Secretary of State for Justice v KC and C Partnership NHS Foundation Trust
| Jurisdiction | UK Non-devolved |
| Judge | Charles J |
| Judgment Date | 02 July 2015 |
| Neutral Citation | [2015] UKUT 376 (AAC) |
| Docket Number | HM/1518/2015 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Date | 02 July 2015 |
Neutral Citation: [2015] UKUT 0376 (AAC)
Court and Reference: Upper Tribunal (AAC),
Judge: Charles J
HM/1518/2015
Representatives: P Mant (instructed by the Government Legal Department) for the Secretary of State; D Lock QC (instructed by Southerns) for KC.
Issue: Whether a Tribunal could grant a conditional discharge to a restricted patient that included a condition with a care plan that would involve a deprivation of liberty, the discharge being deferred to allow the Court of Protection to decide whether the care plan was in the best interests of the patient, who did not have capacity in relation to the relevant matters.
Facts: KC, detained under ss37 and 41 Mental Health Act 1983 in 2004 after being convicted of indecent assault, was conditionally discharged in November 2010 but recalled in April 2011. A Tribunal considering his case in July 2014 found that further detention in hospital was not warranted as nothing more could be achieved, such that he would merely be contained; it also found that the supervision outside hospital required to prevent offending would amount to detention. KC was willing to be subject to the regime but did not have the capacity to consent to it. The Tribunal granted a conditional discharge under s73 of the 1983 Act, deferred to allow the local authority to apply to the Court of Protection for a declaration under the Mental Capacity Act 2005 to authorise the care plan. (The Deprivation of Liberty Safeguards under the 2005 Act were not available as the placement was not in a care home.) The Secretary of State challenged the decision, contending that the Tribunal had no jurisdiction to grant a conditional discharge involving detention; it was argued that the Tribunal should have granted a conditional discharge without the problematic condition, allowing the application to be made to the Court of Protection and relying on the Secretary of State's power of recall if the Court of Protection did not authorise the deprivation of liberty.
1. This appeal is dismissed.
2. In view of the change in circumstances since the matter was before the FTT the Secretary of State should invite the FTT to reconsider its decision.
— Introduction – paras 1 to 19
— Some background facts – paras 20 to 25
— The most relevant provisions of the MHA – paras 26 to 32
— Article 5 of the ECHR – Deprivations of Liberty — paras 42 to 46
— Conditions under ss42 and 73 of the MHA – paras 47 to 50
— Enforceability of the statutory duty created by s73(4) of the MHA and thus the conditions — paras 51 to 54
— A comparison between a conditionally discharged patient who is not deprived of his liberty and a person who needs social care and is placed by a local or other public authority in pursuance of its duties and powers – paras 55 to 57
— The roles of the FTT and the COP – paras 58 to 64
— The impact of my conclusions on the proper exercise of their powers by the decision makers under the MHA — paras 65 to 73
— The ratio of the RB case — paras 74 to 84
— Conditional discharge under s73 of the MHA — paras 85 to 93
— The process under the MCA to render a deprivation of liberty lawful if the conditionally discharged restricted patient lacks capacity to consent to the regime of his care and its effect. The eligibility of such a patient to be deprived of his liberty — paras 94 to 113
— The timing of an authorisation of a deprivation of liberty under the MCA — para 114
— Article 5(4) and Art 14 — paras 115 and 123
— A restricted patient who has the capacity to consent to the protective conditions that if implemented would result in his deprivation of liberty — paras 124 to 133
— The problems arising from the ability to withdraw consent — paras 134 to 139
— Judge Rowland's analysis in the RB case by reference to the definition of a hospital and the PH principle – para 140
— Summary of my conclusions and the approach to be taken — para 141
1. KC is a restricted patient.
2. This appeal was triggered by proceedings in the Court of Protection (the COP proceedings) which were brought by the relevant local authority (the local authority) for an order under the Mental Capacity Act 2005 (the MCA). The local authority was seeking a personal welfare order on the basis that it would be in KC's best interests for him to move to a proposed placement (the Placement) on the terms of a care plan for his care, supervision and management at that community placement.
