In PJ v A Local Health Board & Ors  UKUT 0480 (AAC) Charles J, sitting as President of the Upper Tribunal (Administrative Appeals Chamber) has extended the conclusions reached in KD v A Borough Council and the Dep of Health  UKUT 0251 (AAC) (guardianship) and SSJ v KC and C Partnership Foundation Trust  UKUT 0376 (AAC) to consider the question of the interaction between the MHA and the MCA in the context of CTOs.
In PJ, Charles J was concerned with a man on a CTO who was required to live at a care home and abide by the regime there, which included 15 minute observations at the care home. He had both escorted and unescorted leave from the care plan as part of his risk mitigation plan. Charles J recorded that PJ’s RC stated that the conditions of his care plan were non-mandatory and reports indicate that this is what PJ was told. There was also evidence that PJ had expressed (a) a wish to have greater freedom to see his family and his girlfriend without restrictions and that these wishes had not been complied with, and (b) the view that he was generally happy with and at the Care Home. A psychiatric report dated 25 April 2014 recorded that PJ had expressed his understanding of the CTO in the following terms: “in my language it means if you **** up its goodbye everything.”
PJ sought discharge of the CTO before the MHRT for Wales on the basis that the arrangements for care under the CTO amounted to an unlawful deprivation of liberty in breach of Article 5; and, on this basis, the MHRT should exercise its discretionary power to discharge. The MHRT refused the application, holding that he was not deprived of his liberty in the following terms:
“4.9 The Tribunal has carefully considered the legal argument made in this case and the evidence given to the Tribunal. Each case must be considered on its merits, particularly so with regard to the issue of “Deprivation of Liberty”. It appears to us that the current Case Law and Guidance [note, it is not clear what guidance this refers to, the decision being given on 2 May 2014], which it is noted has “yet to be fully tested”, essentially considers whether the person concerned is “subject to continuous supervision and control” and “whether they are free to leave”. From the evidence received, relating to these specific matters, it is clear to us that the Applicant has significant time where he is not supervised and there is a flexible and progressive plan in place, to encourage and enable more time to be spent “unsupervised”. Therefore, we find that this is not “deprivation” of liberty but rather a “restriction” of liberty, which is necessary and proportionate, based on the evidence, and considering the likelihood of the Applicant suffering harm and the seriousness of that harm. Since this element is not satisfied (in our view) the Tribunal does not need to deal with the “freedom to leave” issues.”
The MHRT upheld the CTO, concluding as follows:
“4.11 The Tribunal accepts that there is a “need” because the Applicant’s historic nature of illness, and current “uncertainties”, based on the risks that have been evident and the need for treatment through on-going therapy, structure and support. The CTO is a framework, which can also enable monitoring, review and recommendations and the Tribunal believes that this must take precedence over any human rights issue”. (emphasis added by Charles J).
PJ appealed to the Upper Tribunal. As Charles J noted, there were two main issues, namely whether the MHRT erred in law in concluding that PJ:
- was not deprived of his liberty, and
- if he was, that the CTO framework must take precedence over any human rights issues.
This summary focuses primarily on the first issue, as the most important regarding the interaction between the MHA and the MCA.
Deprivation of liberty
As he had done in YA, Charles J emphasised the different components of the elements of the test for deprivation of liberty. In terms of the subjective element – i.e. whether capacitous consent has (or can) be given – to an objective confinement, Charles J noted (at paragraph 47) that he had addressed questions of capacity in YA in the context of representation before MHTs, and, importantly, that the approach set out there showed that: “the fact a person is objecting does not mean that they have capacity to consent to their care regime or a part of it. Also an objection does not of itself indicate whether a person with capacity is or is not consenting to the care regime. So PJ’s graphic description of the effect of the conditions of a CTO and their breach together with his objections to aspects of it do not indicate whether or not he has consented to it (or his capacity to do so)” (paragraph 48).
Turning to the objective deprivation of liberty, Charles J noted that the ‘acid test’ was expressed by Baroness Hale as a composite test with two parts. “She envisages that a person who is not free to leave may not be not under such (my emphasis) continuous supervision and control as to found a conclusion that he or she is deprived of his or her liberty.” Importantly, however, he noted that Baroness Hale did: “not divide up the two parts in the way that the MHRT did by considering the degree of supervision and control in isolation and then not going on: i) to consider it with, or ii) to consider at all whether PJ was free to leave (or effectively alter the conditions that limited his freedom action).” (paragraph 68).
