Sexual Relations, Capacity, and Consent: The Supreme Court’s Ruling

Sexual Relations, Capacity, and Consent: The Supreme Court’s Ruling

On 24th November 2021, the Supreme Court handed-down its judgment in the case of A Local Authority (Respondent) v JB (by his Litigation Friend, the Official Solicitor) (Appellant).[1]

JB, the subject of proceedings, was at the time of the judgment a 38-year old man who had been living in a supported residential placement since 2014. He was formally assessed in 2011 as having an Autistic Spectrum Disorder, namely Asperger’s syndrome. Proceedings were commenced in the Court of Protection by the Respondent Local Authority, seeking declarations as to JB’s capacity in various matters.

The issue to be determined by the Supreme Court was ‘To have capacity to decide to have sexual relations with another person, does a person need to understand that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity?’[2]

The Supreme Court answered that question in the affirmative, dismissing the appeal. The judgment represents a confirmation of a development in case law, made when the matter was before the Court of Appeal. At first instance in the Court of Protection, the relevant decision had been cast as ‘…capacity to consent to sexual relations’.[3] The Court of Appeal re-cast this decision as ‘capacity to… engage in sexual relations’.[4] The Supreme Court accepted this re-casting as embracing both ‘…P’s capacity to consent to sexual relations initiated by the other party, and … P’s capacity to understand that, in relation to sexual relations initiated by P, the other party must be able to consent to sexual relations and must in fact be consenting, and consenting throughout, to the sexual relations.’[5]

The Supreme Court therefore went on to hold that, in terms of JB, the evaluation of his capacity to make the decision in question was in the matter of his engaging in (rather than consenting to) sexual relations. Information relevant to such a decision (in reference to s.3 (4) Mental Capacity Act 2005) includes the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity.

The Supreme Court did not make a final declaration as to JB’s capacity to make a decision to engage in sexual relations, considering that because relevant information was not fully considered or analysed during the hearings in the case, it was inappropriate to do so. The case will therefore be remitted for final declarations in light of the Supreme Court’s judgment.

[1] [2021] UKSC 52.

[2] (last accessed on 25/11/2021).

[3] [2019] EWCOP 39, per Roberts J, at paragraph 4.

[4] [2020] EWCA Civ 735, per Baker LJ, at paragraph 93.

[5] Supra, no. 1, at paragraph 90.


Written by Phillip Jones of Bison Solicitors

NHS Trust changes its Coronavirus visits policy following legal challenge

NHS Trust changes its Coronavirus visits policy following legal challenge


Our very own Stephanie Oxley has been representing the mother of a young man detained under s.3 Mental Health Act 1983 in a hospital run by Hertfordshire Partnership University NHS Foundation Trust. The young man has autism, learning disabilities and anxiety. He was detained in the hospital over 2 years ago. The local authority is in the process of arranging a community placement for him, and all parties are working for him to be discharged in the next month.

The young man’s parents have visited him twice a week in hospital since he was admitted, some 27 months ago. Invoking the Coronavirus pandemic, on 15 March 2020, the Trust banned the parents from visiting their son, who has been assessed as having capacity to make decisions about contact.

Since then, the young man has been able to telephone his parents roughly twice a week. He had not previously communicated with his parents via telephone. The parents noticed that their son found it difficult to communicate with them on the phone. They believed that their son was becoming distressed by not having any face-to-face contact and that his behaviour was becoming more agitated and challenging, such that it may jeopardise him being discharged into the community. Via the telephone they could not see his face to gauge how he was feeling and provide emotional support and reassurance to him.

The Trust refused to arrange other means of communication, telling the parents that if they bought a mobile phone for their son, they would let him use it. The parents cannot afford to buy themselves or their son smart phones or tablets.

On 1 April 2020, Stephanie instructed Dr Oliver Lewis of Doughty Street Chambers to assist with challenging the Trust’s policy and guidance on behalf of her client. On 2 April 2020, a letter before claim was sent to the Trust informing it that an application for judicial review would be made unless the Trust either (i) provided the means to have virtual communications or (ii) allowed on-site visits with a 2-meter distance.

It was argued that the Trust’s policy of banning everything but telephone-only communication

  • breached the son’s and his parents’ rights under Article 8 European Convention on Human Rights (right to respect for private and family life, home and correspondence) because the policy was disproportionate to achieving the legitimate aim of reducing the risk of patients and staff being infected with Coronavirus; and
  • indirectly discriminated against people with disabilities (in particular people with autism and/or learning disabilities), because it placed people at a particular disadvantage compared with people without disabilities, contrary to s.19 Equality Act 2010.

On 8 April 2020 – the 10th anniversary of the Equality Act 2010 - the Trust confirmed it will:

  1. provide the young man with an iPad set up for Skype and Zoom; and
  2. amend its policy on visits to reflect its duty to facilitate the use of online communication between patients and their relatives.

Although it was argued that the detaining authority is under a positive duty to supply the smart phone or a tablet to both the young man and his parents so as to facilitate contact between them, the Trust has refused to provide the parents with equipment. In the meantime, the parents have borrowed an iPhone from a relative to be able to use Skype and Zoom.

Commenting on the litigation, the parents said, “Although online contact is not the same as visiting our son, we’re pleased that we will be able to see each other virtually, and we hope that this will help his wellbeing and mental health. We hope that other families do not have to take legal action before NHS Trusts amend their policies to take account of the needs of loved ones with autism or learning disabilities.”

Dr Oliver Lewis is clerked by Emily Norman: [email protected].

Liberty Protection Safeguards Scheme

Coronavirus, Contact, Liberty and Equality

Our Court of Protection Teams latest Human Rights Case - Coronavirus, Contact, Liberty and Equality.

