condition which can be imposed and provides no sanctions for their breach, other than the possibility of recall to hospital. However, the purpose of conditional discharge is to provide a step in a patient’s progression from the more institutional setting of a hospital to a less institutional setting in the community. Transition through progressively less secure hospital conditions before discharge into the community is common and conditional discharge forms part of that process.
So, the issue was whether conditions imposed via conditional discharge by a tribunal under the MHA could provide a lawful basis for the patient to be deprived of their liberty where the patient was willing to consent and had capacity to do so.
It was argued that the fundamental purpose of the MHA is to rehabilitate patients and that this purpose would be frustrated if it were not possible for patients to step down to lower levels of supervision in the community and the result would be patients remaining in hospital for longer. Lady Hale, giving the majority judgement, recognised the practical logic of this argument. However, she took the view that it did not necessarily follow that the MHA actually provided sufficient legal basis for such a power.
It was argued that there was nothing in either the MHA or Article 5 which actually prevented the imposition of such a condition. The main textual argument in favour of a power to impose such a condition was that a conditionally discharged patient remains “liable to be detained” within the meaning of the MHA. However, Lady Hale’s analysis identified the lack of any general principle of “least restrictive alternative” within Article 5 or related case law. She also concluded that the court could not ‘read into’ the MHA a power to impose deprivation of liberty via conditional discharge because of the principle of legality i.e. that only explicit provisions in Acts of Parliament could render lawful substantial inference with fundamental rights. Additionally, Lady Hale’s analysis of powers of detention contained in the MHA identified that, both for patients detained in hospital and those detained (temporarily) in a place of safety, the Act provided explicit powers to convey, detain and retake the patient. Therefore, if the MHA had intended to create a power for a patient to be detained as a condition of discharge, it was inconceivable that the Act would not have provided similar explicit powers relating to that form of detention. Similarly, she reasoned, the less frequent rights to apply to tribunal provided for conditionally discharged patients, as compared to ‘detained’ patients in hospital, indicated that it was not thought that such patients required the same level of protection as those deprived of their liberty and, therefore, could not have been intended to be subject to the same level of interference with their fundamental rights.
Whilst consent from a patient with capacity, did generally provide a valid legal basis for depriving a person of their liberty, it was clear from ECtHR cases on Article 5, that (a) consent can be withdrawn at any time; and (b) consent given in circumstances where the choice was between greater and lesser forms of deprivation of liberty may not be valid consent at all. The consequence of (a) was that the patient could withdraw his consent to the deprivation at any time and demand to be released and was not bound by any contract (or anything else) not to do so. Therefore, consent could not be a valid basis for ongoing deprivation of liberty under a conditional discharge. There would need to be a power to impose the deprivation on the patient regardless of consent.
It was also argued that, if it were not possible for a capacitated patient to be conditionally discharged on the basis of their consent to deprivation of liberty, this would constitute unjustified discrimination on the basis that an incapacitated patient’s deprivation of liberty could potentially be authorised by the Court of Protection, enabling conditional discharge in their case. Lady Hale declined to engage in speculation as to whether conditional discharge of an incapacited patient in such circumstances would be possible, concluding that the issue would make no difference to the outcome of the current case.
In Lady Hale’s words:
“The outcome of this case depends upon whether it is possible to read the words “discharge … subject to conditions” in section 42(2) (dealing with the Secretary of State’s powers) and “conditional discharge” in section 73(2) (dealing with the FtT’s powers) as including the power to impose conditions which amount to a deprivation of liberty within the meaning of article 5.” [para. 27].
Giving the majority judgement, she concluded that it is not. Therefore, at least until parliament amends or reforms the Mental Health Act, it is not possible for either the FtT or the Secretary of State for Justice to conditionally discharge a patient who has capacity to consent imposing conditions which amount to an objective deprivation of liberty (i.e. continuous supervision and control and not free to leave).
Lord Hughes, in the sole dissenting opinion, argued that authority for the deprivation of liberty was to be found in the original combination of orders imposed by a court. In his view the situation was manifestly different to that of a free citizen being deprived of their liberty and, therefore, the arguments of legality and the practical construction of the MHA did not outweigh the practical necessity of such a power to the purpose of conditional discharge.
Full judgement at: https://www.supremecourt.uk/cases/docs/uksc-2017-0212-judgment.pdf
Welsh Ministers v PJ 
A Community Treatment Order (CTO) cannot impose conditions which amount to a deprivation of liberty.
