PJ v (1) A Local Health Board (2) The Welsh Ministers (3) The Health Department [2015] UKUT 0480 (AAC)
| Jurisdiction | UK Non-devolved |
| Judge | Charles J |
| Judgment Date | 04 September 2015 |
| Neutral Citation | [2015] UKUT 480 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Date | 04 September 2015 |
| Docket Number | HM/4061/2014 |
Neutral Citation: [2015] UKUT 0480 (AAC)
Court and Reference: Upper Tribunal
Judges: Charles J
HM/4061/2014
Appearances: P Mant (instructed by GHP Legal) for PJ; S Burrows (instructed by NWSSP – L&RS) for the Board; the Ministers and the Department were not represented and did not appear.
Issues: Whether a Tribunal was correct not to consider whether the conditions of a Community Treatment Order breached Art 5 ECHR; the role of arguments under the ECHR in Tribunal proceedings.
Facts: PJ, who had a learning disability and autism, had been detained under the criminal and civil provisions of the Mental Health Act 1983. In September 2011, he was released from hospital under a Community Treatment Order; conditions included residence in a care home and abiding by a care plan under which there was significant monitoring and limited unescorted leave. There was also a risk mitigation plan in case of sexually inappropriate behaviour. The CTO was challenged in a Tribunal in part on the basis that it involved an unlawful deprivation of liberty which the Tribunal could remedy by exercising its discretion to discharge. In its reasons for upholding the CTO, the Tribunal concluded that (i) there were restrictions on rather than a deprivation of liberty because PJ was not subject to continuous supervision (which meant that it was not necessary to consider whether he was free to leave); and (ii) the CTO provided a framework for ongoing monitoring and review that was necessary in light of PJ's illness and the uncertainties arising from applicable risk factors; and that this approach had to take precedence over human rights issues. On appeal, the central issues were whether PJ had been deprived of his liberty and the approach of a Tribunal on finding that a breach of rights. PJ had been discharged from the CTO by the time of the hearing.
(1) The MHRT erred in law in their application of the majority decision of the Supreme Court in Cheshire West and Cheshire Council v PMHLR[2014] MHLR 394 (Cheshire West) and so in their approach to whether the implementation of the conditions of the Community Treatment Order did or did not, on an objective assessment, deprive PJ of his liberty.
(2) The MHRT erred in law in concluding in the alternative that if PJ was deprived of his liberty in breach of Art 5 that the CTO framework must take precedence over any human rights issues.
(3) The parties (including the second and third Respondents who took no active part in the appeal) have permission to appeal (if they wish to do so).
(4) As PJ is no longer subject to a CTO remission is inappropriate and pursuant to s12(2) of the Tribunals Courts and Enforcement Act 2007 I do not set aside the decision of the MHRT.
1. This is an appeal against a decision of the Mental Health Review Tribunal for Wales (the MHRT) of 2 May 2014. By that decision (the MHRT Decision) the tribunal upheld PJ's community treatment order (CTO). PJ was discharged from his CTO on 25 November 2014 and so the outcome of his appeal will have no immediate impact on him. But as I recognised when giving permission to appeal this appeal raises points of general importance. That is why I joined the second and third Respondents but neither has taken an active part. Fortunately, the Health Board has and so I have had the benefit of oral argument on the issues raised in this appeal.
2. There are overlaps between the issues on this appeal and those in 3 appeals that I have recently decided (YA v Central and NW London NHS Trust & OthersMHLR[2015] MHLR 144 (the YA case) KD v A Borough Council and the Department of HealthMHLR[2015] MHLR 358 (the KD case) and Secretary of State for Justice v KC and C Partnership Foundation TrustMHLR[2015] MHLR 369 (the KC case).
3. The Health Board rely on 3 recent decisions of UTJ Jacobs (SH v Cornwall Partnership NHS TrustMHLR[2012] MHLR 383 (the SH case), GA v Betsi Cadwaladr University LHBMHLR[2014] MHLR 27 (in which permission to appeal was refused on the papers by Richards LJ in terms that support the reasoning and conclusion of UTJ Jacobs) (the GA case) and NL v HampshireMHLR[2015] MHLR 338 (the NL case). Correctly the Health Board did not argue that the decision of Richards LJ in refusing permission to appeal was binding on me (see Practice Direction (Citation of Authorities) (Sup Ct) [2001] 1 WLR 1001).