This case is published here: -

Mr Justice Hayden, Vice President of the Court of Protection, yesterday, released his judgement on our application, which was brought to the High Court last week, in response to the Coronavirus pandemic. We asked that the court consider whether the blanket ban implemented by the care home is an infringement of our client’s Articles 5 and 8 European Convention on Human Rights (ECHR). Articles 14 and 15 ECHR were also discussed in considering derogation and duties under the Equality Act 2010, that being the duty to make reasonable adjustments. The application was brought by our client’s daughter in her capacity as litigation friend, on behalf of her 83 year old father who suffers with Alzheimer’s dementia and is profoundly deaf. Mr Justice Hayden has directed that care homes must ensure ‘effective communication’ with the family, and that care homes should use all creative options to achieve such effective communication. In this case, it was agreed that visits by the family should take place by way of them communicating with ‘P’ from outside of his bedroom window. At Bison Solicitors, we are passionate that during these unprecedented times that any unlawful infringements on a person’s Human Rights should be subject to challenge

Counsel was Alison Harvey of No5 Barristers' Chambers. The team from our CoP department was Stephanie OxleyKate Churchouse and Bethany Waldron.

Liberty Protection Safeguards Scheme

Supreme Court MM v Secretary of State for Justice [2018] UKSC 60, Bison acted for the Appellant.

In November 2018, the Supreme Court handed down its long-anticipated judgment in the case of Secretary of State for Justice (Respondent) v MM (Appellant) [2018] UKSC 60. The decision of the Supreme Court was that neither the First-tier Tribunal (‘FTT’ or the MHRT for Wales) nor the Secretary of State for Justice (‘SSJ’) are permitted to impose conditions of discharge which would amount to a deprivation of liberty (‘DOL’).

In effect, the decision meant that restricted patients who lacked capacity could still be discharged conditionally into a care plan that was so restrictive that it amounted to a DOL, so long as the DOL was properly authorised by the Court of Protection, but that those restricted patients with capacity could not be conditionally discharged into the same care plan. For restricted patients with capacity to decide on their care and support arrangements, the effect of the Supreme Court’s decision is that they cannot in practice be conditionally discharged if they require a care plan in the community that amounts to a DOL.

Following the Supreme Court’s decision, the findings of the Independent Review of the Mental Health Act were published. One of their recommendations was for the government to legislate to “give the Tribunal the power to discharge patients with conditions that restrict their freedom in the community”.  This was one of many recommendations not accepted by the Government.

In January 2019, the SSJ responded to the Supreme Court’s decision by issuing guidance on discharge conditions that amount to a deprivation of liberty.[1] Their guidance repeated that conditions that amount to a DOL will be unlawful, other than in cases in which the patient lacks the relevant capacity and the DOL is authorised. In cases of patients with capacity, they recommend that the Responsible Clinician requests authorisation for an extended period of section 17 leave so that the patient can leave hospital and reside in appropriate accommodation with the appropriate package of care. They would, all the while, remain liable to be detained under section 37/41.

Anecdotally, we have found that this approach has led to a number of issues, including (but not limited to):

  • the patient would remain “in limbo”, liable to be detained, but authorised to be away from the hospital for up to a year at a time. This is likely to have a psychological impact on the patient, but also an impact on care providers who require care arrangements to be predictable in the longer-term;
  • the patient remains an inpatient and so would theoretically not have access to housing benefit, which has a knock-on effect on the availability of accommodation; and
  • such an approach would require the local clinical commissioning group (‘CCG’) to fund both a hospital bed and a community placement, at great cost.

These problems will mean that a significant proportion of the inpatient population is at real danger of becoming stuck in the system. In cases where the treating team has identified that no further treatment is required in hospital, but in the long term the patient will require a DOL, for the patient’s or the public’s safety, the patient can no longer be lawfully conditionally discharged by the FTT/MHRT/SSJ, nor sent on extended leave.

Theoretically, it will be possible for the Secretary of State for Justice or the FTT/MHRT to grant a conditional discharge that does not impose a conditional discharge. However, a Tribunal panel is unlikely to agree to exclude a condition that imposes a deprivation of liberty if they believe that a DOL is necessary in order to protect the patient or the public.

Meanwhile, the High Court has dented the impact of the SSJ’s guidance on those lacking capacity. The SSJ set out their view that cases in which patients lacking capacity require a DOL would fall into one of two groups: those who require the DOL in their best interests (e.g. due to an inability to look after themselves), and those who require a DOL in order to protect the public. For the former, they suggest that seeking an authorisation under the MCA alongside a conditional discharge would be appropriate. For the latter, they suggest that the responsible clinician seeks authorisation for extended leave as with patients with capacity. In Birmingham City Council v SR; Lancashire County Council v JTA [2019] EWCOP 28, Mrs Justice Lieven DBE criticised the distinction made by the Secretary of State for Justice between the two groups above. The Court was “not convinced” that the distinction “stands up to close scrutiny”, given the significant overlap between the patient’s interests and the protection of the public. It is in the patient’s interests, the Court accepted, not to commit further offences or to place himself at risk of recall under the MHA  [paras 41-42].

We envisage, therefore, that there will be a rise in the number of cases of restricted patients challenging findings that they possess the relevant capacity, and the number of cases in which restricted patients with capacity apply to the Tribunal for an absolute discharge from the MHA so that they can lawfully offer their consent to such packages of care without the conditions of discharge or liability to be recalled to hospital. Ordinarily, the chances of a restricted patient obtaining an absolute discharge from the FTT/MHRT are slim. If the patient requires a DOL on discharge, it is likely that they have a psychiatric diagnosis and considerable needs and risks. To succeed in an application for absolute discharge, the FTT/MHRT must be satisfied not only that the patient no longer requires inpatient care, but also that it is not appropriate that they remain liable to be recalled.