It is important to note that, despite the case name, this judgement applies to England as well as Wales because the same legislation governs CTOs in both jurisdictions (i.e. the MHA).
This case concerned PJ, a 47-year-old man with mild to borderline learning disability and autistic spectrum disorder who had a history of violent and sexual offending. Following convictions for assault and threatening behaviour in 1999, he received a Hospital Order (although not a restriction order) from which he was discharged (although he remained in hospital as a voluntary patient). He had been redetained under s.3 MHA in 2009 and subsequently discharged to a care home on a Community Treatment Order (CTO) in 2011.
At a tribunal hearing in May 2014, the case put on behalf of PJ was that the arrangements under the CTO amounted to an unlawful deprivation of liberty and he should therefore be discharged from it. The resulting series of appeals culminated in the Court of Appeal ruling that it was lawful for a Responsible Clinician (RC) to impose conditions in a CTO which had the effect of depriving a person of their liberty, provided this was a lower level of restriction than that to which they had been subject in hospital.
As many have pointed out since the Court of Appeal ruling, and as Lady Hale set out in this judgement, the current edition of the Mental Health Act Code of Practice (drawn up under s.118 MHA and revised in 2015) states quite clearly that “The conditions [included in a CTO] must not deprive the patient of their liberty” (para 29.31).
It was argued at this hearing, on behalf of the Welsh Ministers, that, because the conditions in a CTO cannot be enforced, they cannot amount to a deprivation of liberty and it is therefore permissible to impose them. In other words, because a CTO does not provide any powers: to detain the person; to impose medical treatment (widely defined) without consent; to impose sanctions for failing to comply with the care plan, other than the limited power of recall; or to recapture an absconder; it is therefore lawful to impose these conditions, because they do not amount to a deprivation of liberty.
Lady Hale, giving the sole judgement of the Supreme Court, rejected this argument. Whilst she accepted the limitations of the statutory powers contained in a CTO, in her view it did not follow that a person was not in fact deprived of their liberty as a result of the conditions to which they were subject. Determining deprivation of liberty required looking at the concrete situation of the person concerned. In this case, despite occasional short periods unsupervised, the overall circumstances of PJ’s care amounted to continuous supervision and control and he was not free to leave. Therefore, he was deprived of his liberty by the conditions in his CTO. The question was whether the Responsible Clinician (RC) had the power, under the MHA, to impose conditions which had that effect.
It was common ground that s.17B(2) of the MHA contains no explicit power to impose conditions in a CTO which have the effect of depriving a community patient of his liberty. The Court of Appeal had nevertheless held that such a power was a necessary implication from the purpose of a CTO which was the gradual integration of the patient into the community. Therefore, they had reasoned, a CTO must be able to provide for a lesser restriction than detention in hospital, even if those restrictions amounted to an objective deprivation of liberty. Lady Hale took the view that this was putting the “cart before the horse” [para. 24]. Again drawing on the principle of legality, she considered that the Court of Appeal had erred in ‘reading in’, from the purpose of a CTO, a power to interfere with a fundamental right, without an explicit statement of such a power in the MHA itself. She concluded: “The very general words in section 17B(2) cannot authorise the RC to impose conditions which deprive a patient of the fundamental right to liberty.” [para. 24]
Lady Hale also considered whether such a power was actually a ‘necessary implication’ of the purpose of CTOs. She considered that ‘integration of the patient into the community’ was not necessarily or invariably the purpose of a CTO. Making further reference to the Code of Practice, she identified additional and alternative purposes including: providing a way to help prevent relapse and any resulting harm to the patient or to others; helping patients to maintain stable mental health outside hospital; and promoting recovery. As in the case of MM above, Lady Hale drew on comparison between the MHA sections providing for CTOs with the specific and detailed nature of other MHA provisions which explicitly intended to provide for deprivation of liberty (such as those providing for detention and treatment in hospital).
For these reasons, it was held that there is no power to impose conditions in a CTO which have the effect of depriving a patient of his liberty.
Having concluded that CTOs cannot be used to deprive a person of their liberty, a subsidiary question arose as to the powers of the tribunal if it were to find, in a given case, that a community patient was being deprived of their liberty. However, Lady Hale considered the issue was more theoretical than real since, now that RC’s would know that a CTO could not be used to deprive a person of their liberty, they would not impose conditions which would do so. In the event such a situation did arise, the remedy would be either habeas corpus or judicial review.
