Mental health, capacity and deprivation of liberty case law update, February 2019

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Mental Health Act
Legal Update

Connect with Rebecca Fitzpatrick
rebecca.fitzpatrick@brownejacobson.com
+44 (0)330 045 2131
Mental Health Act
Legal Update

What this session will cover
• SoState for Justice (Respondent) v MM – update re Supreme Court
Judgment
• Welsh Ministers v PJ [2018] UKSC 66 – update re Supreme Court
Judgment
• Hertfordshire County Council v AB [2018] – MHA and the inherent
jurisdiction
• Review of the Mental Health Act – summary of recommendations

Recent Mental Health Act
case law

SoS for Justice (Respondent) v MM
(Appellant) [2018] UKSC 60
• Judgment handed down on 28 November 2018
• Case considers nature and extent of powers of First Tier Tribunal
(mental health) where psychiatric patients apply to be conditionally
discharged into circumstances that deprive them of their liberty in
the community

(Appellant) [2018] UKSC 60 (cont)
MM had LD & ASD, but had capacity to make decisions about the
restriction of his liberty. MM had been detained in hospital under
s.37/41 Mental Health Act (MHA). He applied to the Tribunal seeking
conditional discharge with a proposed care package that amounted to a
deprivation of liberty (DoL).
The Tribunal rejected his argument that as he had capacity to consent
this, the tribunal could impose a condition requiring him to comply with
his care package.

The Upper Tribunal disagreed and allowed MM’s appeal, deciding that
the tribunal could impose conditions that amounted to a deprivation of
liberty and that a patient with capacity could validly consent to such
conditions. The CA supported the decision of the first instance Tribunal,
stating that there is no power under the MHA to authorise a DoL in the
community.

The Supreme Court has decided that the Mental Health Act 1983 does
not permit either the First Tier Mental Health Tribunal or the Secretary
of State to impose conditions amounting to detention or a deprivation of
liberty upon a conditionally discharged restricted patient. On this basis
the appeal was dismissed.
The power to deprive a person of his liberty an interference with their
fundamental right to liberty: such fundamental rights cannot be
overridden by general or ambiguous words in statute

In this context, looking at the words of s.42 of the Act (the Secretary of
State’s power of discharge restricted patients either absolutely or
conditionally) and s.73(2) (The Tribunal’s parallel power to absolutely or
conditionally discharge a detained restricted patient), they are very
general. Lady Hale notes that Parliament was not asked when
drafting/reviewing the Act to consider whether these sections included
a power to impose a different form of detention from that provided for
under the MHA.

On a practical level, the patient’s continued co-operation is crucial to
the success of any rehabilitation plan. There is, as the Tribunal found in
this case, always a concern that the patient’s willingness to comply is
motivated more by their desire to get out of hospital than by a desire to
stay in whatever community setting they are placed. The MHA confers
no coercive powers over conditionally discharged patients.

Breach of the conditions is not a criminal offence. It is not even an
automatic ground for recall to hospital, although it may well lead to
this. The patient could withdraw their consent to the deprivation at any
time and demand to be released: there is no contract by which the
patient is bound.

The MHA provides in detail for only two forms of detention:
• detention in a place of safety (sections 135 and 136); and
• detention in a hospital under the civil powers or criminal powers of
the Act (sections 2, 3, 4, 35, 36, 37, 38, 41, 45A,47 or 48).

In each of those cases, the Act gives specific powers, both to convey the
patient to the hospital or a place of safety and to detain them there.
However there is no equivalent express power to convey a conditionally
discharged restricted patient; if the MHA had contemplated that such a
patient could be detained, it is inconceivable that equivalent provision
would not have been made for that purpose.

A hospital order patient (including a patient on leave of absence) can
apply to the Mental Health Tribunal once within the second six months
of his detention and once within every 12-month period thereafter. A
conditionally discharged restricted patient who has not been recalled to
hospital can only apply once within the second 12 months of their
discharge and once within every two-year period thereafter.

At the very least, this is an indication that it was not thought that such
patients required the same degree of protection as did those deprived
of their liberty; and this again is an indication that it was not
contemplated that they could be deprived of their liberty by the
imposition of conditions.
The court rejected the argument that consent played a role, considering
this to be largely irrelevant to the issue in hand.

On a practical level, this continues to make it virtually impossible to
conditionally discharge patients subject to criminal sections such as
37/41 into the community, where the care arrangements proposed to
manage any risk in the community amount to an objective deprivation
of liberty and the patient has capacity.

