(1) Cumbria, Northumberland and Tyne & Wear NHS Foundation Trust, (2) Secretary of State for Justice v EG
| Jurisdiction | England & Wales |
| Judge | Lieven J |
| Judgment Date | 09 November 2021 |
| Neutral Citation | [2021] EWHC 2990 (Fam) |
| Court | Family Division |
| Docket Number | HM/1606/2020; and High Court, Family Division, FD20F00078 |
Neutral Citation: [2021] EWHC 2990 (Fam)
Judge: Lieven J
HM/1606/2020; and High Court, Family Division, FD20F00078
Court and Reference: Upper Tribunal (AAC),
Facts: EG has a pervasive developmental disorder, an emotionally unstable personality disorder with features of autism, and paedophilia. In 1994, following various sexual assaults on girls, he was made subject to hospital and restriction orders under ss37/41 Mental Health Act 1983. In 2014, he was conditionally discharged to a care setting in a remote area and made subject to extensive conditions, including close supervision when out in the community, being sighted by staff regularly (and constantly when mixing with other residents) and a plan for searching should he disappear. He was supervised by a community psychiatrist and had not received any treatment in hospital since discharge. In 2018, the Supreme Court determined that it was not permissible for the conditions of a conditional discharge to amount to a deprivation of liberty: see Secretary of State for Justice v MM[2018] UKSC 60, [2019] AC 712, [2018] MHLR 392. In June 2020, the Secretary of State concluded that the condition of close supervision in the community could not safely be removed, but was unlawful in light of MM; accordingly, EG was recalled to hospital but simultaneously granted leave under s17 of the 1983 Act with conditions similar to those of the conditional discharge (and so did not spend time in hospital); his responsible clinician became one based at the hospital from which he had been conditionally discharged and to which he was recalled. In August 2020, a Tribunal considering the case under a referral triggered by the recall granted EG a conditional discharge with conditions including residence at the care home and compliance with supervision and care and risk management plans; it found that EG's mental disorder did not require liability to detention but that liability to recall was necessary. It relied on the lack of any in-patient treatment since 2014 and the view of the treating psychiatrist that a return to hospital would cause EG's behaviour to deteriorate and his risk to increase, concluding that it was necessary for there to be a significant part of treatment in hospital for ongoing detention to be lawful. The Tribunal suspended its decision to allow an appeal to the Upper Tribunal. In addition, the Trust sought a declaration from the High Court under its inherent jurisdiction that it was lawful to detain EG so as to permit elements of his care plan that amounted to a deprivation of liberty.
The appeal to the Upper Tribunal and the application to the High Court were heard together. The issues arising were whether it was possible to construe s72 Mental Health Act 1983, either as a matter of statutory construction alone or with assistance from s3 Human Rights Act 1998, to allow the detention of a restricted patient in a community setting pursuant to s17(3) of the 1983 Act; and whether a conditionally discharged patient who has capacity to decide where to live and so is outside the Mental Capacity Act 2005 can be deprived of liberty pursuant to the High Court's inherent jurisdiction.
Appearances: V Butler-Cole QC (instructed by DAC Beachcroft LLP) for the Trust; F Paterson with J Strachan QC and N Kohn following (instructed by Government Legal Department) for the Secretary of State; P Mant and S Garlick (instructed by Hadaway & Hadaway) for EG.
Judgment: (Delivered in private but with leave to report with anonymity maintained.)
1. EG is a 49 year old man. He has diagnoses of pervasive developmental disorder (but not a learning disability), emotionally unstable personality disorder with some features on the autistic spectrum, and paedophilia. The issue in the case is whether he can lawfully remain in the community, rather than in hospital, but be deprived of his liberty in the community. This issue arises as a consequence of the Supreme Court decision in Secretary of State for Justice v MM[2018] UKSC 60, [2019] AC 712, [2018] MHLR 392, where the Court found that a restricted patient could not be discharged from hospital under the Mental Health Act 1983 (‘MHA’) on conditions that amounted to a deprivation of liberty. If EG cannot be deprived of his liberty, the Trust has indicated that it would recommend to the Secretary of State that EG should be recalled to hospital (in real terms rather than the theoretical recall which is currently in place) because if EG is to remain in the community it needs to be with the clear legal authority to deprive him of his liberty. The Secretary of State has made clear he would follow this recommendation.