Full judgement at:https://www.supremecourt.uk/cases/docs/uksc-2018-0037-judgment.pdf
 A patient can only be recalled, however, if the statutory grounds for detention are met (that he is 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 that it is necessary for the health or safety of the patient or for the protection of other persons that he should continue to receive such treatment; or that appropriate medical treatment is available for him) and not simply because of breach of a condition.
 Storck in relation to (a); Buzadji v Moldova  in relation to (b).
 The implication is that any resulting discrimination would lead to a declaration of incompatibility under the Human Rights Act in relation to primary legislation: a situation which could be remedied only by parliament amending legislation and not by a court ‘reading into’ primary legislation because of parliamentary sovereignty.
 In the sense that, although compliance or otherwise with the conditions would inform decision making about whether to recall the patient to hospital, failure to comply is not by itself sufficient for recall, nor does it enable the imposition of any sanction.
 An argument that, if it had been successful, would also have applied to Conditional Discharge.
Meanwhile under the radar ...
While the mainstream media are distracted by Brexit, the government is continuing to rush the Mental Capacity (Amendment) Bill through parliament. The Bill had its second reading in the Commons yesterday.
The good news is that there was a brief debate in which Barbara Keeley (the Shadow minister) gave a well informed speech setting out the Bill's serious flaws in detail and calling for the government to rethink or at least pause the legislative process to allow proper consultation and revision of the Bill.
The bad news is that the government pressed on regardless and the Labour amendment seeking a delay was defeated. The Bill has now progressed to the committee stage.
During the Bill's progress through the Lords, it has been amended in several key respects. The current state of the Bill is as follows:
- The new name - Liberty Protection Safeguards
- NHS responsibility for authorising deprivations of liberty in NHS-funded care
- Requires that the arrangements are necessary and proportionate to the risk to the person themselves
- Now extends to 16 & 17 year olds
- Now uses “mental disorder” rather than “unsound mind”
- Now states explicitly that the adult must be consulted with and their wishes and feelings considered, although it is only a “have regard” duty (which falls a long way short of UNCRPD compliance)
- Now enables Local Authorities to decide whether they or Care Home Managers arrange the assessments and statement, rather than it automatically being Care Home managers for care in Care Homes
- Now says assessments can’t be carried out by someone with a financial conflict of interest
- IMCA decision now made by the LA rather than the Care Home Manager but still on a 'best interests' basis, not a right
- Possibly slightly extended requirements for AMCP to carry out pre-authorisation review e.g. Contact restrictions, covert medication, family objections
Serious concerns remain
- Proposed Role of care home managers is still an “inherent conflict of interest” (Care England) and conflict of interest for commissioning bodies is not addressed at all
- Although local authoritoes can now decide whether to allow care home managers to arrange the assessments and statement, that decision is likely to be affected in the real world by lack of resources because no funding has been made available and shifting the responsibility to care home managers also shifts the cost burden. Local authorities may not have much of a choice.
- Conflict of interest largely left to regulations (which we have not yet seen!). The 'prohibition' on conflict of interest is also a negative rather than positive duty and there is no enforcement mechanism. Essentialy this makes it useless in practice because it means it would fall to the adult to challenge via Judicial Review.
- Pre-authorisation review can still be just a paper exercise not requiring a visit to the setting or actually meeting the adult
- IMCA duty has “appropriate person” get out clause – see Care Act advocacy for how well (or otherwise!) this works in practice
- The promised statutory definition of “Deprivation of Liberty” has not yet made public. There has to be a considerable risk that the government will propose a definition that will move backwards in terms of disability rights from the Cheshire West position
- The fundamental risk remains that, for many people, there will be no meaningful independent scrutiny of their human rights
- The Bill still lacks crucial aspects of the original Commission proposals. In particular it lacks:
- amendment to the MCA requiring that best interests decisions "must give particular weight to any wishes or feelings ascertained"
- restricting the s.5 defence for professionals around important decisions
- power to make regulations introducing supported decision making
- civil cause of action for unlawful deprivation of liberty against private care providers
- The Bill offers nothing on the highly problematic MHA/MCA interface and the government will not wait to coordinate it properly with the proposed reform of the Mental Health Act
- Finally, the Bill still fails to reform MCA to protect Article 8 rights
Overall, despite some improvements as a result of amendments, the Bill remains fundamentally flawed and provides completely inadequate protection for human rights. To quote Barbara Keeley MP:
"Although the deprivation of liberty safeguards need reform, and I agree that they do, the Bill deals with none of the challenges that have been outlined and creates some new problems that cannot be solved simply with further amendments. I am afraid we feel that the Government cannot be relied on to make the necessary changes during the remaining legislative stages given the resistance that they showed to making important changes in the House of Lords. On the contrary, the transformative spirit of the Law Commission’s draft Bill has been squashed, and the measures that would place the best interests of the cared-for person at the heart of the new system have been reduced.