At para 27, Lady Hale comments that whether the Court of Protection
could authorise a future deprivation, once the Mental Health Tribunal
has granted a conditional discharge, and whether the Tribunal could
defer its decision for this purpose, were not issues which it was
appropriate for the court to decide at this stage in these proceedings.
Therefore, it currently remains possible, for those patients who lack
capacity to facilitate discharge in these cases where a community care
plan amounting to a DoL is pre-authorised by the Court of Protection.

Discharge conditions that amount to deprivation of liberty
Suggests one way forward for MM type patients who have capacity but
require restrictions amounting to a DoL in order to be safely managed in
the community, is the use of long term s.17 leave.

There may be some practical challenges to this approach e.g.:
• Allocation of social supervisor at point of discharge - important part
of managing the risk
• Could this block up some beds?
• This could place more strain on already stretched detaining
authorities
• NB R v Hallstrom ex parte W [1986] QB 1090

Welsh Ministers v PJ[2018] UKSC 66
This Supreme Court case considered the interplay between Community
Treatment Orders under the Mental Health Act 1983 and deprivation of
liberty.
PJ had been detained in hospital and discharged under a Community
Treatment Order (CTO) with conditions that amounted to a DoL. He was
47 years old and described in evidence as having “mild to borderline
learning disability … He ha[d] also been assessed recently as having
difficulties which fall within the autistic spectrum.

This had been accompanied by abnormally aggressive and seriously
irresponsible behaviour consisting of violent and sexual offending.
PJ was subject to a CTO that imposed three bespoke conditions under
section 17B(2) of the MHA including to reside at a named care home and
to abide by the rules and also to comply with the care plan drawn up by
multidisciplinary team. There was agreement that the conditions of the
CTO amounted to an objective deprivation of liberty.

In particular PJ’s whereabouts were monitored at all times within the
unit, with 15 minute observations and he was escorted by staff on all
community outings, including when attending college and meeting his
girlfriend.
There was also agreement that PJ had the capacity to consent to the care
plan and to the conditions in the CTO. The evidence before the tribunal
was that he was happy to stay at the care home and understood that the
CTO brought benefits because he needed clear boundaries, but that he
would like more freedom to see his family and his girlfriend.

The Supreme Court unanimously allowed the appeal. The Court declared
that there is no power to impose conditions in a Community Treatment
Order which have the effect of objectively depriving a patient of his liberty,
in a judgment consistent with the Supreme Court’s reasoning set out in the
linked case of MM.
The Court commented that it is a fundamental principle of statutory
construction that a power expressed in general words should not be
construed to interfere with fundamental rights such as the right to liberty
of the person.

The Supreme Court judgment – Reasons
• There is no power to detain a patient on a CTO, no power to impose
medical treatment without consent, no sanction for failing to comply
with the care plan, other than the limited power of recall and no
power similar to that for section 2 or 3 patients to recapture them if
they breach the care plan or are absent without leave.
• If the CTO patient cannot be made to take their medication, how can
Parliament have intended an even greater interference with their
fundamental rights?

The Supreme Court judgment – Reasons (cont)
• The 2007 amendments to the 1983 Act were preceded by lengthy
examination and consultation; the Royal College of Psychiatrists had
long been pressing for some means of ensuring that detained patients
kept up with their medication and did not get lost after being
discharged from hospital. However these calls for coercive treatment
in the community were rejected as there was great opposition to any
form of compulsory or forcible medical treatment outside the
carefully controlled environment of a hospital.

The Supreme Court judgment – ECHR rights
As regards the second issue raised of the interplay between the
patient’s ECHR rights and the Tribunal’s powers, Lady Hale held that:
“33.[…] The MHRT has no jurisdiction over the conditions of treatment
and detention in hospital, but these can be relevant to whether the
statutory criteria for detention are made out, especially in borderline
cases….. If the reality is that he is being unlawfully detained, then the
remedy is either habeas corpus or judicial review”

In light of the recent related MM judgment, this judgment and reasoning
is not unexpected and accords with the existing MHA Code of Practice
and original purpose of CTOs as discussed at length in the lead up to the
2007 Act.

Hertfordshire County Council v AB [2018]
EWHC 3103 (Fam)
This case considered the whether the High Court’s inherent jurisdiction
can be used to authorise a deprivation of liberty of a patient with
capacity who is subject to a conditional discharge under the Mental
Health Act 1983.
The judgment was handed down on 14 December 2018.
AB was a 28 year old man subject s.37/41 MHA following convictions for
two counts of rape and one count of sexual assault of a child. AB had an
assessed IQ of 71, which amounted to a mild learning disability.

