With thanks to Richard Charlton for providing me with the transcript of the judgment in this case, the decision in P v A Local Authority (unreported, 21 December 2015), highlights the tensions inherent in depriving someone of their liberty in reliance upon Schedule A1 where the primary reason is not to safeguard them against harm but the public against harm.
From 2001 to 2009, P was detained pursuant to section 37 of the Mental Health Act 1983 following his conviction for common assault on 25 July 2001. The assault was on a child who had made an allegation of indecent assault by him on that child and his younger sister. He had a number of previous convictions for minor offences, as well as (potentially) two cautions for indecent assault on children in the 1990s (the records not being clear).
In 2014, the applicant was placed in a residential service with psychological, nursing and psychiatric provision together with social care support which provided a 24 hour support service. At the time he moved there, he was the subject of a community treatment order pursuant to s.17 MHA 1983. That was allowed to lapse with effect from 28 October 2014. In the interim, on 30 April 2014, a standard authorisation was granted, with a second being granted on 25 June 2015.
In July 2015, P made an application under s.21A (it is not clear whether he did so himself, or by a litigation friend; by the time of the hearing, the Official Solicitor was acting as his litigation friend). At least by the time of the hearing before District Judge Glentworth, the grounds of challenge to the authorisation were (1) that the mental capacity requirement were not made out; and (2) that the best interests requirement was not made out.
The independent expert, Dr Barker, found that P lacked capacity to decide whether to be accommodated at the placement for care and treatment and to make decisions as to his future residence. He also noted, however, that the use of DOLS to manage P’s risk to himself as opposed to the MHA to manage the risk to himself and others was “unusual,” and noted that “it would be interesting to know what consideration was given to the appropriateness of the different approaches when discharging him from the Community Treatment Order (or allowing it to lapse).” Amplifying this in oral evidence, Dr Barker was clear that he had not come across a case quite like this, and:
When asked to elaborate he explained that most members of the public would be more concerned about risks posed by the Applicant rather than the risks to him. He was asked whether, given that a CTO would be based on concerns about a risk to the public he would expect the identified risks in this case to be managed by a CTO rather than under the DOLs regime. In that context it is noted that the CTO was allowed to lapse. Dr Barker commented that the treatment the Applicant is receiving did not look unlike the sort of care which he would expect to see under the MHA. Although he accepted that this was an unusual case it was a situation in which he felt confident that the Applicant lacked capacity in relation to the question whether or not he should be accommodated in the relevant accommodation for the purpose of being given the relevant care or treatment. (para 17, emphasis in the original)
DJ Glentworth found that she was satisfied that P satisfied the mental capacity requirement.
As regards the best interests requirement, she noted that:
28. […]The point is made on [P’s] behalf that the requirement will only be satisfied if it is necessary for him to be a detained resident to prevent him from harm and that detention is a proportionate response to the risk of such harm. It is said that the primary purpose of this authorisation is managing the risk to the public. Were it not for his perceived risk to others (children) the Applicant’s care and support needs could be met without depriving him of his liberty. Instead the authorisation is used to deliver treatment to the applicant which mirrors inpatient treatment for mental disorder, normally delivered under the MHA (medication, psychological input, restrictions on leave).
29 This approach to Schedule A1 was described by Dr Barker as “unusual”. I have been referred to what Charles J said about the interplay between the use of the relevant sections of the MHA and the procedure under Schedule A1 in Secretary of State for Justice v KC and C Partnerships NHS Foundation Trust  UKUT 0376 where he said, “It follows that in contrast to the MHA , the MCA does not contain express statutory powers to detain a person for defined purposes, rather its approach is to authorise a deprivation of liberty if it is in the best interests of the relevant person (and so is the least restrictive option to provide the relevant care and treatment in the best interests of that person” . Further, at paragraph 61 he said, “It was also in my view correctly asserted before me that a best interests decision, and so a decision under the MCA , could found a different conclusion on the arrangements and protective conditions that are required to one made under the MHA that has to have regard to the protection of the public and the patient.” He went on to say at paragraph 62 that, “the Court of Protection and the DOLs decision makers are ill-equipped to make and should not make decisions on the arrangements and thus the protective conditions required to provide appropriate protection to the public and the patient as and when the patient moves from hospital into the community…”
District Judge Glentworth accepted (at para 30) that the risk that been identified was that P might behave inappropriately towards children and be at risk of retaliatory reaction, and that the concern appeared to be primarily the risk to the public.
District Judge Glentworth found that the level of restrictions in place might not be necessary having regard to: (1) the nature of the risk posed by P; (2) the documented progress that he had made; and (3) the fact that he had asked for support and clearly valued fit. She was struck by the frustration that he felt as being caught in what he himself described as a Catch-22, in that he was not able to have access to the community to prove that he could be trusted, in part because of concerns from staff as to the frustration that he was demonstrating at not be able to have access to the community.