Case summary by Charlie Barrass- Evans, A Law Society Accredited Mental Health Panel Member. Mr. Barrass-Evans was involved in the SC appeal and instrumental to our case appeal preparation at The Supreme Court.


For further information, get in touch with Bison mental health solicitors, call 01252 268 068 or complete our contact form.

Liberty Protection Safeguards Scheme

Liberty Protection Safeguards Scheme

An overview of the new Liberty Protection Safeguards scheme ("LPS"), set to come in to force in October 2020.

The Mental Capacity Act 2005 provides for situations where a person who lacks capacity can lawfully be deprived of their liberty within a care home or hospital setting. Associated case law provides the circumstances which amount to a deprivation of a person’s liberty.  At present the process for authorising the deprivation of a person’s liberty in those settings, is governed by the Deprivation of Liberty Safeguards (DoLS), a set of rules contained within Schedule A1 of the Mental Capacity Act 2005. However, now that the Mental Capacity (Amendment) Act 2019 has received Royal Assent and become law, this is all set to change.

The DoLS are due to be replaced by the Liberty Protection Safeguards (LPS) from 1st October 2020, at which point no new standard or urgent authorisations under the DoLS will be made. Existing authorisations will be permitted to continue until their expiry date, when a new authorisation under the LPS will then be required.

What are the Deprivation of Liberty Safeguards (DoLS)?

The DoLS are the rules which must be followed when an adult without mental capacity to consent to the arrangements for their care and residence (referred to as ‘P’) is deprived of their liberty. P is considered to be deprived of their liberty if they meet the following requirements:

  • They are under continuous supervision and control; and
  • They are not free to leave.

This is a test implemented by the Supreme Court in a case known as Cheshire West and is referred to as the “Acid Test”. If both elements of this test are met and P lacks capacity to consent to being deprived of their liberty, the relevant local authority, in their role as Supervisory Body, may make a standard authorisation in order to legally detain P in a care home or hospital.

When a standard authorisation is in force in relation to P a representative is appointed, called the Relevant Person’s Representative, whose role is to visit P regularly and consider whether they are objecting to their deprivation of liberty and whether it is in their best interests to make an application to the Court of Protection to challenge the standard authorisation. This person can be a family member, friend, or a professional advocate.

In circumstances where P is deprived of their liberty in a location other than a care home or hospital, no standard authorisation can be made by the Supervisory Body, who must instead make an application themselves to the Court of Protection in order to authorise P’s deprivation of liberty.

How are the LPS different from the DoLS?

There are three major differences between the DoLS and LPS regimes.

  1. The LPS can be used to allow the Responsible Body to authorise a deprivation of liberty in any setting. This means that the Court of Protection will no longer hear cases requesting authorisation for deprivations of liberty in the community, as these will now be able to be authorised by the Responsible Body in the same manner as a deprivation of liberty within a hospital or care home environment.
  2. Authorisations made under the Liberty Protection Safeguards Scheme will be portable and variable. Unlike standard authorisations under the DoLS, which are location specific and expire if P moves to a new placement, the LPS will allow the Responsible Body to vary an authorisation if it is reasonable to do so. This will mean that, for example, an authorisation can be granted for P to be deprived of their liberty in Care Home X, but P can then be moved to Care Home Y if the responsible body thinks it is reasonable to do so and no new authorisation will be required.
  3. The LPS will apply to 16 and 17 year olds, unlike the DoLS, which only apply to those aged 18 years and over. This will bring the law on deprivation of liberty into line with the rest of the Mental Capacity Act 2005, which (with some limited exceptions) applies to those aged 16 years and over.

When can a Responsible Body make an authorisation under the LPS?

A Responsible Body may only authorise arrangements that give rise to a deprivation of liberty when P lacks capacity to consent to the arrangements, P has a mental disorder with the meaning of section 1(2) of the Mental Health Act 1983, and the arrangements are both necessary to prevent harm to P and proportionate to the risk and seriousness of harm occurring.

When considering P’s capacity and whether they have a relevant mental disorder, the Responsible Body is permitted to rely on previous assessments if it is reasonable to do so. They are required to consult with a number of people before authorising the arrangements, unless they consider that it is not appropriate or practicable to do so. These include P, anybody named by P as somebody they would like to be consulted, anybody engaged in caring for P or interested in their welfare, any donee of a lasting or enduring power of attorney, any deputy appointed by the Court of Protection, any appropriate person and any independent mental capacity advocate (IMCA).

Before authorising the arrangements, the Responsible Body must also complete a pre-authorisation review, which must be carried out by a person who is not involved in the day-to-day care or treatment of P and does not have a prescribed connection with the care home in which P lives. This person can be either an Approved Mental Capacity Professional (AMCP) or another health or care professional which will be set out in the statutory guidance when it is available.

It is also permitted, in the case of arrangements proposed to take place in a care home and where P is aged 18 years or older, for the Responsible Body to decide that the care home manager should arrange the necessary assessments and evidence to present to the Responsible Body, which will then decide whether to make an authorisation on the basis of the information submitted.

What is an AMCP?

The role of AMCP – Approved Mental Capacity Professional – is a new role which is similar to that of a best interests assessor under the DoLS, but which expands upon that role. The government have indicated that all professionals who are currently eligible to be best interests assessors will be eligible to be AMCPs.

Local Authorities will be responsible for approving individuals AMCPs and ensuring that there are enough approved AMCPs for their local area. The government is expected to prescribe, by way of regulation-making powers, the criteria for approval of AMCPs and bodies that may approve their training, however these regulations are not yet in place.