Further, Charles J noted that “taking this approach to the key issue as identified by Baroness Hale, the MHRT overlooked that the fact that a person may have unescorted leave in the community does not mean that he is not deprived of his liberty if the leave is regulated and controlled, and he is not free to leave in the sense of removing himself permanently in order to live where and with whom he chooses” (paragraph 70). Charles J further referred in this regard to Stanev and the earlier decision in Ashingdane with its clear statement that a compulsory patient is deprived of his liberty in the hospital where he is detained (and so not free to leave), irrespective of the openness or otherwise of the conditions.
Charles J therefore held (paragraph 73) that the MHRT erred in law in its approach to (1) the assessment of the degree of supervision and control required, and (2) by divorcing that consideration from the freedom of PJ to leave (or to effectively refuse to abide by the relevant conditions). Charles J further held that the MHRT overlooked, and so failed to take into account, the guidance given in Cheshire West that the reason or purpose of the relevant conditions was not relevant to the assessment of whether the objective element of a deprivation of liberty was satisfied.
Charles J noted that an alternative argument was advanced by the Health Board that, on a proper analysis of the provisions of the MHA, PJ “was free to leave” because the conditions were unenforceable and so any error of approach in law by the MHRT was immaterial. This argument was that PJ was “free to leave” because the only sanction for breach of the relevant conditions was that such a breach would be taken into account in exercising the power of recall to hospital. Counsel contrasted the position under guardianship where there is a statutory power to return the patient to the placement (see s.18(3) of the MHA).” As Charles J noted, this could have been run as an argument in RB and KC, but was not.
In response to this argument, Charles J reminded himself that the Strasburg law operates on the Guzzardi principle that the starting point in assessing whether there has been a deprivation of liberty is “’the concrete situation’ of the person and the consideration of “a whole range of criteria such as the type, duration, effects and manner of implementation of the [restrictive] measure in question (see Guzzardi v Italy (1980) 3 EHRR at paragraph 92 and 93).” As Charles J noted “[i]n my view, that principle and approach is a powerful pointer:
i) to the conclusion that it is the practical situation on the ground created by a care and treatment regime, and so the practical impact on the freedom of the relevant person to act as he or she wishes, that matter when assessing whether objectively patients are deprived of their liberty, and
ii) against the conclusion that the lack of provisions relating to the direct enforcement of, and so the specific performance by the patient and those delivering the regime of care, of restrictive conditions have weight.”
Charles J held that from the starting point of the ECtHR cases encapsulated in the Guzzardi principle “a distinction based on the statutory power to return someone subject to guardianship to his or her placement is not warranted. Such an approach would be too technical. As would one based on a distinction between the suspension of the original detention (as with a CTO) and the continuation of it (as with the conditional discharge of a restricted patient)” (paragraph 77). In his view, therefore, “the ‘free to leave’ issue based on the lack of a provision for direct enforcement of relevant conditions in the MHA and the practical effect of the power of recall needs to be considered on the alternative bases, that an objectively assessed deprivation of liberty (a) is or can be made lawful, and (b) is not and cannot be made lawful.” Charles J observed that:
- If and so long as the implementation on the ground of the relevant restrictions would be lawful it seemed “tolerably clear that the relevant person is not ‘free to leave’ even though the reality of enforcement is the exercise of the power of recall (or a resetting of conditions).”
- However, where the implementation of the restrictions would not be lawful, the position was less clear. Charles J’s view was that the “pragmatic force of those risks and consequences is that for the purposes of Article 5 it cannot be said that the relevant person is ‘free to leave.’” He acknowledged, however, that an alternative view could be founded in the approach taken by Holman J in R(SH) v MHRT  EWHC 884 (Admin),  MHLR 234.
Because PJ had been discharged from his CTO, Charles J held that there was no point in remitting the issue for determination to the MHRT, even though it had erred in law.
