When can a mental health patient lawfully remain in the community, rather than in hospital, but be deprived of their liberty there? In 2018, the Supreme Court in MM held that a restricted patient cannot be discharged from hospital under the MHA 1983 on conditions that amounted to a deprivation of liberty. The – sometimes odd – consequences of this decision continue to be felt, and have fallen again to be considered by Lieven J in Cumbria, Northumberland Tyne & Wear NHS Foundation Trust & Anor v EG  EWHC 2990 (Fam). As identified at the outset of her decision, the issues she had to consider were:
- Whether s.72 MHA can be construed to allow the detention of a restricted patient in a community setting pursuant to s.17(3) MHA where that person has not resided in, or been treated by, a hospital for a considerable period of time; and
- If it cannot, either by purely domestic statutory construction, or by recourse to the HRA 1998, can the same result be achieved by operation of the High Court’s inherent jurisdiction?
As is the case in a number of the post-MM cases, EG’s case concerned someone who had been conditionally discharged from hospital, whom it was considered by the clinical team and the Secretary of State (1) should remain in the community; (2) subject to conditions amounting to a deprivation of liberty; and (3) who had capacity in the relevant domains. He was therefore subject to a ‘technical’ recall by the Secretary of State – i.e. he was not actually required to return to hospital, but was immediately placed on s.17(3) MHA 1983 leave. He was automatically referred to the Mental Health Tribunal in consequence of his recall. The Tribunal found that there was no element of treatment in hospital at all, and, indeed, his team were actively avoiding a readmission to hospital because they thought it would bring about a deterioration in his mental state. It therefore felt it had no choice but to discharge EG because the criteria under s.72(1)(b)(i) were not met, even though this did not serve the interests of any party (including, it considered, EG) or the public. The Trust and the Secretary of State were granted permission to appeal, and Lieven J heard the appeal both as a judge of the Upper Tribunal (to consider the MHA construction point) and of the High Court (to consider the potential use of the inherent jurisdiction).
Lieven J held that it was not possible to conclude, applying domestic principles of construction absent s.3 of the Human Rights Act 1998, that the Tribunal erred in law:
52. In EG’s case he does not need to be detained in hospital for treatment. He has been receiving treatment with no connection whatsoever to a hospital for 7 years. The evidence shows that being in hospital, even as an out-patient, is positively counter-therapeutic for EG. As such, it is not merely that his treatment has no significant connection with hospital, rather it had and has, no connection at all. It is true that since his technical recall, his treatment has been supervised from hospital. But that is not because it is appropriate for him to be liable to be detained in a hospital for medical treatment, it is because that is the only way he can be deprived of his liberty after the Supreme Court’s decision in MM. Therefore, the liability that is being created is not because his mental disorder makes it appropriate for him to be detained in hospital for treatment.
53. In my view, the FTT applied the caselaw impeccably. They did not confuse the tests under s.20 and s.72. They applied that caselaw to the facts of EG’s case and the evidence that not merely did he not need to be in hospital for treatment, but that it was actually harmful for him to receive treatment in hospital. It is noteworthy that in all the cases where the s.72 test was met, the patient was receiving some treatment in hospital, including some visits to hospital. For these reasons, in my view there was no error of law in the Tribunal’s analysis of s.72, absent applying s.3 of the Human Rights Act.
Lieven J therefore turned to consider whether the HRA came to the rescue, in circumstances where everyone before her agreed that she should seek to avoid the outcome by which EG would be forced to return to hospital. On the specific facts of his case, she was satisfied that there would be a breach of Article 5(1)(e) ECHR if EG was forced to return to hospital:
64. […] The evidence is entirely clear that it is strongly against his therapeutic interests for him to be treated in hospital, even by going there as an outpatient. As the FTT record at paragraph 32 of its decision, the clinical team have been actively avoiding readmitting EG because it would bring about a deterioration of his mental health. This is not a situation where the State cannot meet EG’s therapeutic needs because of lack of resources, or the way services are organised. An appropriate therapeutic milieu is available, but the law, as construed above, does not allow EG to be detained there.
65. I accept Ms Butler-Cole’s broad proposition that Rooman does not require a person to be detained in the least intrusive way. The focus of paragraph 208 is on the situation where a person’s detention is being justified under Article 5(1)(e), but they are not receiving suitable therapy. Here, the evidence shows that in hospital EG would not be being given suitable therapy, however broadly one interprets that phrase. The situation EG would find himself in if he was returned to hospital would fall within the terms of  of Rooman.
66. Ms Paterson now seeks to rely on Article 5(1)(a) [i.e. on the basis that any deprivation of liberty followed a conviction of a competent court. Therefore, the detention would be justified on the basis of risk to the public, not therapeutic benefit.] That reliance does not in my view work in law. The detention of EG is under s.72 of the Mental Health Act. He was made subject to a s.37/41 MHA order in January 1994 and was conditionally discharged to The Care Home by the FTT in April 2004. It is not now open to the Secretary of State to say that the tests in the MHA do not apply and the Court should consider the matter under Article 5(1)(a) instead.