The LPS requires that a pre-authorisation review must be done by an AMCP in the following circumstances:

  • When it is reasonable to believe that P does not wish to live or receive care or treatment at a particular place;
  • The arrangements proposed involve P receiving care or treatment mainly in an independent hospital; or
  • The Responsible Body refers the case to an AMCP who accepts the referral.

What is an IMCA?

An IMCA – independent mental capacity advocate – is an advocate who has been specially trained to support people who lack capacity to make important decisions for themselves, such as where they should live or whether they should receive medical treatment.

Under the LPS a Responsible Body has a duty to take reasonable steps to appoint an IMCA if P has capacity to consent to an IMCA being appointed and requests one. They must also do so if P lacks capacity to consent to the appointment of an IMCA, unless the responsible body is satisfied that it would not be in P’s best interests to be supported by an IMCA.

However, this duty does not apply when there is another appropriate person to support P, such as a family member or friend. An appropriate person must consent to being appointed to the role and it cannot be a professional, or somebody who is paid to care for or provide treatment to P. P must consent to the appointment of the appropriate person if they have capacity to do so, or if they lack capacity to consent the Responsible Body must be satisfied that it is in P’s best interests for the appropriate person to be appointed.

How long does an authorisation last?

Under the DoLS a standard authorisation cannot last more than one year and it cannot be renewed. At the expiry of a standard authorisation a whole new application and assessment process must take place before a new standard authorisation can be granted.

Under the Liberty Protection Safeguards Scheme an authorisation can be granted for an initial period of up to 12 months, after which it can be renewed for a second period of up to 12 months, and then for periods of up to three years at a time.

In order to renew an authorisation the Responsible Body must carry out consultations before renewal and be satisfied that the conditions for the authorisation are still met and that it is unlikely that there will be a significant change in P’s condition during the renewal period which may affect whether they continue to be met.

Authorisations must be reviewed regularly, and in particular:

  • before an authorisation is varied (or as soon as practicable after variation);
  • if a reasonable request is made by a person who has an interest in the arrangements;
  • if P becomes subject to mental health arrangements (as the LPS cannot be used for psychiatric treatment of a P who is detained under the Mental Health Act); or
  • if there has been a significant change in P’s condition or circumstances.

There is no formal process by which authorisations will be terminated under the LPS. An authorisation ceases if the Responsible Body believes or ought reasonably to suspect that the conditions are no longer met.

How can an authorisation be challenged?

In the same manner as an application can be made under s.21A of the Mental Capacity Act 2005 to challenge a standard authorisation under the DoLS, the LPS provides for P, their IMCA or their appropriate person to apply to the court to challenge an authorisation.

When such an application is made the Court of Protection can consider whether the Liberty Protection Safeguards Scheme apply to the arrangements in question, whether the conditions for authorisation are met, the duration of the authorisation and what the authorisation relates to. The Court of Protection can then vary or terminate the authorisation, or can direct the Responsible Body to vary it.

Further information about the new Liberty Protection Safeguards Scheme including preparation for implementation and details on the associated Code of Practice can be found here

By Lindsay Da Re

Solicitor - Human Rights & Court of Protection

CB v Medway Council

CB v Medway Council & Anor (Appeal) [2019] EWCOP 5 (6 March 2019)

CB v Medway Council & Anor (Appeal) [2019] EWCOP 5 (06 March 2019)

Kate Churchouse for Bison Solicitors acted for the appellant (CB) by her litigation friend the Official Solicitor in an appeal to a Tier 3 Judge of the High Court against a decision of a Tier 2 Judge in the Court of Protection within s.21A proceedings. The appeal considered the circumstances under which it is appropriate to give summary judgment in proceedings when a person's Article 5 rights are engaged.

The position of the Official Solicitor was that the Judge at first instance had erred by giving summary judgment at a directions hearing on 8 November 2018 without any prior notice to the parties and that her judgment was formed an opinion based on assumptions rather than evidence.

The argument put forward on behalf of CB was that while the judge had the authority to summarily dismiss the application, she incorrectly exercised the judicial discretion in a manner that was wrong and unjust. Mr Justice Hayden delivering his judgment allowed the appeal recording

“what is involved here is nothing less than CB’s liberty. Curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry. I cannot envisage any circumstances where it would be right to determine such issues on the basis of speculation and general experience in other cases.”

Bison Solicitors instructed Oliver Lewis of Doughty Street Chambers who represented CB at both the permission hearing and the appeal hearing.

Case Study: MM

We act for MM in his challenges to seek freedom from hospital detention under Mental Health Act. Following a decision of the Court of Appeal, MM (a client of Bison Solicitors) is seeking to take his case to highest court in the land – the Supreme Court. Bison acts for MM in his appeals.

Case background:
MM has previously been diagnosed as possessing mild learning disability and autistic spectrum disorder. Resulting behaviours include pathological fire starting, which in 2001 led to a conviction for arson. A criminal court imposed hospital order pursuant to s.37 of the Mental Health Act 1983 (MHA) and a restriction order under s.41 MHA. Although MM was conditionally discharged under s.73 of the MHA in 2006, his behaviour deteriorated and he was recalled to hospital in 2007.

Throughout, MM has possessed capacity regarding the question of whether liberty should be deprived and expressed his wish to agree to a lesser form of restriction than hospital whilst adhering to a strident care plan. The essence of MM’s case is that any deprivation of liberty would be lawful if he consented to it and that any condition imposed by a First-Tier Tribunal (FtT) requiring him to comply with a care plan would not in itself deprive MM of his liberty; although the terms of the care plan would.

Decision of the First-Tier Tribunal:
Despite the logic of MM’s case, the FtT did not discharge MM into the community. In making this decision the tribunal relied on RB v Secretary of State for Justice (RB) where the court refused to allow the FtT to impose conditions that deprived a patient of his liberty.