It is important to note that Charles J declined to answer whether PJ was, in fact, deprived of his liberty. He acknowledged, as the Health Board did, that it was difficult to see how a further analysis of the facts would not found the conclusion, applying Cheshire West, that PJ was objectively confined. However, Charles J did not accept the premise that PJ had the relevant capacity to consent to the care regime and was objecting to it, holding that both aspects would have required further examination.
Charles J therefore held that it would not be appropriate for him to seek to utilise this case to seek to convert his obiter conclusions in the KC case relating to the ability of a patient with capacity to give a valid consent for the purposes of Article 5 to something more under the guise of general guidance, or the guidance he would have given if I had remitted this case. He noted, though, that there was little doubt that this issue will arise in a case in which it will be part of the ratio.
The role of the MHRT
As Charles J noted, the approach adopted by the MHRT assumed the existence or possible existence of a breach of human rights and so here a deprivation, or possible deprivation, of PJ’s liberty in breach of Article 5. So it was a conclusion that a MHRT and a First-tier Tribunal can and indeed should (1) ignore possible breaches of Convention rights, or (2) permit, or effectively permit by doing nothing directed to it, an unlawful state of affairs (i.e. a breach of Convention rights) to continue.
Charles J agreed with the submission made on behalf of PJ that both conclusions were an error of law. In summary, his conclusions were that, in determining whether to discharge a patient on a CTO under s.72(1)(c), to adjourn proceedings or to exercise the discretionary power of discharge, the MHT/MHRT must take into account whether the implementation of the conditions of a CTO will or may create a breach of Article 5 (or any other Convention right).
“141. In my view, if the tribunal concludes that the relevant medical treatment is not being and could not be provided without a breach of the patient’s Convention rights and so lawfully:
i) the tribunal would not be satisfied that lawful and appropriate medical treatment was or would become lawfully available under the CTO, and so s. 72(1)(3)(c) satisfied, and
ii) if my construction and application of s. 72(1)(c) is wrong the tribunal should nonetheless exercise its discretion to bring an end to that unlawful situation by discharging the CTO.”
The position would be different, Charles J considered, if an issue remained to be decided as to whether there is a breach of a Convention right and/or the terms of the terms of the CTO could be changed so as to avoid a breach of Convention rights (e.g. by avoiding an objectively assessed deprivation of liberty).
“143. In those circumstances the underlying purposes of the MHA to support moves from hospital to the community and the obvious strength of the points made, for example, in paragraph 23 of the GA case (and which I suspect understandably underlay the conclusion of the MHRT on the impact of human rights) to the effect that if, subject to issues of its lawfulness, there is treatment that satisfies ss. 17A(5) and s. 72(1)(c) the CTO should be upheld, point powerfully in favour of the tribunal providing an opportunity for the patient, MHA decision makers and the providers of the patient’s care and support regime to take steps to provide that the implementation of the relevant conditions is lawful.
144. That opportunity could and in my view generally should be provided by the grant of an adjournment with directions as to what should be addressed and possibly the giving of a non-statutory direction.
145. On that basis, it would only be in cases in which the problems relating to breach of Convention rights could not be resolved that the tribunal would have to discharge the CTO with the possible consequences that (a) the patient would have to remain in or be returned to hospital and so be deprived of a route towards a return to the community, or (b) the patient would leave hospital on a different basis.
146. Issues equivalent to those mentioned in paragraphs 45 to 49 and 60 to 66 of the KD case, and in paragraphs 58 to 73 of the KC case may well arise in connection with whether there should be an adjournment and if so what directions or recommendations should be made by the tribunal. As those passages show:
i) if the Court of Protection is to be involved there is a need for the MHA decision maker to identify the terms of any care regime and, in particular, what is needed to protect the public,
ii) issues may arise on who should determine relevant issues of capacity and Rule 2 of the Tribunal Procedure Rules 2008 is likely to be relevant to their determination, and
iii) although the First-tier Tribunal and the MHRT are investigative tribunals the parties have the primary duty to provide and advance the relevant evidence and argument.”
Charles J then gave a check list of for First-tier Tribunals and MHRTs when an issue arises whether the implementation of the conditions of a CTO that are needed to protect the patient or the public will cause a breach of Article 5 and thus an unlawful deprivation of liberty. He noted that a number of the questions gave rise to issues for another day (for instance as to whether a patient with the relevant capacity can consent to what would otherwise be a deprivation of liberty).