2. The Trust was represented before me by Ms Butler-Cole QC, the Secretary of State by Ms Paterson, and EG by Mr Mant. I am very grateful to them all for their clear submissions in a difficult case. After the arguments concluded, the Supreme Court gave judgment in Re T (A Child)[2021] UKSC 35 concerning the scope of the inherent jurisdiction to deprive a child of his/her liberty. I gave the parties the opportunity to make further written submissions on the impact of Re T on the arguments in this case, and I refer to those submissions below.
3. In this case I sat both as the Upper Tribunal (Administrative Chamber) (‘Upper Tribunal’) to hear the appeal from the First Tier Tribunal (Mental Health) (‘FTT’) decision dated 31 August 2020, and as the Family Division of the High Court to hear an application under Part 8 for the Court to use its inherent jurisdiction to deprive EG of his liberty if the appeal from the FTT was refused and EG therefore could not be detained under the MHA.
4. The issues in the case are:
(a) Whether s72 MHA can be construed to allow the detention of a restricted patient in a community setting pursuant to s17(3) MHA where that person has not resided in, or been treated by, a hospital for a considerable period of time. That issue itself is in 2 parts:
(i) Whether such a construction can be arrived at under a purely domestic statutory interpretation of the MHA alone;
(ii) Whether reliance on s3 of the Human Rights Act 1998 (‘HRA’) can allow such a construction.
(b) If the answer to (a) is no – then whether the patient, assuming he has capacity and therefore does not fall within the jurisdiction of the Court of Protection, can be subject to a conditional discharge and deprived of his liberty pursuant to the inherent jurisdiction of the High Court.
5. It can be seen from this summary that if the Court concludes that a domestic interpretation of s72 does not allow EG to be deprived of his liberty in the community pursuant to s17(3), then the Court has 2 alternatives; either to rely on s3 HRA, or to use the inherent jurisdiction to deprive EG of his liberty. If neither of these routes are possible, then the Claimant seeks a declaration of incompatibility under the HRA. For the reasons that I set out below, I consider it more legally appropriate in this case to rely on s3 HRA than upon the inherent jurisdiction.
6. EG was first admitted to hospital in 1987 at the age of 16 and then had subsequent short admissions, including one following an assault on his GP who had been called to the family home because of his disturbed and aggressive behaviour. EG has a number of convictions for sexual assaults on girls, including on his sister. He was made the subject of an order pursuant to s37/41 MHA on 31 January 1994 and has therefore been a restricted mental health patient for approaching 30 years. Between 1994 and 2014 he was detained at Northgate Hospital, a medium secure unit. During that time in hospital EG was aggressive and potentially violent on a number of occasions. His response to treatment and his progress in rehabilitation were, for lengthy periods, poor. There were a number of efforts made to move him to less secure placements, all of which failed, in part because of his lack of engagement with clinical teams, aggression and self-harm.
7. He was conditionally discharged by the FTT on 1 April 2014 to The Care Home situated in a remote rural area. The conditions included that he must live at The Care Home, which would undoubtedly amount to a deprivation of his liberty within the Storck tests (Storck v Germany, appn 61603/00, 16 June 2005, [2005] MHLR 211, (2006) 43 EHRR 6). He has never been recalled to hospital since being conditionally discharged (save for his technical recall following the MM decision). There was an incident in October 2019 when he threatened to rape a member of staff and he was given a warning, but since that time his behaviour has improved.
8. Since being at The Care Home, efforts have been made to move EG to a less restrictive placement akin to supported living. These efforts have been unsuccessful, largely due to EG's own anxiety about trying to manage without a high level of support and supervision. EG is aware that he poses a risk of harm to others and that he needs support to help him manage his behaviour. He is reported to have an exaggerated perception of risk to himself when in the community as a result of his previous offending behaviour.
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