Decision of the Upper Tribunal:
MM was granted appeal of the FtT decision by the Upper Tribunal (UT). President of the Administrative Appeals Chamber of the UT, Charles J, applied Secretary of State for Justice v KC & Anor (KC) stating that a FtT does in fact jurisdiction to impose conditions on a conditional discharge that involve a deprivation of liberty, and that a patient with capacity could give valid consent to such conditions. The Secretary of State appealed this decision to the Court of Appeal.

The Court of Appeal’s decision:
The Court of Appeal disagreed with Charles J, favouring the position of the Secretary of State who argues that the scope of RB is ‘plain’ and the tribunal has ‘no power’ to impose a condition of a conditional discharge that is an objective deprivation of the patient's liberty. This position appears to conflict with the stance of the ECtHR who have previously held that if a person has validly consented to his confinement, there can be no deprivation of liberty. This conflict in authority between RB and KC is hopefully an issue the Supreme Court can clarify. Such clarification would ensure the courts are adhering to their responsibilities under s.3 of the Human Rights Act 1998 (HRA).

Human rights principles:
Before considering further why MM has reached the Supreme Court and the nature of the arguments our counsel may put forward, it is important to note the human rights issues at the heart of the case. Article 5 of the European Convention on Human Rights (ECHR) provides that no one should be deprived of his liberty save for few exceptions, including the lawful detention of persons of unsound mind.

The landmark case Cheshire West lowered the threshold regarding what constitutes a deprivation of liberty pursuant to Article 5 of the ECHR. Cheshire West established three key components to identifying a deprivation of liberty, namely:

1. The presence of an objective deprivation of liberty for a not negligible length of time;
2. The subjective element of lack of consent; and
3. The deprivation of liberty is imputable to the state.

One must bear in mind that in cases such as MM, it is the human rights of the patient upon which legal argument surrounds. Article 34 of the ECHR (and s.7 of the HRA) states that only the person who can challenge a public body on human rights grounds is the victim of the breach. Therefore if that persons opts not to complain, not even the Secretary of State can rely upon human rights arguments when challenging the decision of the tribunal. This is perhaps a criticism one can make of the Court of Appeal’s decision to rule in favour of the Secretary of State in MM.

Potential grounds for appeal to the Supreme Court:
In addition to the RB/KC conflict, one must also hope that the Supreme Court can directly address the key issue in MM’s case. This issue is that on one hand MM wishes to be discharged into less restrictive environment yet the court will not allow this on the grounds that doing so means MM must be subject to a care plan which will constitute a deprivation of liberty. Consequently, MM is denied greater freedom because imposing conditions (to which MM consents) would breach his rights under Article 5 of the ECHR. Such rigid application of human rights detriments MM’s Article 5 rights by enforcing an unnecessary and unjustified extension of his detention in hospital. Additionally, it may also constitute a breach of the court’s duty to give effect to domestic legislation in a manner which is compatible with Convention rights.

Our counsel may put forward that there are a number of problems with the courts’ rigid application of human rights. Firstly, it assumes that any conditions the tribunal would attach to MM’s community care plan would give rise to an unauthorised deprivation of liberty. However, s.73(4)(b) merely states that a patient has a duty to comply with the conditions and there is no mechanism for enforcing this duty. Therefore any condition requiring MM to live in a specific location, or be accompanied by someone at all times when he leaves this location, cannot give rise to an enforceable legal obligation on MM to comply with such a duty and thus cannot deprive him of his liberty.

In RB the tribunal rejected the notion that if a patient lawfully consents to such unenforceable conditions, a deprivation of liberty cannot be present. This is because they did not deem the patient’s consent as ‘unfettered consent.’ Our counsel may expose a number of reasons why this approach appears wrong in principle. Firstly, the fact that an individual has only a set of unattractive options to choose from does not, in law, mean that his freedom of choice is negated. The analogy of a person opting to risk having dangerous surgery or leave their condition to worsen and potentially lead to their death is a way of highlighting this point. In such instances, the absence of attractive options does not invalidate a person’s right to consent to an unattractive option. Article 8 of the ECHR indicates that the state has a duty to respect the private life (and therefore the autonomy) of every individual. Human rights apply universally and are inalienable (see Cheshire West) thus meaning that the human rights provisions apply equally to those detained under the MHA. It is very difficult to see how refusing to acknowledge that a patient has the right to give consent to abide by a set of (unenforceable) conditions can be compatible with Article 8 of the ECHR.

It will ultimately be for the Supreme Court to settle the RB/KC conflict and determine whether MM can consent to a strident community care plan. So far, the reluctance of the courts to set such a precedent is based on issues of fluctuating capacity and the scenario that a patient simply changes his mind regarding compliance with any conditions attached to a care plan. However, one must remember that a patient who opts to break the conditions of his discharge will do so with the knowledge that this may lead to him being recalled to hospital. These circumstances are applicable regardless of whether a patient is being deprived of their liberty by the conditions or not.

1[The Secretary of State for Justice v MM [2017] EWCA Civ 194
2[2012] 1 WLR 2043
3[2015] UKUT 0376 (AAC)
4[The Secretary of State for Justice v MM [2017] EWCA Civ 194 at para 21
5[see Stanev v Bulgaria (2012) 55 E.H.R.R. 22
6[Cheshire West and Cheshire Council v P [2014] AC 896

Case Study: NL, mental health act

Case Study: NL

Case Note on NL v Hampshire County Council [2014] UKUT 475 (AAC) (21 October 2014) in which Bison Solicitors acted for the Appellant

NL v Hampshire County Council: another overly restrictive interpretation of the Mental Health Review Tribunal’s discretion to discharge?

