Secretary of State for Justice HM 1518 2015
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Charles |
| Judgment Date | 02 July 2015 |
| Neutral Citation | 2015 UKUT 376 AAC |
| Subject Matter | Mental health |
| Respondent | KC and C Partnership NHS Foundation Trust |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HM 1518 2015 |
| Appellant | Secretary of State for Justice |
IN THE UPPER TRIBUNAL Case No: HM/1518/2015
ADMINISTRATIVE APPEALS CHAMBER
Before: Mr Justice Charles
Secretary of State for Justice
Appellant
and
(1) KC
First Respondent
(2) C Partnership NHS Foundation Trust
Second Respondent
Attendances:
For the Appellant: Peter Mant, instructed by the Government Legal Department
For the First Respondent: David Lock QC, instructed Southerns
The Second Respondent: Not represented
Save for the cover sheet this decision may be made public. That sheet is not part of the decision.
DECISION
- This appeal is dismissed
- 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
INDEX
Introduction Paragraphs 1 to 19
Some background facts Paragraphs 20 to 25
The most relevant provisions of the MHA Paragraphs 26 to 32
Article 5 of the ECHR – Deprivations of Liberty Paragraphs 42 to 46
Conditions under ss.42 and 73 of the MHA Paragraphs 47 to 50
Enforceability of the statutory duty created
by s 73(4) of the MHA and thus the conditions Paragraphs 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 Paragraph 55 to 57
The roles of the FTT and the COP Paragraphs 58 to 64
The impact of my conclusions on the proper exercise of
their powers by the decision makers under the MHA Paragraphs 65 to 73
The ratio of the RB case paragraphs 74 to 84
Conditional discharge under s. 73 of the MHA Paragraphs 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. Paragraphs 94 to 113
The timing of an authorisation of a deprivation of liberty
under the MCA Paragraph 114
Article 5(4) and Article 14 Paragraphs 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 Paragraphs 124 to 133
The problems arising from the ability to withdraw consent Paragraphs 134 to 139
Judge Rowland’s analysis in the RB case by reference to
the definition of a hospital and the PH principle Paragraph 140
Summary of my conclusions and the approach to be
Taken Paragraph 141
REASONS
Introduction
- KC is a restricted patient.
- 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.
- 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.
- 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.
- These grounds reflect the conclusions of the FTT on the tests set by s. 73 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
- The FTT made a “provisional” decision. In DC v Nottinghamshire Healthcare NHS Trust and the Secretary of State for Justice [2012] UKUT 92 (AAC) Upper Tribunal Judge Jacobs discusses the earlier cases and gives guidance on when the FTT should adjourn, make a decision under s. 73(7) of the MHA or a provisional decision as R(H) v SSHD [2003] QB 320 and [2004] 2 AC 253 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 paragraph 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.
- 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 P [2014] UKSC 19 (Cheshire West).
- The Placement is not at a care home or a hospital and so the provisions of Schedules 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 s. 16(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 s. 4A(3) of the MCA.
- 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...
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