Lieven J therefore asked herself whether she could interpret s.72 MHA 1983 so as to prevent a breach of EG’s Article 5 ECHR rights, and found that she could:
69. A Convention compliant outcome on the present case is one that allows EG (and others in his position) to be made lawfully liable to a deprivation of their liberty when they are in the community, so that there is no breach of Article 5(1)(e) as construed above. Mr Mant argues that to allow a restricted patient to be deprived of their liberty in the community on long term s.17 leave, without any part of their care plan involving treatment in hospital, is possible without straining the legislation beyond that permitted in Gilham.
70. In my view it is possible here to adopt the same logical approach that was taken in Gilham. The natural construction of s.72(1(b)(i) is that set out above. However, that leads to a Convention non-compliant outcome as I have explained. It is therefore possible to read the sub-section that makes “liable to be detained” mean liable in law to be detained for treatment, even where that treatment is being provided in the community, so long as it could lawfully be provided in hospital.
71. In my view, such a construction would not go against the grain of the legislation. The grain of this part of the statute might be said to be two-fold. Firstly, to allow the patient to be detained in a less restrictive setting, and secondly, to ensure that the protection of the public and an appropriate level of detention can be met. By construing the sub-section in this way, both purposes are met.
73. It is important to bear in mind that the very nature of the s.3 exercise is that the court is reaching an interpretation which does not accord with the meaning of the statute applying normal domestic canons of construction. The caselaw makes clear that is a broad power which allows something very close to re-writing as long it does not cut across “the grain”.
74. It is therefore possible to construe s.72 as to not require the Tribunal to discharge, even where the link to the hospital is tenuous (as here), where such a construction is necessary in order to avoid a breach of Article 5. I will leave the parties to formulate a declaration that achieves this effect.
Having reached this conclusion, Lieven J did not strictly need then to consider the question of whether (as a High Court judge) she could or should use the inherent jurisdiction. However, as she had been addressed fully upon it, and the issue was an important one, she set out her (obiter) conclusions. After a detailed review of the (contradictory) authorities, she expressed the very clear view that the jurisdiction does not extend to depriving a person with capacity of their liberty for two fundamental reasons.
90. [….] Firstly, whether under Article 5 or the common law, the right to liberty is jealously protected and should only be removed in carefully understood and constrained circumstances. This has recently been reflected by the Grand Chamber in Ilnseher v Germany(Application No 10211/12)  MHLR 278, drawing together dicta from earlier decisions of the court, stated (at para 129):
“the permissible grounds for deprivation of liberty listed in article 5(1) are to be interpreted narrowly. A mental condition has to be of a certain severity in order to be considered as a ‘true’ mental disorder for the purposes of sub-paragraph (e)”
91. Although the legal issue being considered in Ilsenher at  concerned the scope of the grounds for lawful deprivation of liberty under Article 5, the underlying point that Article 5 rights have to be carefully protected, and any interference with those rights must be strictly construed, are relevant to the issue before me. The problems outlined by the Grand Chamber in HL v United Kingdom in respect of the lack of clear principles and appropriate legal safeguards to the use of the inherent jurisdiction continues to be the case. If anything, the breadth of the use of the inherent jurisdiction in the light of Re SAand the wide and potentially unlimited categorisation of a “vulnerable adult” serves to increase the concern about the unprincipled extension of the inherent jurisdiction into the area of deprivation of liberty. This analysis is not undermined by Re T, both because that case concerned children, and because of the role of the positive obligations under Articles 2 and 3.
92. A further reason for rejecting the argument that EG can be deprived of his liberty under the inherent jurisdiction is that the domestic caselaw, principally stemming from DL, shows that the use of the inherent jurisdiction in respect of vulnerable adults is a facilitative rather than a dictatorial one. It is to be used to allow the vulnerable person to have the space, away from the factor which is overbearing their capacitous will, to make a fully free decision. An order which deprives that person of their liberty is a dictatorial order which severely constrains their freedom, however well meant, rather than allowing them the space to reach a freely made decision.
Interestingly, and helpfully, the judgment then includes the order actually made.
The Supreme Court in MM (and, relatedly in PJ) made very clear that they considered that, if Parliament wanted to extend the coercive powers of the MHA 1983 into the community, it should make this clear. We are currently in the distinctly unsatisfactory situation where increasingly heroic and complicated hoops are being jumped through to address the situation of those in the position of EG (and/or those who would be in their position but for a finding that they lack capacity, at which point a parallel and arguably equally unsatisfactory set of provisions are being deployed). It is laudable, at one level, that all concerned are seeking to find ways in which to secure that those in the position of EG are not being recalled to hospital, but are being maintained in the community. But a real problem with judicial fire-fighting of the nature that Lieven J was being invited to undertake here is that it raises the potential for yet further unanticipated consequences arising out of the solution crafted to meet the particular problem before the court. In the circumstances, it is to be hoped that Parliamentary time will allow for measures to be brought forward as part of the reform of the MHA 1983 to allow (1) a proper debate about how far the coercive powers of the MHA 1983 should actually extend into the community; and (2) what safeguards are required in consequence.