Case Note on NL v Hampshire County Council [2014] UKUT 475 (AAC) (21 October 2014) in which Bison solicitors acted for the Appellant


Section 72 of the Mental Health Act 1983 provides the discharge criteria relating to individuals detained under the Act. It lays down the circumstances in which the Tribunal ‘shall direct the discharge’ of certain subjects of the Act where the statutory criteria for detention are no longer made out, but leaves the discretion to the Tribunal to discharge a patient ‘in any case’. This latter power, however, is not regularly employed. In fact, its application has been extremely limited. The cases of GA v Betsi Cadwaladr University Local Health Board[1] and SH v Cornwall Partnership NHS Trust[2] demonstrate that, hitherto, the Upper Tribunal has restricted the power to exceptional circumstances only. NL v Hampshire County Council[3] presented the opportunity to obtain a judgement from the Upper Tribunal on the application of the power to Cheshire West[4] cases where the patient is subject to a guardianship, which is an issue that was yet to be explored by the courts.

I aim to provide here an analysis of NL v Hampshire and the issues arising therefrom. Firstly, I will outline the relevant law before moving on to the specific issues raised by Bison Solicitors and counsel in NL.


The Mental Health Act 1983 provides a framework of measures that can be implemented against a patient’s will. These include detention for assessment,[5] detention for treatment,[6] and police powers to transfer subjects suspected to have a mental illness to a place of safety.[7] Another measure – which is one of the focal points of this case – is a guardianship order. Such an order can be made under section 7 of the 1983 Act. The purpose of a guardianship order is to allow for patients to receive care in the community in the least restrictive environment necessary. As the Code of Practice puts it, they provide an ‘authoritative framework for working with a patient, with a minimum of constraint, to achieve as independent a life as possible within the community’.[8]

Section 8 allocates certain powers to the guardian, to: (a) require that a patient lives in a certain place; (b) require that the patient attends specified locations for treatment, occupation, education or training, and (c) require access to be allowed by a doctor, Approved Mental Health Professional (AMHP) or other specified person. Any guardianship order should, according to the Code of Practice, be accompanied by a Care Plan,[9] which should comprehensively outline the restrictions imposed upon the patient.

The Code of Practice makes clear that ‘[t]he power to require patients to reside in a particular place may not be used to require them to live in a situation in which they are deprived of liberty’.[10] It also states that the power of a guardian to require that a patient lives in a certain place cannot be used to prevent the patient from coming and going to such an extent that they are effectively detained.[11] This, also, is the position of the law. If the guardianship and care plan amount to a deprivation of the subject’s liberty, that will be unlawful unless the patient consents to it or the care plan is properly authorised under the Mental Capacity Act 2005. In the absence of these factors, the deprivation of liberty is not in accordance with a procedure prescribed by law and thus is a violation of the individual’s rights under Article 5(4) of the European Convention on Human Rights.

The Mental Capacity Act, therefore, can be used to authorise a deprivation of liberty contained within the care plan of a patient who lacks capacity. The Code of Practice stipulates that it is within the care plan’s details that the ‘potential for restriction, supervision and control sufficient to amount to a deprivation of liberty lies’.[12]


The measures imposed upon a patient under a guardianship order and its accompanied care plan can be very restrictive. As such, there are valid concerns over whether a patient has been subject to a deprivation of his/her liberty; something that is protected by Article 5 of the European Convention on Human Rights, subsequently implemented by the Human Rights Act 1998. As with any derogation from the UK’s obligations under the Act, a deprivation of liberty must only take place in accordance with a procedure prescribed by law.

But, what exactly constitutes a “deprivation of liberty”? This question was comprehensively addressed in Cheshire West,where it was famously held that a deprivation of liberty is constituted of the following three elements: (i) an objective component of confinement in a particular restricted place for a not negligible length of time; (ii) a subjective component of the lack of consent, and; (iii) the attribution of responsibility to the State.

Whether there has been a deprivation of liberty will depend on a holistic examination of the patient’s circumstances. As Lord Bingham stated in Secretary of State for the Home Department v JJ and Others, ‘there may be no deprivation of liberty if a single feature of an individual’s situation is taken on its own but the combination of measures considered together may have that result’.[13] The whole situation of a patient must therefore be taken into account when examining whether there has been a deprivation of his liberty, by the combination of measures which he is subject to.


As already mentioned, the scope of the power of discretionary discharge has recently been addressed in GA. In that case, the applicant was subject to a Community Treatment Order (CTO), and had withheld his consent in relation to his treatment plan. In the absence of capacity, the CTO would constitute an unlawful deprivation of liberty. Jacobs J presided over the Upper Tribunal. In declining to exercise the discretion to discharge, he employed the following line of reasoning:

  • The discretion to discharge becomes relevant only when the discharge criteria in section 72 are not fulfilled;
  • The Tribunal is therefore acknowledging the patient’s needs for protection and treatment;
  • In deciding that the patient should be discharged in spite of acknowledging these needs would be ‘self-contradictory and perverse’ if they were not satisfied that these needs would be met following the discharge.[14] The Tribunal therefore could not discharge unless it was satisfied that the patient lacked capacity and would be treated under the Mental Capacity Act. To direct discharge in the absence of these factors, the Tribunal would ‘act inconsistently with the logic of its reasoning the patient requires treatment’.[15]

In this case, the Court of Appeal refused permission to appeal against the decision of the UT. The CA held in so doing that this did not leave the applicant without remedy. In the case that treatment is administered without consent, the applicant’s remedy lay with an application to the court, whereas if it was found that due to the absence of consent appropriate treatment could not be administered in the community, the appropriate recourse was for the patient to be recalled to hospital under the terms of the Order.