EWHC 3103 (Fam)
AB was conditionally discharged from hospital in June 2016 by the
Tribunal which included a requirement to comply with his care and risk
management plan. AB had the capacity to understand and consent to
his care, support and accommodation arrangements. As part of his care
plan AB was supervised at all times across a twenty-four hour period
including when he was visiting his family. AB consented to these
conditions in 2016 and continued to do so.

EWHC 3103 (Fam)
In light of the recent Supreme Court judgment in Secretary of State for
Justice (Respondent) v MM (Appellant) [2018], the Local Authority
applied to the High Court seeking an order under its inherent
jurisdiction to authorise the deprivation of AB’s liberty arguing that
applying the earlier decision of Anderson v Spencer [2018] EWCA Civ
100, [2018] 2 FLR 547, the inherent jurisdiction could be extended in
the particular circumstances of that case where there was a ‘legislative
void’.

EWHC 3103 (Fam)
The court accepted the arguments advanced by the Local Authority in
respect of the extension of the inherent jurisdiction to encompass the
particular circumstances of AB’s case.

Review of the Mental
Health Act

A new Mental Health Act?

• May 2017, PM stated that if elected, her government would replace
the “flawed” Mental Health Act “in its entirety”
• With new mental health Treatment Bill incl:
• revised thresholds for detentions
• new Code of Practice
• more safeguards for those with mental health problems who have
capacity so that ‘they can never be treated against their will’

• Mental health professionals, charities and patients were consulted on
the plans, which come against a backdrop of a steep rise in MHA
detentions in recent years
• Argued it would be the biggest change to mental health treatment
law in more than 30 years.
• Concern about disproportionate use of MHA detention for minority
groups highlighted in her speech to the Conservative Party
Conference

Some of the concerns
MH Alliance document ‘A MHA Fit for Tomorrow’:
• Deep concern that people’s dignity, autonomy
and human rights are overlooked when the MHA
is applied
• 49% disagreed that people are treated with
dignity under the Mental Health Act
• 50% not confident their human rights would be
protected under MHA if they were detained
under it

CQC ‘State of Care in MH Report’
Combines evidence from CQC inspections and
findings & from role monitoring use of MHA, as
well as analysis of data from other sources.
• Great variation between wards in how
frequently staff use restrictive practices and
physical restraint to deescalate challenging
behaviour
• The impact of staffing shortages
• Commissioning of crisis care services

CQC ‘State of Care in MH Report’
Combines evidence from CQC inspections and
findings & from role monitoring use of MHA, as
well as analysis of data from other sources.
• Safety: Poor physical environment of many
mental health wards, including fixtures &
fittings - patients at risk

Change ahead for the MHA?
• Government commissioned Independent Review – “Modernising the
MHA”
• Interim Report published in May 2018
• Final report published December 2018
• Chaired by Sir Simon Wessely

Final Report and Recommendations –
December 2018
154 recommendations to modernise the Mental Health Act in 306 page
document- government accepting 2 of these:
• Those detained under the Act will be allowed to nominate a person of
their choice to be involved in decisions about their care as their nearest
relative. Currently, they have no say on which relative is contacted. This
can lead to distant or unknown relatives being called upon to make
important decisions about their care when they are at their most
vulnerable.
• People will also be able to express their preferences for care and
treatment and have these listed in statutory ‘advance choice’ documents.

December 2018
Giving legal weight to advance choices
A number of recommendations to give greater weight to people’s wishes
and preferences, including the two accepted by government to replace
the nearest relative by a nominated person and introduce statutory
advance choice documents (ACDs). The review states that concepts in the
Mental Capacity Act of advance decision-making and welfare powers of
attorney should also apply in the context of the Mental Health Act.

December 2018
ACDs would be offered to anyone who had been previously detained and
potentially those at heightened risk of detention and set out preferences
for and against certain forms of treatment and about how treatment
should be administered, and details of who should be informed of a
detention and religious or cultural requirements.

December 2018
Where a person had made an ACD with capacity – something the review
recommends should be authenticated by a health professional – clinicians
would have to honour them, unless there was a compelling reason not to,
such as that the preferred treatment would be harmful. They would not
supercede the compulsory powers of the Act, but would be subject to
review, through the existing safeguards of a SOAD (provided earlier than
the current 3 months), with the additional possibility of review by a
Tribunal, as part of the proposed general principle of moving the system
towards greater recognition of wishes and preferences.