3. The COP proceedings were brought as a result of the decision of the FTT made on 25 July 2014 (the FTT Decision) that is the subject of this appeal. It was described by the FTT as a ‘provisional decision’ and was in the following terms:
The tribunal is currently of the view that a conditional discharge should be directed but it is not satisfied that the condition(s) now proposed (set out below) can be implemented immediately. …
Conditions
1. The patient (KC) will reside at … (the Placement) and will not leave the premises unless accompanied and supervised at all times by an appropriate member of staff.
2. He will comply with all aspects of the care package which is devised for him by the NF organisation, and accept supervision and support from their staff.
3. He will accept psychiatric and social supervision from his community RC …
4. He will refrain from taking any alcohol and submit to any routine testing which may be required of him.
4. The grounds for the decision set out in the FTT Decision are as follows:
1. The tribunal is not satisfied that the patient is suffering from mental disorder or from mental disorder of a nature or degree that makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment.
2. The tribunal is not satisfied that it is necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment.
3. The tribunal is satisfied that appropriate medical treatment is available for the patient.
4. The tribunal considers that it is appropriate for the patient to remain liable to be recalled to hospital for further treatment.
5. The tribunal considers that conditions are required.
5. These grounds reflect the conclusions of the FTT on the tests set by s73 of the Mental Health Act 1983 (the MHA). There was no challenge to those conclusions including the conclusion that KC should remain liable for recall to hospital. As appears later, matters have now moved on and further factors need to be taken into account.
6. The FTT made a ‘provisional’ decision. In DC v Nottinghamshire Healthcare NHS Trust and the Secretary of State for JusticeMHLR[2012] MHLR 238 UTJ Jacobs discusses the earlier cases and gives guidance on when the FTT should adjourn, make a decision under s73(7) of the MHA or a provisional decision as R (IH) v SSHDELR[2003] QB 320, [2002] MHLR 87 and [2004] 2 AC 253, [2004] MHLR 51 indicates is possible. It seems to me that the FTT made such a provisional decision because it was confident enough to formulate conditions and defer a direction with a view to reconsideration if it was necessary. In my view, that was a permissible approach and one that should be supported by the Upper Tribunal (see para 32 of the Decision in the DC case). I add that in my view if the FTT had decided to adjourn that too would have been a permissible decision that should have been supported.
7. In my view correctly, it was common ground that the regime of care, supervision and management that was necessary for KC and would be provided pursuant to the care plan at the Placement and outside it (when he would be under constant supervision) by the NF organisation would amount to a deprivation of his liberty on the application of the approach set out by the majority in Cheshire West and Cheshire Council v PELR[2014] 1 AC 896, [2014] MHLR 394 (Cheshire West).
8. The Placement is not at a care home or a hospital and so the provisions of Scheds A1 and 1A of the MCA (its DOLS) do not apply to it. So the application of the local authority in the COP proceedings was for a welfare order under s16(2)(a) of the MCA in respect of that regime of care, supervision and management at the Placement and the authorisation of that deprivation of liberty pursuant to s4A(3) of the MCA.
9. In particular in respect of a deprivation of liberty, the relationship between the MHA and the MCA is not straightforward and the Court of Protection cannot include in a welfare order a provision which authorises a deprivation of liberty of the relevant person if he is ‘ineligible to be deprived of liberty by the MCA’. The definition of that ineligibility is found in Sched 1A.
10. At the directions hearing in the COP proceedings, the Appellant (the Secretary of State) indicated that he was considering seeking permission to appeal the FTT Decision out of time and I directed that, if he did so, I would list that application with the COP proceedings on the basis that, if I gave permission to appeal out of time, I would go on to deal with the substantive appeal. I gave permission.
11. The Secretary of State bases that appeal on the decision of the Court of Appeal RB v Secretary of State for JusticeMHLR[2011] MHLR 37 (UT) and [2012] MHLR 131, [2012] 1 WLR 2043 (CA) (the RB case). He argues that the ratio of the decision in the RB case means that the FTT had no power to make the FTT Decision because it is binding authority to the effect that no FTT can direct a conditional discharge of a restricted patient on conditions that, if they are put into effect, would result in a deprivation of liberty of the patient outside hospital.
12. If that is right, issues obviously arise as to whether, and if so how, a restricted patient, with or without capacity to consent to the terms of a care regime that provides his care...
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