The Government should have enacted the Law Commission’s proposals in full through the 15-clause Bill that was drafted, but instead we have this five-clause Bill. Why did they not simply bring forward the Law Commission’s proposals? The inescapable conclusion that we have come to from reading the Bill is that the Government are more interested in cost saving than in the best interests of cared-for people."
- The government appears (at least in the press release) to have adopted the Law Commission's proposed titling of the reformed system as the "Liberty Protection Safeguards". Names matter. This is to be welcomed because it highlights the positive protection of rights, rather than perpetuating the current confusion. However, see the caveats below about whether the system is worthy of the name!
- Responsibility for authorising deprivations of liberty in hospital or CHC funded will shift to the NHS (as proposed by the Law Commission). This is to be welcomed because it should lead to the NHS engaging more seriously and effectively with issues of capacity, necessity and proportionality when arranging care which involves significant restrictions
- The conditions for authorisation include that the arrangements are necessary and proportionate
- The major concern is that the Bill delegates almost all the responsibility to care home managers rather than the responsible body where (as in the majority of cases) the care is mainly in a care home. This is seriously worrying given that the vast majority of care home managers are employees of private companies (rather than public bodies) which may well have conflicting and competing interests to those of the adults whose DoL is being authorised. Their decisions may be open to challenge on Human Rights grounds (see s.73 Care Act), but this is wholly inadequate protection.
In particular the Bill allows care home managers to:
- provide all the information to the responsible body, including capacity and mental health assessments
- decide who they think appears "to have appropriate experience" to determine whether the arrangements are necessary and proportionate
- decide whether they think the person is or isn’t objecting (and therefore whether they should be referred to an Approved Mental Capacity Professional (AMCP) - an extension of the BIA role
- consult with all the interested parties (meaning that family members may not be heard by anyone else)
- review the authorisation
- decide whether the person is entitled to an Independent Mental Capacity Advocate (IMCA)
- choose the “appropriate person” (equivalent of the current Relevant Person's Representative role - i.e. a key protection for the adults rights).
This essentially leaves adults in care homes at serious risk of their being no meaningful independent scrutiny of whether care is being provided in a way which is consistent with their Human Rights.
- The Bill ignores and fails to enact very important aspects of the Law Commission proposals, particularly:
- the proposed amendment to S.4 MCA to require that best interests decisions "must give particular weight to any wishes or feelings ascertained" (which would have brought the MCA a step closer to UNCRPD compliance)
- restricting the s.5 defence for professionals around important decisions to provide additional safeguards for Article 8 rights and ensure that steps are taken to support decision making and properly consult the person and their family
- the proposed regulation making power to enable supported decision making (a vital step towards UNCRPD compliance)
- the proposed right to bring civil proceedings for unlawful deprivation of liberty against private care providers (a vital protection against the potential conflict of interests between private care providers and disabled adults - which would be even more vital if huge power is given to care home managers as the Bill proposes)
- The proposed safeguards apply only from 18 years upwards. This maintains the status quo under DOLS and ignores the Law Commission's recommendation that the safeguards apply from age 16 (in line with the MCA). This is particularly concerning given the recent and highly problematic case law which essentially allows young people between 16 and 18 years of age to be deprived of liberty on the basis of parental consent (with the resulting divergence in applicability between non-disabled and disabled young people given that the latter are more likely to lack Gillick competence as a result of disability).
- Although necessity and proportionality are required as a condition of authorisation the Bill does not specify in relation to what purpose of detention necessity and proportionality are to be considered (dropping the Law Commission's link with risk of harm. Given that (in 2(1)(a) the arrangements are "for the purpose of enabling the care and treatment of a person", this has the potential to allow Deprivation of Liberty to be authorised on other grounds. It is hard not to envisage the risk of slippage here into considerations of organisational and reputational risk and/or cost, convenience and efficiency of care delivery weighing on the assessment of necessity and proportionality.
- The Bill does not offer a statutory definition of Deprivation of Liberty despite strong support for this from the (probably too recent) Select Committee recommendation in favour of such a definition
- The Bill does not change the status quo on the dividing lines between the Mental Health Act and the MCA. Presumably, in line with the Government's response to the Law Commission proposals
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