MM HM 2133 2015
| Jurisdiction | UK Non-devolved |
| Judge | Other Judges / Other Commissioners/Deputy Commissioners |
| Judgment Date | 28 November 2018 |
| Neutral Citation | 2015 UKUT 644 AAC |
| Subject Matter | Mental health |
| Respondent | (1) WL Clinic and (2) MHU |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HM 2133 2015 |
| Appellant | MM |
DECISION
- This appeal is allowed
-
I remit MM’s application to the FTT on the bases that
- it should apply my decision in Secretary of State for Justice v KC and C Partnership NHS Foundation Trust [2015] UKUT [2015] UKUT 0376 (AAC) (the KC case) in determining its jurisdiction, and
- it should apply my conclusions in this decision (see in particular paragraphs 64 to 68 hereof).
REASONS
Introduction
- This appeal raises the point whether for the purposes of Article 5 a restricted patient who has the capacity to do so can give a valid consent to the terms of a conditional discharge that, when it is implemented, will on an objective assessment create a deprivation of the patient’s liberty.
- It is therefore a follow up to my decision in Secretary of State for Justice v KC and C Partnership NHS Foundation Trust [2015] UKUT [2015] UKUT 0376 (AAC) which related to a restricted patient who lacked the relevant capacity to consent to the conditions of his conditional discharge, his care package and any deprivation of his liberty that would arise from their implementation. However I set out views on the position of a restricted patient with the relevant capacity at paragraphs 124 to 139 where I said:
A restricted patient who has the capacity to consent to the protective conditions that if implemented would result in his deprivation of liberty
-
In the RB case the Upper Tribunal expressed the following views at paragraphs 60 to 62 of their decision:
- The tribunal raised a separate point that RB’s “valid and meaningful consent to a move to [the care home] (a move which would manifestly be in his interests) would prevent the deprivation of his liberty amounting to a breach of Article 5. It relied on comments in Stork, para 73 that:
“ -- A person can only be considered to have been deprived of his liberty if, as an additional subjective element, he has not validly consented to the confinement in question -- ”
- We cannot accept this line of reasoning. (As already noted, a similar line of argument was rejected by Collins J in G [2004] EWHC 2193) ---------
- By contrast, in the present case it cannot be suggested that RB consented to his initial psychiatric detention. He has at all material times been detained by virtue of an order imposed by the Court under the Mental Health Act 1983. He has never been offered the option of absolute discharge nor is there any prospect of such an offer being made in the foreseeable future. The only alternative presented to RB is to agree to a condition of his detention within his present regime or to agree the alternative regime contemplated in the Tribunal's order. This very limited choice cannot be equated to a free and unfettered consent to psychiatric detention order the conditions proposed by the Tribunal. A person's consent to alternative conditions of his detention regime is not the same as his consent to the existence of the regime itself.
125 These views and my comments on them are obiter.
126 I disagree with the reasoning that founds those views and so also with the reasoning in the G case (R(G) v Mental Health Review Tribunal in particular at paragraph 23). In my view, that line of reasoning is flawed because:
i) it places incorrect reliance on a continuation of a liability to be detained, the lack of consent to the original detention, the lack of an offer of an absolute discharge, the lack of any such offer being made in the foreseeable future and the point that the situation of a voluntary patient under s. 131 of the MHA is different because it only applies when there is no order or direction rendering the patient liable to be detained under the MHA,
ii) it is at odds with the nature of a conditional discharge under s. 73 of the MHA (see paragraphs 83 to 88 above – this reference is incorrect and it should be to 85 to 91),
iii) importantly, and in any event, it fails to recognise that the risk of recall, and so the liability to be detained in the same compulsory way as existed before a conditional discharge, does not mean that the nature and effect of a deprivation of liberty that will arise on a conditional discharge based on different considerations and powers does not give rise to a choice particularly when, as in the case of RB and here, the change would manifestly (a) be to a different regime of care, support and control, and (b) be in the best interests of the relevant patient,
iv) RB could have applied for an absolute discharge even though his prospects of getting it would have been low, and accordingly
v) it proceeds on the mistaken premise that all detentions and deprivations of liberty within or related to a regime should be treated as being the same and so fails to recognise that (a) just as with a move to being a voluntary patient the offer of a conditional discharge gives rise to a real choice between alternatives including ones between more and less restrictive options and ones that in many cases will have a marked impact on the living conditions and the short, medium and long term best interests of the patient, and (b) the consent would not have been to the continued existence of the pre-existing regime of care, support and control.
127 The Secretary of State argued that the situation is analogous to that of a prisoner being transferred from high to low security or to hospital and such a prisoner cannot be said to consent to the underlying detention. I do not agree because there the source of the underlying detention remains the same and in any event I see no reason why, if it was necessary to found a lawful move, the prisoner could not give informed and valid consent to the implementation of the changes to the manner in which he was to be detained.
128 Further, if this approach and conclusion of the Upper Tribunal in the RB case is right it creates difficulties in the way of the Court of Protection making the relevant choice on behalf of a patient who lacks capacity (which was an integral part of the Secretary of State’s jurisdictional solution to the problems created by the RB case). This is because the underlying theme of the MCA is that it enables things to be done on behalf of the patient that he could do himself if he had capacity and, as I have explained, the best interests jurisdiction of the Court of Protection is exercised by making choices between available options. To my mind correctly no-one suggested that the Court of Protection could not make the equivalent choice for KC that the Upper Tribunal concluded RB could not give a valid consent to.
129 Further, the conclusion of the Upper Tribunal in the RB case founds the surprising and arguably discriminatory result that a restricted patient over whom the Court of Protection has no jurisdiction, or who is not covered by the DOLS because he has the relevant capacity, is in a worse position than a patient who lacks that capacity. In my view, the point made by the Secretary of State that the powers of the FTT are the same for both types of patient is not an answer to this problem. This is because it is the result that matters and the relevant issue is not directed to the powers of the FTT but to whether consent to conditions can be given by or on behalf of the patient.
130 The choices presented to the Court of Protection and a patient with the relevant capacity can be limited or wide and easy or difficult. For example, they may have to make choices between whether to have unpleasant and risky surgery for a medical condition or not to have surgery knowing the underlying condition may lead to death. However the existence of only unpleasant choices does not prevent the individual patient having the right to choose or the Court of Protection from choosing on his behalf.
131 Having said that limitations on, or the existence of influence in respect of, the choice are relevant factors as is shown for example by Freeman v Home Office (No 2) [1984] QB 524. That case, at the appeal stage, turned on the issue whether a vulnerable prisoner could give valid consent for drugs to be administered to him when he had initially refused to provide consent. The trial Judge found for the Home Office on the facts but acknowledged that a person’s consent must be voluntary. His approach, endorsed by Lord Donaldson at 557, was as follows:
The right approach, in my judgment, is to say that where, in a prison setting, a doctor has power to influence a...
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