The judge noted that she had to consider whether there was a less restrictive option than the current standard authorisation, and accepted that there was – namely for P to stay at the placement without being subject to it. She could reach this conclusion in part because it was accepted that he wanted to remain, and was quite positive about it: as the judge put it “[h]e enjoys living there but does not want to be subject to the current restrictions.” As she noted, P recognised that he needed support, and whilst he was keen to go out, was quite clear that he saw that freedom in the context of telling staff where he would be going and when he would be back.
The judge therefore found that it was not necessary for P to be a detained resident, or that his being a detained resident was a proportionate response to the likelihood of him suffering harm; she therefore directed the supervisory body to terminate his standard authorisation.
It is a shame that District Judge Glentworth did not tease out further what appears to have been the logical conclusions of some of the earlier parts of her judgment (reflecting the views of Dr Barker) and make a conclusive determination as to whether a risk that was clearly not a risk to P but rather a risk to others could in fact satisfy the criteria under paragraph 16 of Schedule A1. However, the tenor of her judgment was very much to the effect that it could not (and the plain wording of the third condition – with its specific reference to the harm to the person, rather than anyone else – also suggests that such public protection detentions fall outside DoLS). It is, of course, the case that there have been a number of judgments in which, exercising powers under s.16 MCA 2005, judges have held that a deprivation of liberty for what on any view are public protection purposes is nonetheless in a person’s best interests (see in particular Y County Council v ZZ  EWCOP B34. For my part, I have always been deeply uncomfortable with this approach to best interests, but I cannot deny that they exist. However, my reading of the judgment in the current case is that any supervisory body considering authorising a deprivation of liberty on public protection grounds would be very well-advised seeking the authority of the Court of Protection under s.16 MCA 2005 rather than seeking to rely upon DOLS.
More broadly, P in this case joins a very elite club, namely those who have made successful s.21A challenges to DOLS authorisations in published judgments. Indeed, strictly, he joins a club of just three, along with KK  EWCOP 2136; and M  EWCOP 3456 (the case of Manuela Sykes ( EWCOP B9) was – very properly – framed as s.21A application by Westminster, but was – equally properly – brought by the local authority rather than on Ms Sykes’ behalf, as they recognised that her circumstances required consideration by the court). P v Surrey County Council and Surrey Downs CCG  EWCOP 54 would also appear to represent a successful challenge, in that the relief afforded was that sought by P, but it is not entirely clear whether it was brought under s.21A.
This, way of contrast, is against:
1. Four cases where an application made by P has been dismissed (GJ v The Foundation Trust  EWCOP 2972;); GW v A Local Authority  EWCOP 20 (it seems: the judgment relates to an appeal which is on a slightly different point, but see paragraph 8); RB v Brighton and Hove City Council  EWCA Civ 561; Re KW  EWCOP 53. Additionally in C v Blackburn with Darwen Borough Council  EWCOP 3321, the s.21A application succeeded because C was said not to be deprived of his liberty, but this did not afford C the relief that he sought, not least because the Court of Protection did not have jurisdiction to consider his residence, C being subject to guardianship under the MHA 1983;
2. One case brought by the local authority under s.21A where the court decided to authorise the deprivation of liberty (PB v RB  EWCOP 16);
3. Two cases where the s.21A application has no longer been pursued on P’s behalf by the Official Solicitor (TAQ v AA  EWCA Civ 1661; Re AJ  EWCOP 5), something which raises its own issues);
4. A larger number of cases where cases where the questions arising under s.21A were not determined because the judgment related to an interim or different matter: Re MB  EWCOP 2508; A v A Local Authority  EWCOP 727; Re AB  EWCOP 3151; PH v A Local Authority  EWCOP 1704; Re HA  EWHC 1068 (COP); Re UF  EWCOP 4289); RS v LCC & Ors  EWCOP 56; Re DB and Re EC  EWCOP 30; Mrs P v Rochdale Borough Council  EWCOP B1; AG v BMBC  EWCOP 37); and
5. One case outstanding where the outcome is not yet known: Re Briggs  EWCOP 48 (the point of novelty here being that Charles J has held that it was legitimate to bring what is in reality a serious medical treatment case under the guise of s.21A)
For the sake of completeness, I note also Re LC  EWCOP 25, a case brought by the local authority (but it is not clear whether under s.16 or s.21A), in which District Judge Eldergill placed conditions upon a standard authorisation but held that the deprivation of liberty was lawful.
It is of course the case that there must be a number of further s.21A applications which are heard before District Judges (or indeed Circuit Judges) which succeed but which are not reported; there must also be case where the very bringing of a s.21A application leads to a reconsideration on the part of a supervisory body. It will also be of huge interest to see in due course the results of the work being done by Lucy Series and her colleagues at Cardiff into the proceedings of the Court to see whether the impressionistic overview set out above is borne out more widely in unreported cases.