Notable Cases

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 1^st 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

by Bison Solicitors

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.

by Bison Solicitors

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.

Summary:
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

by Bison Solicitors

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

INTRODUCTION

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.

GUARDIANSHIP UNDER THE MENTAL HEALTH ACT

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]

DEPRIVATION OF LIBERTY FOLLOWING CHESHIRE WEST

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.

THE RESTRICTIONS ON THE DISCRETION AND GA v BETSI

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 BEFORE THE FIRST TIER TRIBUNAL

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.

THE APPEAL TO THE UPPER TIER

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.

JUDGE JACOBS’ DECISION

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]

ANALYSIS

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]

by Bison Solicitors