MC v Cygnet Behavioural Health Ltd and Secretary of State for Justice
| Jurisdiction | UK Non-devolved |
| Judge | UTJ Jacobs |
| Judgment Date | 16 July 2020 |
| Neutral Citation | [2020] UKUT 230 (AAC) |
| Docket Number | HM/0126/2020 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
Neutral Citation: [2020] UKUT 230 (AAC)
Judge: UTJ Jacobs
HM/0126/2020
Court and Reference: Upper Tribunal (AAC),
Facts: MC, who was detained under ss37/41 Mental Health Act 1983 but granted leave to under s17 to live in a nursing home, lacked capacity to make decisions about her accommodation, care or treatment. She applied for a conditional discharge, which the Tribunal was asked to grant with conditions of residence at the nursing home and compliance with medication and assessments and appointments, deferred until a standard authorisation under the Mental Capacity Act 2005 was put in place (assessments for that having been completed by the local authority). The clinical team supported this and the Tribunal wished to mke such an order, but interpreted the law so as not to permit it. This was appealed to the Upper Tribunal.
Representatives: I Harris (instructed by James McAulay of ABR Solicitors) for MC, F Paterson (instructed by the Government Legal Department) for the Secretary of State; Cygnet did not participate.
As the decision of the First-tier Tribunal involved the making of an error in point of law, it is set aside under s12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is re-made.
The decision is: the patient (MC) is to be conditionally discharged at 14.00 on 10 August 2020, subject to these conditions:
(a) MC will reside at supported accommodation or nursing home as agreed by her Responsible Clinician (the details of which should be notified to the Ministry of Justice at least 14 days prior to any move, where it is practicable to do so).
(b) She will accept psychiatric and social supervision from her community Responsible Clinician and Social Supervisor.
(c) She will comply with all aspects of the care package devised for her by her Responsible Clinician and/or any other professional responsible for her social and/or medical care, including (but not limited to) complying with prescribed medication, making herself available for assessment by the community mental health team and attending appointments.
(d) MC, her Responsible Clinician and the Secretary of State have permission to apply to the First-tier Tribunal for a variation of conditions 1–3 above in the event of a material change in circumstances.
1. The patient in this case lacks capacity to make decisions about her accommodation, care or treatment. She has been subject to hospital and restriction orders under ss37 and 41 of the Mental Health Act 1983 since 1993. She has now applied to be conditionally discharged. The evidence shows that she needs medical treatment but that there is no need for it to be delivered in a hospital. However, the only way that the treatment could be delivered effectively involves a deprivation of her liberty within the meaning of the Mental Capacity Act 2005. The First-tier Tribunal has no power to impose a condition to that effect, but does it have power to co-ordinate its decision with the provision of an authorisation under the 2005 Act? I have decided that it does.
2. Every judge of the Upper Tribunal, the High Court and the Court of Appeal who has expressed a view has said this approach is permissible. The Supreme Court has declined to deal with the issue. No judge at any of those levels has said that it is not permissible. So what's the problem? In fact, there are 3 problems. All arise ultimately from the decision of the Supreme Court in M v Secretary of State for Justice[2019] AC 712, [2018] MHLR 392.
3. The first problem is that there is a difference of view among the judges of the First-tier Tribunal. Ms Paterson has sent me a copy of a decision by a different panel of the First-tier Tribunal that took an approach that the tribunal in this case felt unable to take. Consistency is important in the interpretation and application of the 1983 Act and it is one of the roles of the Upper Tribunal to ensure this consistency. It will be achieved by this decision and I need say no more about this problem. I do, though, need to deal with the other problems.
4. The second problem underlies the difference of views. It is a disagreement whether the reasoning on the issue decided by M undermines the reasoning in previous cases on patients who lack capacity, and in particular the reasoning of Charles J in Secretary of State for Justice v KC and C Partnership NHS Foundation Trust[2015] MHLR 369.
5. The third problem is whether a patient's Convention rights prevent the First-tier Tribunal from co-ordinating with the capacity decision-maker.
6. The patient was born in 1952. She has had resistant paranoid schizophrenia since the 1970s. She is subject to orders under ss37 and 41 of the 1983 Act, which were made in 1993 after she was convicted of arson. From June 2019, she has been living in a Nursing Home on extended leave under s17(3). She applied to the First-tier Tribunal for a conditional discharge on 1 August 2019, with the support of her treating team.
7. The case came before the First-tier Tribunal on 30 October 2019, when the hearing was adjourned for a standard authorisation under the 2005 Act to be obtained from the local authority. The hearing was resumed on 25 November 2019, by which time the local authority had completed the standard authorisation assessments. Her solicitor invited the tribunal to defer the conditional discharge for a standard authorisation to be put in place. The conditions proposed were that the patient would:
(a) reside at the Nursing Home;
(b) comply with medication and make herself available for assessment; and
(c) make herself available for appointments.
The tribunal refused to discharge the patient.
35. The Tribunal was aware that Mental Capacity Act decision makers can deprive conditionally discharged patients of their liberty (as concluded by Mrs Justice Lieven in Birmingham City Council v SR and Lancashire City Council and JTA[2019] EWCOP 28). However, in the Tribunal's view based upon its analysis of KC, what is possible in another jurisdiction does not abrogate the Tribunal's statutory duty regarding the imposition of protective conditions upon a patient's conditional discharge.
36. If the Tribunal's understanding of the KC decision is correct, Mr Justice Charles was clear that it was the statutory duty of the Tribunal (or the Secretary of State) to impose conditions necessary for the patient's health and safety and/or for the protection of others and that that duty could not be delegated to a Mental Capacity Act decision maker. Consequently, Mr Justice Charles envisaged that the Tribunal would impose protective conditions and, if they created a deprivation of liberty, that that would be authorised for patients who lacked capacity by the Mental Capacity Act. That jurisdictional solution to achieving [the patient's] discharge is simply no longer available to the Tribunal because of the binding authority of the Supreme Court in MM which states that the Tribunal cannot lawfully impose such conditions.
8. The tribunal would have preferred to discharge the patient conditionally if it felt the law allowed it to do so, as is evident from the final paragraph of the written reasons:
51. It was with regret that the Tribunal was unable to reconcile case law and its statutory duty to impose conditions to give effect to the conditional discharge sought …, an outcome which was unanimously supported by her clinical team. …
9. These are the relevant provisions of the 1983 Act:
72. Powers of tribunals
(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 of 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; …
73. Power to discharge restricted patients
(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...
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MC v Cygnet Behavioural Health Ltd and Secretary of State for Justice
...decision and identifies the patient by name. THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) UPPER TRIBUNAL CASE NO: HM/0126/2020 [2020] UKUT 230 (AAC) MC V CYGNET BEHAVIOURAL HEALTH LTD AND THE SECRETARY OF STATE FOR JUSTICE Decided without a hearing Representatives Patient Ian Harris ......