Permission to appeal
Charles J made clear that his approach to the jurisdiction of the Tribunal of necessity required him to disagree with the “minimalist” approach of Upper Tribunal Jacobs to its jurisdiction taken in three cases ((SH v Cornwall Partnership NHS Trust  UKUT 290 (AAC), GA v Betsi Cadwaladr University LHB  UKUT 0280 (AAC) and NL v Hampshire  UKUT 0475 (AAC). Both because of this and because of the difference in approach that he took to previous UT decisions about capacity to consent to deprivation of liberty, he gave permission to all those concerned to appeal (whether or not they had been before him in the actual hearing). At present, we do not know whether this opportunity will be taken up.
Although not part of his decision, it is should be noted that Charles J made it very clear that he does not agree with the judgment of Upper Tribunal Judge Jacobs in NL that guardianship, alone, cannot create a deprivation of liberty. He had doubted whether that was right in KD, but he now went further and record that in his view “that analysis is wrong because what matters is the position on the ground caused by the implementation of the care regime which the MHA decision maker has to take into account (see paragraphs 10 and 77 hereof and paragraphs 60 to 64 of the KC case)” (paragraph 130).
Deprivation of liberty
There is at present continued and vigorous discussion about the elements of the ‘acid test,’ which is fascinating (in its way) for the lawyers, but utterly unhelpful for frontline health and social care professionals.
Charles J’s observations as to the approach adopted by the MHRT may be of assistance here beyond the context of the MHA. They suggest (and I suggest rightly) that:
1. It is inappropriate to take too narrow a view of the individual aspects of the ‘acid test’;
2. As was anticipated in the Law Society Guidance might be the case (see paragraph 3.19):
a. questions of temporary freedom to come and go might better fall to be considered by reference to questions of supervision and control where that freedom properly analysed amounts to regulated and controlled ‘leave’ granted by the authorities in charge of the institution; and
b. the ‘freedom to leave’ aspect of the test might fall to be considered by reference to whether the person can remove himself permanently in order to live where and with whom he chooses;
3. the primary question is whether the person is free to leave their placement permanently. If they are not free to leave (applying an approach focused on the realities, not technicalities), then the presumption is that they will be considered to be deprived of their liberty unless they not under such supervision and control as to fall into the limited class of case envisaged as ‘possible’ by Baroness Hale. To my mind, this makes sense, not least because – by definition – a situation in which a decision has been made that a person should live in a particular place is very likely then to be a situation in which those who have made that decision will need to ensure that decision is implemented. Put another way, if a decision has been made that a person is to be cared for in a particular care home, it is more likely than not that steps will also be included in the care home which are aimed at ensuring that they should remain there and receive appropriate care and treatment. Those steps will, of necessity, include elements of supervision and control;
4. at least where a patient is subject to the MHA 1983, and subject to detention, conditional discharge, guardianship or a CTO, it is very likely that questions of confinement will arise as significant constraints are likely to be in place upon the freedom of the individual to relocate permanently. I would suggest, that a person who is subject to residence conditions under the MHA would not also be under such supervision and control as to not satisfy the acid test; it would be very difficult (if not impossible) to imagine a situation where a detained patient would not satisfy the test.
As to the question of consent, it is very clear that we need to focus on the need to identify with care precisely whether the person: (1) has the capacity to consent to the arrangements amounting to a deprivation of liberty; (2) does validly consent to those arrangements. I hope very much that a case will arise shortly in which the ability of a person with capacity validly to exercise limited choices in the context of the MHA 1983 will fall for determination, as it is of such wide application. In the interim, I suggest that the case of LDV still continues to be of relevance in deciding questions of capacity to consent to confinement.
The role of the MHT/MHRT
Charles J’s judgment makes clear that there is a very stark distinction between a minimalist model, adopted by Upper Tribunal Judge Jacobs, and the maximalist model adopted in PJ (and indeed earlier in KC). For my part, the approach adopted by Charles J is compelling, not least for offering the best opportunity for the effective protection of Convention rights of those subject to the MHA 1983 and I hope that is validated by the higher courts sooner rather than later.