But where does this leave the discretion to discharge? To say that the Tribunal shall only discharge when appropriate care and support is available in the community is to render the discretion obsolete, given the discharge criteria in section 72 and the least restrictive principle in the Code of Practice. Does the decision in GA leave the Tribunal in a position in which they are forced to choose the patient’s needs over their liberty? NL v Hampshire was anticipated by the Bison Solicitors as the perfect opportunity to allay these uncertainties and to clarify the impact of Cheshire West. Thus, the expertise of Roger Pezzani of Garden Court Chambers was sought.


NL was subject to a guardianship order pursuant to sections 7 and 8 of the Mental Health Act 1983 (as amended). He suffered from mild-to-moderate learning disability, which affected his perception of social norms, his ability to learn new skills, and made him egocentric, amongst other things. He had a forensic history as a result. His guardianship was therefore accompanied by a detailed care plan which made him subject to constant monitoring and control.

He was unable to leave the home without close supervision, escort staff were directed by the Care Plan never to be more than an arm’s length away from NL, his home was fitted with door and window alarms without his permission, and he was not allowed to leave his home during certain hours of the day; he was a prisoner in his own home. It was clear to Bison Solicitors that NL had been deprived of his liberty and thus he was subjected to unlawful conditions. However, given that it was the guardianship that was felt to be the cause of the deprivation, Bison Solicitors deemed it appropriate as an issue that could be challenged before the Tribunal rather than the High Court.

Both the applicant and Hampshire County Council (HCC) were represented by counsel before the Tribunal. Prior to the hearing, counsel for HCC had conceded that NL had been unlawfully deprived of his liberty. In light of this concession by the HCC, both sides put forward a joint proposition that no oral evidence be heard. Rather, they were to treat the case as a purely legal dispute on three major presuppositions: (i) that NL possesses capacity to decide where to live; (ii) that the measures amounted to a deprivation of liberty according to the Cheshire West criteria, and; (iii) the patient met the criteria for guardianship under section 7. Judge Austin expressed uncertainty over the first of those, but nonetheless agreed to treat the case in this manner, turning down the opportunity to hear oral evidence. The hearing therefore was limited to submissions on the legal argument concerning these assumptions and the power of the Tribunal to exercise discretion to discharge in such cases. Hampshire County Council was represented by Parishil Patel, who was of the opinion that the Tribunal was bound by the judgement in GA and cannot and should not employ the discretion to discharge the guardianship. The matter, he argued, was one to be presented before courts other than the Tribunal.

Mr Pezzani argued that the guardianship order and the accompanying care plan are so closely intertwined that they must be treated as one and the same. Thus, to separate them and accept that it is the care plan only that is causing the deprivation of liberty is absurd. The implications of this point should not be underestimated. Indeed, if the two can be separated – given that it had been conceded that NL did meet the statutory criteria for a guardianship order – then the patient’s recourse arguably should never have been the Tribunal, whose jurisdiction is limited to the Mental Health Act. This is reminiscent of the remarks made by Jacobs J in SH that

‘I have read the parties’ submissions on consent and spent some time thinking about them. I have decided to resist the temptation to set out my conclusions on the ground that they are outside my jurisdiction. It is sufficient to say that my decision does not leave patients who do not consent without protection. There is ample protection for them under the Act. It is just that the judicial oversight of those provisions is not vested in the First-tier Tribunal.’[16]

On the other hand, if the guardianship order and the care plan are considered one and the same, the entire package of care (and thus the cause of the deprivation of liberty) falls within the jurisdiction of the First Tier Tribunal, as it is within their duties to review – and consider discharging – the guardianship order. If the Tribunal were, in such an instance, to endorse the Guardianship order by failing to discharge it with their discretion, they would be upholding the unlawful care plan with the same action. This, Mr Pezzani argued, would be a breach of the Tribunal’s duty under section 6 of the Human Rights Act not to act in a way that is incompatible with an individual’s rights under the Convention. In line with Lord Bingham’s aforementioned judgement JJ and Others, the Tribunal are bound to consider the whole situation of the individual in determining whether they have been deprived of their liberty.

Austin J was not convinced, and the First-Tier Tribunal opted not to use their discretion to discharge the guardianship. In so doing, the judge relied on Jacobs J’s judgement in GA, stating that ‘in the absence of convincingly cogent evidence as to what would happen if [they] were to discharge the guardianship it would be irresponsible to do so’.[17] Austin J was also satisfied with the decisions in GA and SH that the patient’s remedy lies elsewhere in cases such as this. If the patient does have capacity and withdraws consent, the Judge argued, he can appear before the courts to have his care plan amended. If he does in fact lack capacity, then he or the Responsible Authority could apply to the Court of Protection under the Mental Capacity Act.[18] Austin J argued that if the Tribunal has no power over the implementation of the guardianship, it would be illogical to censure the guardianship and declare the whole thing illegal,[19] especially in circumstances where it is not clear how the protection and treatment needs are to be met.


Mr Pezzani, acting on instructions from Bison Solicitors, drafted the appeal to the Upper Tier. Firstly, he argued, the FTT judge erred by refusing to accept that it was required to take account of the applicant’s whole situation. NL had been forced by the guardianship to live in a situation in which he was deprived of his liberty unlawfully. The Code of Practice had been cited in the FTT in relevant sections where it is very clear that guardianship cannot force a person to live in a situation in which they are deprived of their liberty, or one which amounts to an effective detention.

Secondly, Mr Pezzani argued that the Tribunal had erred in abdicating its duty under section 6 of the Human Rights Act 1998 not to act in a way that is incompatible with an individual’s rights under the Convention. The FTT is not, as the judge seemed to have asserted, excused of its duty merely because there are alternative remedies in other courts.