December 2018
Requesting a treatment known to be harmful or ineffective could still be
documented, but would not be implemented, and the same would apply
to any ACD that contravenes the wishes expressed by Parliament
regarding “assisted dying”. There would also be a clear route of
challenge to a Tribunal available to a patient or their representative
against individual treatment decisions.

December 2018
The review also proposes that ACDs or other expressions of wishes around
ECT could be overruled only by the authorisation of a judge (usually a
High Court Judge) of the Court of Protection on strict criteria involving
immediate risk to life, probably in circumstances where a person is now
in a situation that they are unable to express any intention to change
their mind - such as catatonia or depressive stupor.

December 2018
Where a person lacked capacity to make an ACD, they should still be
encouraged to state their preferences in advance, and these should be
taken account of by professionals as part of a best interests decision
around their treatment.

Final Report – Other recommendations –
December 2018
Replacement of nearest relative role
• Being able to choose a nominated person at the point of assessment
for detention or during detention itself.
• There has been wide opposition to the current concept of the "nearest
relative" and widespread support for the proposition that the patient
should be able to choose their own "nominated person".
• This would replace the current system in which a nearest relative is
identified by an approved mental health professional (AMHP) based on
a statutory hierarchy of relatives, without reference to the person’s
choice.

December 2018
• The nominated person would have similar powers to the nearest
relative – to block detention for treatment, discharge a patient and
appeal to the tribunal where discharge has been blocked by the
responsible clinician. They would also have the right to be consulted –
not just informed, as at present – about renewal of a detention,
extension of a community treatment order or the transfer of the
patient from one hospital to another.
• Where a person lacked capacity to nominate a person, an AMHP would
identify the person most suitable as an interim nominated person,
based on guidance.

Final Report –Other recommendations –
December 2018
Four principle recommendations
Currently no principles on the face of the Mental Health Act. The Review
recommends adding principles to guide the way the Act is applied:
• Choice and autonomy – ensuring people’s views and choices are
respected & a move to a rights based MHA with patients being
supported to make more choices for themselves. Improving respect
and dignity, and ensuring greater attention is paid to a person's freely
expressed wishes and preferences. Restoring dignity to people and to
the system

December 2018
• Least restriction – ensuring the act’s powers are used in the least
restrictive way(concerns about rising levels of coercion within mental
health services). Recommends that police cells are no longer used as a
Place of Safety for anyone of any age. That means that, where they do
not currently exist, health-based places of safety would need to be
commissioned.
• Therapeutic benefit/Beneficial purpose – ensuring people are
supported to get better so they can be discharged from the act with a
view to ending the need for coercion

December 2018
• Treating patients as individuals – ensuring people are viewed and
treated as rounded individuals
Unlike the current “guiding principles”, which are set out in the code of
practice under the MHA, these principles would be on the face of the new
act and professionals would be required to have regard to them.

December 2018
Strengthening people’s rights to challenge treatment decisions
• Recommends that the person – or a nominated person or independent
mental health advocate on their behalf – could request a SOAD after
14 days.
• Among other measures designed to strengthen patient choice and
autonomy, the review also recommends strengthening people’s rights
to challenge treatment decisions.
• Extending right to advocacy to informal patients

December 2018
More powers for tribunals
• Recommends that people should have the right to challenge their
treatment at a tribunal, with non-means-tested legal aid, replacing
the current situation where they would need to seek an expensive
judicial review.
• The tribunal, sitting with a single judge, would be able to require the
responsible clinician to reconsider their treatment decision or order
that a particular treatment Is not given where this had a
disproportionate effect on the person’s rights.

December 2018
• The review also recommended extending entitlement to an
independent mental health advocate (IMHA) to informal patients and
those in the community who are at risk of detention or have previously
been detained, in relation to drafting an ACD.

December 2018
Deprivation of liberty in the community
The review includes a recommendation (number 136) in relation to this
issue as follows:
“The Government should legislate to give the Tribunal the power to
discharge patients with conditions that restrict their freedom in the
community, potentially with a new set of safeguards.”

Connect with Rebecca Fitzpatrick
rebecca.fitzpatrick@brownejacobson.com
+44 (0)330 045 2131
Thank you

Mental health, capacity and deprivation of liberty case law update, February 2019

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