KD HM 2224 2014
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Charles |
| Judgment Date | 18 May 2015 |
| Neutral Citation | 2015 UKUT 251 AAC |
| Subject Matter | Mental health |
| Respondent | A Borough Council, the Department of Health and Others |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HM 2224 2014 |
| Appellant | KD |
[2015] AACR 41
(KD v A Borough Council, the Department of Health and others
[2015] UKUT 251 (AAC))
Mr Justice Charles CP HM/2224/2014
18 May 2015
Mental health – discharge from guardianship – approach to be taken by First-tier Tribunal
The appellant’s short-term memory loss left him unable to manage his daily life. He was detained in hospital under the Mental Health Act 1983 before being made the subject of guardianship and transferred to a residential care home. The appellant applied for discharge of the guardianship arguing that it was unnecessary, less restrictive arrangements being available under the Mental Capacity Act 2005, and too restrictive as he was subject to 24-hour supervision and support. The First-tier Tribunal (F-tT) rejected the application, deciding that guardianship was necessary and represented the least restrictive option consistent with safeguarding the appellant’s welfare. The appellant appealed against that decision. Among the issues before the Upper Tribunal (UT) was whether the appellant was subject to a deprivation of his liberty which, as part of the least restrictive available option, could and should be authorised under the Mental Capacity Act 2005 and its Deprivation of Liberty Safeguards (DOLS) standard authorisation following a discharge of the guardianship.
Held, ruling that the tribunal had erred in law, but not setting aside its decision, that:
- the 2005 Act did not confer on a Guardian an express power equivalent to an injunction to prevent a patient leaving his place of residence or to dictate the terms of a care plan. However, the combination of the express powers conferred on the Guardian and section 18(3) of the 1983 Act had the following practical effects: (a) in choosing where the patient was to live, the Guardian would have regard to, and might require a commitment from the provider of the placement in respect of, the terms of the care plan and its restrictions; (b) if the care plan were changed, the Guardian could require the patient to live elsewhere; (c) the patient was required to live at a certain place under a care regime; (d) by requiring the patient to live at a given place a Guardian was at least indirectly requiring him to live there under those conditions and restrictions, albeit that he could not impose them on the provider of the care or treatment; it was the care plan not the guardianship that was the basis of a deprivation of liberty: NL v Hampshire County Council [2014] UKUT 475 (AAC); (e) the power to return the patient to his place of residence had the effect of a requirement or an injunction preventing him from leaving. That power was a more readily available, effective and sensible means of enforcing the result that the patient lived at a certain place than an injunction, the enforcement of which was problematic (paragraphs 30 to 31)
- engaging the jurisdiction of the F-tT to discharge a guardianship under section 72 of the 1983 Act did not require a move from a deprivation of liberty to a restriction of liberty or less. The Guardian’s powers were to the exclusion of any other person; that meant that the Court of Protection could not override those powers: C v Blackburn with Darwen Borough Council [2011] EWHC 3321 (COP). Therefore the Court of Protection could only consider a care plan at a placement where the Guardian required the person to live and so any authorisation of a deprivation of liberty given by the court could only relate to that placement (paragraphs 44 to 47)
- the F-tT had no jurisdiction to authorise or otherwise render lawful a deprivation of a person’s liberty during and after discharge of his guardianship. In exercising its statutory discretion it had to take account of practically available, and hence lawful, options. It should not discharge a guardianship if the consequence of doing so would be to bring about an unlawful deprivation of liberty. The UT considered the appropriate approach to applications such as the appellant’s and provided detailed guidance for F-tTs (paragraphs 55 to 73)
- it was not clear what lawful alternative arrangements had been available for the appellant and therefore an adjournment of the F-tT would have been the best outcome. However, on the basis of the available evidence, the F‑tT had been entitled to conclude that the continuation of the guardianship was the least restrictive available option. It erred only in discussing whether the guardianship should be discharged if a lawful alternative might have been or become available but that was not sufficient to found a discharge (paragraphs 74 to 90);
- the appropriate course was for the appellant’s discharge from guardianship to be dealt with on a new application to the F-tT, supported by appropriate evidence and arguments (paragraphs 91 to 94).
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Peter Mant of counsel, instructed by Fish & Co, appeared for the appellant.
Jim Tindal of counsel, instructed by the Borough Council, appeared for the first respondent.
Joanne Clement of counsel, instructed by the Treasury Solicitors, appeared for the second respondent.
The third and fourth respondents were not represented and did not appear.
DECISION: Although the F-tT erred in law in the manner set out in [89] below pursuant to section 12(2) of the Tribunals, Courts and Enforcement Act 2007 I do not set aside their decision.
REASONS
Introduction
- Permission to bring this appeal was granted by the First-tier Tribunal (the F-tT) because in the view of the judge it raises points upon which guidance is needed. Those points concern the relationship between the functions and powers of the F-tT under the Mental Health Act 1983 (the MHA) and those of the Court of Protection, managing authorities and supervisory bodies under the Mental Capacity Act 2005 (the MCA) and its Deprivation of Liberty Safeguards (DOLS). The most relevant provisions of the MHA in this case are those relating to guardianship.
- The two statutes create different statutory regimes directed at different primary purposes. Decision-makers under them apply different tests. But what could and so may be, or has been, decided under the MHA can be relevant to decisions to be made under the MCA (and vice versa).
The MCA
- Its DOLS only apply to a placement in a hospital or a care home and it enables authorisations to be given of a deprivation of liberty of a person (P) at such a placement for the purposes of his care or treatment. The most relevant provisions are contained in Schedules A1 and 1A of the MCA. Any other authorisation under the MCA of a deprivation of liberty can only be given to give effect to a decision of the Court of Protection concerning P’s personal welfare. So, the Court of Protection by making an order (i) makes a decision on P’s behalf that has the effect of approving a placement and a care plan, and (ii) the MCA authorises any deprivation of liberty that the implementation of that care plan will give rise to. In doing so the Court of Protection determines what practically available option is in P’s best interests.
- Accordingly, the MCA enables the authorisation by two distinct routes of situations that amount to (or in my view may amount to – see AM v South London & Maudsley NHS Foundation Trust and Secretary of State for Health [2013] UKUT 365 (AAC); [2014] AACR 13 at [60]) a deprivation of liberty.
- It follows that a reference to a person being deprived of his liberty under or by the MCA is potentially a misleading shorthand. This is because what the MCA authorises and so renders lawful is the implementation of a regime of care or treatment in P’s best interests. In addition the Court of Protection can grant injunctions to restrain a person acting in a way that would break the care plan.
- No authorisation of a deprivation of liberty can be given under the MCA and its DOLS if the relevant person is ineligible to be deprived of his liberty by the MCA. The definition of that ineligibility is found in Part 1 of Schedule 1A to the MCA, which together with Schedule A1 is a notoriously difficult piece of legislation to construe and apply. It cross refers to, and so creates a linkage with, the MHA.
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