Mr Pezzani also challenged the Tribunal’s decision insofar as it (at least) partially grounded its decision on the absence of cogent evidence as to what would happen had they discharged the patient. Mr Pezzani argued this on two grounds: firstly, such information was contained in the Social Worker’s report, and the Tribunal had the right to hear oral evidence from him regarding this if they were so minded; secondly, R (TF) v Secretary of State for Justice[20] acts as precedent for the proposition that an unlawful detention is not rendered lawful because of the undesirability of the alternatives. Its duty in such circumstances is clear: to discharge the patient and uphold their rights under Article 5(4) of the Convention. As such, GA andSH could not stand as authority for the FTT to act in a manner which breaches its duty under section 6 of the Human Rights Act.

He tried to avoid the judgement in GA in two further ways. One such way was by distinguishing the facts of the case to argue that it did not apply to NL’s application – for, GA concerned a CTO and (qualified) rights under Article 8, whereas NL’s claim concerned a guardianship and the absolute right under Article 5(4). Nonetheless, the decision in GA allows for discretion to be exercised in ‘exceptional circumstances’. Mr Pezzani argued that even were GA to apply to the situation at hand, the facts of the case fell within that bracket.


On 4 July 2014, permission was granted for Bison Solicitors to apply to the Upper Tribunal. The First Tier declined to review its own decision.

First, it is worth noting Judge Jacobs’ involvement in the line of cases hitherto. He presided not only over SH, but also over GA itself. This should be borne in mind when considering the fidelity that the upper tribunal paid to those previous decisions.

Jacobs J accepted Mr Patel’s submission (and therefore the decision of the FTT) that it was not the guardianship that caused the deprivation of liberty, but rather the care plan itself. Therefore, the appropriate challenge would be in the courts. In so doing, the Judge disagreed with Mr Pezzani that the guardianship was the “force” that caused the deprivation, and that the two could not be examined separately. Jacobs J considered that it was ‘difficult to imagine a case’ that could realistically arise where the powers of guardians in section 8 MHA could be used in a way that would satisfy the conditions for a deprivation of liberty as defined in Cheshire West.[21] Jacobs J went on to argue that guardianship ‘does not exist for its own sake’. Rather, he asserted, it provides the basic framework of compulsion, and it is in the accompanying Care Plan that the potential for a deprivation of liberty exists.[22] Jacobs J refused the appeal on this ground.

However, he went on to consider the application of his judgement in GA. He held that the First Tier Tribunal was right to apply his reasoning in that case to the one at hand. He could not accept Mr Pezzani’s submissions that the decision should be distinguished, and refused to depart from the First Tier insofar as he held that ‘[g]iven the importance of the welfare of those suffering from a mental disorder and of the need for the protection of other persons, it is difficult to imagine a case in which the Tribunal could properly exercise its discretion without there being appropriate safeguards to ensure the necessary treatment and protection’.[23]


For a practitioner attempting to make sense of the purpose and scope of the Tribunal’s discretionary discharge power, this is a difficult decision to swallow. Perhaps further research into the Mental Health Act’s passage through parliament would provide useful, but at this stage it is extremely difficult to decipher any meaningful purpose of the discretion if it is limited to those cases in which the needs for treatment and protection are met elsewhere.

In this factual context, there is certainly room to doubt Jacobs J’s (perhaps hasty) judgement that it was the care plan itself that caused the deprivation of liberty in such cases and not the guardianship. There are two essential elements of a deprivation of liberty, which are a lack of freedom to leave a place and being under continuous supervision and control. As Mr Pezzani stated in his advice supporting an appeal to the Court of Appeal, the guardianship clearly provides the first of these requirements; the care plan the second. This is the foundation of his argument before Jacobs J: that the guardianship was the “force” that caused the deprivation of liberty. Jacobs J considered it difficult to imagine a case in which the conditions of a guardianship order as per section 8 could result in a deprivation of liberty. On the contrary, Mr Pezzani asserted, it is the guardianship that implements the element of compulsion to a situation in which there is a deprivation of liberty. A situation in which the second requirement of a deprivation of liberty is present (continuous supervision and control) is not a deprivation of liberty when the first requirement is not present, i.e. when the patient is free to leave that situation of control. There is certainly no fault in this logic: indeed, it is the locked doors of a prison that cause an individual to be deprived of their liberty, not merely the conditions found therein.

The other reason that this decision is hard to swallow is that it leaves the discretionary power to discharge in an extremely uncertain and limited position. The judgement by the Upper Tribunal seemed to disregard the examination of the Tribunal’s duty under section 6 not to act in a manner that is incompatible with convention rights (a discussion that was prevalent before the FTT). R (TF) makes clear that whether a situation is an unlawful detention does not depend on the alternatives available. By asserting that alternative arrangements must be available (under the MCA or otherwise) is misconstruing the Tribunal’s duty under section 6.

Bison Solicitors looks forward to the next opportunity that is presented to address this question once more. For the necessity of clarity and certainty, the Court of Appeal must take a stance on this issue and provide an authoritative judgement to refine the scope of this now-so-uncertain discretionary power. For, as it stands, it is difficult to argue anything other than that this power is now redundant.

Charlie Barrass-Evans
Bison Solicitors
August 03, 2015

[1] (2013) UKUT 280 (AAC)
[2] (2012) UKUT 290 (AAC)
[3] (2014) UKUT 475 (AAC)
[4] P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents);P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) [2014] UKSC 19
[5] Section 2
[6] Section 3, inter alia
[7] Section 136
[8] Para 26.4. All references to the Code of Practice relate to the 2014 version, which was in force at the time of the Upper Tier Judgement in NL
[9] Para 26.19
[10]Para 26.30
[11]Para 26.29
[12]Para 26.19
[13][2007] UKHL 45, [16]
[14] [22]
[15] [17]
[16] [18]
[17] [42]
[18] [24]
[19] [39]
[20] [2008] EWCA Civ 1457
[21] [16]
[22] [17]
[23] [20]