KD v A Borough Council, Department of Health, MK, MAK
| Jurisdiction | UK Non-devolved |
| Judge | Charles J |
| Judgment Date | 18 May 2015 |
| Neutral Citation | [2015] UKUT 251 (AAC) |
| Date | 18 May 2015 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HM/2224/2014 |
Neutral Citation: [2015] UKUT 0251 (AAC)
Court and Reference: Upper Tribunal (AAC),
Judge: Charles J (President of the UT(AAC))
HM/2224/2014
Appearances: P Mant (instructed by Fish & Co) for KD, J Tindall (instructed by the Borough Council) for the Council, J Clement (instructed by the Treasury Solicitor) for the Department of Health.
Issue: The proper approach when an application is made to discharge a guardianship order on the basis that arrangements can be made under the MCA in relation to the patient.
Facts: KD, who had been diagnosed with Korsakov's Syndrome, arising from alcohol abuse, was detained under ss2 and then 3 Mental Health Act 1983 and then placed under s7 guardianship. In January 2014 a Tribunal found the guardianship necessary in the interests of KD's welfare and for the protection of others. KD's solicitor had suggested that he should be subject instead to the DOLS regime under the Mental Capacity Act 2005 because some of the restrictions imposed on KD could not properly be secured through guardianship, and that if DOLS was used then the guardianship order would not be necessary. The Tribunal noted the submission but concluded that the possibility of other arrangements being put in place did not affect whether the guardianship order was necessary. The propriety of its approach was raised on appeal.
Decision: Although the FTT erred in law in the manner set out in para 89 below pursuant to s12(2) of the Tribunals, courts and Enforcement Act 2007 I do not set aside their decision.
1. Permission to bring this appeal was granted by the First-tier Tribunal (the FTT) 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 FTT 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.
2. The 2 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).
3. 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 Scheds 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.
4. Accordingly, the MCA enables the authorisation by 2 distinct routes of situations that amount to (or in my view may amount to — see AM v (1) Maudsley NHS Foundation Trust and (2) SSHMHLR[2014] MHLR 181 at para 60) a deprivation of liberty.
5. 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.
6. No authorisation of a deprivation of liberty can be given under the MCA and its DOLS if the relevant person is ineligible to deprived of his liberty by the MCA. The definition of that ineligibility is found in Part 1 of Sched 1A to the MCA, which together with Sched A1 is a notoriously difficult piece of legislation to construe and apply. It cross refers to, and so creates a linkage with, the MHA.
7. The MHA. In contrast to the MCA, the MHA contains provisions that provide that a person (P) can be admitted to and detained at a hospital for defined purposes and the FTT is given important powers in respect of, amongst others, persons liable to be detained under the MHA, and persons who are subject to guardianship under the MHA.
8. Decision makers under the MHA do not apply a best interests test. However, the cases show that in some circumstances when applying the ‘necessity test’ under for example s72 the MHA decision maker should take into account the availability of an alternative placement pursuant to a care plan. Such a care plan could include one that results in, or may result in, P being deprived of his liberty that is or could be authorised under the MCA or it DOLS.
9. In this case the relevant comparison is between the continuation of guardianship under the MHA and a discharge on the basis that KD will be placed where he is or elsewhere under a care plan which, if amounts to a deprivation of his liberty, would authorised under the MCA or its DOLS.
10. So as UTJ Jacobs said in NM v Kent County CouncilMHLR[2015] MHLR 343, which was decided after this appeal was heard, an ideal set of reasons of the FTT would identify the relevant legal differences between the proposed alternatives and include findings of fact sufficient to show their significance to the legal criteria set by s72(4) MHA.
11. KD has been diagnosed with Korsakov's Syndrome. In 2011, he was admitted to hospital under s2 of the MHA and thereafter detained there under s3 of that Act. He has been the subject of guardianship since early 2012. He was transferred to his current placement which is a residential care home towards the end of 2012.
12. An application for KD's discharge from guardianship was made in June 2013. At a hearing on 15 January 2014, the FTT concluded that it was necessary in the interests of the welfare of KD, or for the protection of other persons, that KD should remain under guardianship. It is this decision (the FTT Decision) that is the subject of this appeal. On 12 May 2014 I gave directions that the Appellant was to file a statement setting out defined matters. A number of factors have contributed to the time it has taken for it to be heard.
13. KD asserted and asserts that his care regime at the residential care home where he is placed includes 24 hour supervision and support, that he is not free to leave and that he is not permitted to go out unless accompanied by a member of the care staff (and access to the community is limited by the non-availability of staff). A report of KD's responsible clinician asserts that KD objects to being at that residential home but that he has never attempted to abscond.
14. Prior to the hearing before the FTT members of his family had raised a number of concerns about the suitability of the placement. Initially they proposed that he should reside with them and a hearing before the FTT in September 2013 was adjourned to allow for assessment of this option. After further consideration the family decided that they did not wish KD to live with them but they continued to maintain that he was not at an appropriate placement, that his placement should be reassessed and potential alternatives sought which might allow KD to participate in more engaging and meaningful activities. KD's social worker requested an occupational therapy report and agreed to identify alternatives, but that report and details of the alternatives were not available prior to the hearing before the FTT on 15 January 2014.
15. Since the hearing before the FTT in January 2014, KD has remained at the same residential care home. In a report published in November 2014, the Care Quality Commission concluded that there were not enough qualified, skilled and experienced staff at that residential care home to meet the needs of its residents and following the publication of that report the First Respondent confirmed, in a statement to the media in November 2014, that it was not commissioning any new placements there.
16. I do not know what, if any, changes have been made at that placement following that report and statement.
17. The Appellant's statement in response to my directions is dated 19 August 2014 and I do not have up to date details of his care regime and care plan at that placement.
18. I joined the Department of Health as a respondent so that, if it wished to make submissions on the points of law of general application, it could do so. It has done so and I am grateful. I joined MK and MAK as respondents because they are respectively KD's eldest daughter and nearest relative, and his wife and it seemed members of KD's family who were challenging the arrangements for KD's care and at one stage were asserting that he should live and be cared for at home. They have taken no active part in the appeal.
19. The Appellant has been represented before me by the solicitor who represented him before the FTT.
20. The FTT Decision contains the following:
5. We accepted the uncontested evidence in the report that the patient is suffering from a mental disorder namely amnesic syndrome caused by a past history of extensive use of alcohol. The patient is now residing in a care home where his safety and daily needs are looked after and where he is discouraged and largely prevented from using alcohol which is likely to cause his condition to deteriorate.
6. We accepted the RC's view that significant improvement in the patient's condition is very unlikely. We...
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