4. As appears from the KC case, I rejected the argument of the Secretary of State on the extent of the ratio of the decision in RB v Secretary of State for JusticeMHLR[2011] MHLR 37 (UT) and [2012] MHLR 131, [2012] 1 WLR 2043 (CA) (the RB case) and reached obiter conclusions that disagreed with the conclusion of a 3 judge panel of the Upper Tribunal in the RB case on the ability of a patient to give a valid consent to an objectively assessed deprivation of liberty.
5. As I said in the KC case an underlying purpose of the MHA is to:
i) promote a move of a patient from detention in hospital towards him or her living in the community, whilst
ii) providing the necessary protection of the public and the patient that his or her history indicates is needed
(see, for example, the citation and comments at paras 48 and 49 of the KC case).
6. Such a preliminary and conditional move is likely to be in the best interests of many, if not all, patients.
7. The underlying problem is whether the conditions that are necessary to protect the public and the patient, and so conditions that are needed on a proper application of the tests set by the MHA to protect the patient or the public, can be lawfully put in place and implemented.
8. That problem has been created by, or has grown in significance as a result of, the decision of the Supreme Court in Cheshire West and Cheshire Council v PMHLR[2014] MHLR 394 (Cheshire West) because, on any view, that decision has had the results that:
i) more people are deprived of their liberty than had been thought by many to be the case (see, for example, paras 3.39 and 2.40 of the Law Commission's Consultation Paper titled ‘Mental Capacity and Deprivation of Liberty A Consultation Paper’ (the LC Paper), and
ii) many, if not most, patients who are conditionally discharged on conditions that are necessary to protect either or both themselves or the public will be objectively deprived of their liberty on the Cheshire West approach to that issue and so to Art 5.
9. Some of those patients will have capacity to make decisions relating to their care and treatment regime and to any deprivation of liberty that its implementation will create. Other patients will not have that capacity. So the Mental Capacity Act 2005 (the MCA) will only apply to some of the patients and, as the KC case shows, there are problems in connection with both:
i) the extent of the powers of MHA decision makers to impose or make conditional discharge orders on conditions that, when implemented, will objectively create a deprivation of liberty, and
ii) whether that objective deprivation of liberty can be rendered lawful by the consent of a patient with capacity or, when the patient lacks the relevant capacity, by an order of the Court of Protection under the MCA or by an authorisation under its DOLS.
10. As the LC Paper points out at para 1.14 the Strasbourg law operates on the Guzzardi principle that the starting point in assessing whether there has been a deprivation of liberty is ‘the concrete situation’ of the person and the consideration of ‘a whole range of criteria such as the type, duration, effects and manner of implementation of the [restrictive] measure in question’ (see Guzzardi v Italy(1980) 3 EHRR at para 92 and 93). In my view, that principle and approach is a powerful pointer:
i) to the conclusion that it is the practical situation on the ground created by a care and treatment regime, and so the practical impact on the freedom of the relevant person to act as he or she wishes, that matter when assessing whether objectively patients are deprived of their liberty, and
ii) against the conclusion that the lack of provisions relating to the direct enforcement of, and so the specific performance by the patient and those delivering the regime of care, of restrictive conditions have weight.
11. A combination of the jurisdictional arguments advanced in the KC case could have founded what many would consider to be the counter intuitive result a breach of Convention rights thwarts the implementation of a conditional discharge (or a direction by a guardian as to where the person should live) that:
i) is the best interests of the relevant patients, and
ii) promotes the underlying purpose of the MHA referred to in para 5 hereof
because the implementation of the relevant conditions is or would be a breach of those Convention rights (in particular Art 5, but potentially also Art 6, 8 and 14) and so unlawful.
12. I did not reach that conclusion and the issues in this case relate to whether, and if they can how, the First-tier Tribunal (and so the MHRT) address breaches or potential breaches of Convention rights that have been or will be created by the implementation of conditions that are necessary to protect the public and the patient, and so conditions that are needed on a proper application of the tests set by the MHA for those purposes.
13. Based on the 3 decisions of UTJ Jacobs the argument of the Health Board was to the effect that a First-tier Tribunal and so the MHRT:
i) as a matter of jurisdiction should limit itself to its statutory role, under which it has no jurisdiction or powers to investigate, consider and reach decisions on whether there has been a breach of human rights, and so for, example, issues of consent for the purposes of Art 8 and Art 5, and alternatively and in any event when...
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