In MC v Cygnet Behavioural Health Ltd and SSJ  UKUT 230 (AAC), UTJ Jacobs confirmed that the decision of the Supreme Court in MM  UKSC 60 did not serve as a bar to the Mental Health Tribunal “coordinating” the discharge of a patient on conditional discharge with the provision of authority under the MCA to deprive her of her liberty. As UTJ Jacobs noted:
2. Every judge of the Upper Tribunal, the High Court and the Court of Appeal who has expressed a view has said this approach is permissible. The Supreme Court has declined to deal with the issue. No judge at any of those levels has said that it is not permissible. So what’s the problem?
He identified that there were three problems: (1) that not all First Tier Tribunal judges agreed; (2) whether the reasoning in MM undermined the reasoning in previous cases on patients who lack capacity, and in particular the reasoning of Charles J in Secretary of State for Justice v KC and C Partnership NHS Foundation Trust  UKUT 376 (AAC), to the effect that authority to implement conditions selected by the MHA decision-maker giving rise to a deprivation of liberty could be given under the MCA; and (3) whether a patient’s ECHR rights prevent the First-tier Tribunal from co-ordinating with the capacity decision-maker.
UTJ Jacobs did not have to address the first problem, as by his decision, binding on the First Tier judges, he would achieve consistency. Before turning to the second problem, he addressed the question as an issue of principle, helpfully encapsulating it in this way:
11. […] There are two regimes, governed by the 1983 Act and the 2005 Act. They deal with different things, but they are related. The mental health regime is concerned with detention on the basis of a mental disorder, a need to protect the patient or the public, and the availability of treatment in hospital. The mental capacity regime is concerned with the best interests of a person who lacks capacity to make decisions. Those are separate matters but they can interrelate. The mental health regime will involve a deprivation of liberty, and the mental capacity regime may do so.
12. The difficulty arises at the point of transition as a patient moves from the mental health regime to the mental capacity regime. Suppose that a patient has a mental disorder that requires treatment for their benefit and the protection of others which could be given without the need to detain the patient under the mental health regime but only if the patient was not free to leave the place where they were living without being accompanied and supervised. The First-tier Tribunal has power to discharge a patient conditionally, but has no power to impose a condition that would involve a deprivation of liberty. The mental health regime requires the tribunal to take account of the possibility of treatment and protection being provided outside that regime, but how is that to be organised in a way that is compatible with the limited powers of the different decision-makers operating the two regimes? That is what underlies this case.
UTJ Jacobs then undertook a review of the authorities, and noted that the Supreme Court in MM expressly did not deal with the issue of a patient who lacked capacity to consent to a deprivation of liberty; indeed, he considered that “[t]he terms of paragraph 27 also show that it did not consider that its reasoning might have an impact on such a patient. Otherwise, paragraph 27 of its judgment would not have been worded as it was. But it left open the issue open for later cases to decide.” He therefore concluded that the Supreme Court’s reasoning did not undermine Charles J’s decision in KC which (UTJ Jacobs considered) was “concerned with achieving a coherent interpretation of the 1983 and 2005 legislation in a way that was appropriate across the range of circumstances in which it might apply and did not leave gaps” (paragraph 25). UTJ Jacobs considered Charles J’s reasoning to be persuasive; he was equally persuaded by the judgment of Lieven J in SR and JTA  EWCOP 28, which addressed the position from the perspective of the Court of Protection. He considered that it was “imperative” that the First-Tier Tribunal:
28. […] apply the 1983 Act in a way that allows a patient to be discharged if there are means by which the patient’s case can be appropriately dealt with under other legislation. The 2005 Act is such legislation. If a patient’s case is to be dealt with correctly under the 1983 Act and fairly and justly under the tribunal’s rules of procedure, the tribunal is under a duty to find a way that allows both Acts to be applied in a co-ordinated manner.
He then turned to considering how the necessary “mental capacity arrangements” could be made. If authorisation had already been obtained (either by way of a DoLS authorisation where such was appropriate) or by way of an order from the Court of Protection, the tribunal could potentially proceed to a conditional discharge without further ado. Otherwise, he noted, there were two possibilities which had been canvassed – there might be other and better ones, but if there were he could not think of them, although he made clear that he did not intend to limit the Tribunal to these approaches if there was a more appropriate one.
The two approaches are:
- “the different hats approach”: i.e. the same judge sitting in the Court of Protection and in the First-tier Tribunal to ensure that all decisions could be made that would allow the patient to be conditionally discharged on appropriate conditions and with the benefit of a deprivation of liberty authorisation. This had been the suggestion of the Court of Appeal in MM (and also, although UTJ Jacobs did not mention this, the approach proposed by the Law Commission in its Mental Capacity and Deprivation of Liberty report, at 12.79), and UTJ Jacobs made clear that he considered that this was lawful and appropriate.
- “the ducks in a row approach”: i.e., if the “same hats” approach would not work, to adjourn, to make a provisional decision or to defer discharge in order to allow the necessary authorisation to be arranged (discussed further in DC v Nottinghamshire Healthcare NHS Trust and the Secretary of State for Justice  UKUT 92 (AAC))
UTJ Jacobs noted that the choice between the two regimes:
32. […] may come to little more than a matter of preference for the tribunal. It may, though, depend on how sure the tribunal is that the mental capacity decision will be put in place and how confident it is of the terms of any such decision (the terms of the care package, for example).
In terms of the third problem, the patient’s ECHR rights, UTJ Jacobs had little hesitation in finding that it was, in fact, no such thing. Charles J had held that there was no breach of either Article 5 read in isolation or in combination with Article 14 by virtue of the existence of parallel proceedings (overseen by parallel courts). He accepted the argument advanced by the SSJ that the existence of s.17(3) MHA 1983 leave, which meant that capacitous patients could be transferred from hospital to another placement, meant that, in fact, there was no discrimination in favour of those lacking capacity. UTJ Jacobs could see “no violation of the patient’s rights in providing a procedural route that works within the limited mental health jurisdiction of the First-tier Tribunal and is in the patient’s best interests. Quite the reverse” (paragraph 34).
This judgment is helpfully clear as to the position and as to the potential options open in these parallel cases. Some, though, may want to read it in light of the observations of Charles J, now Sir William Charles, as to the impact of the decision in MM. In a speech given to the Judicial College (now to be found in the June 2019 39 Essex Chambers Mental Capacity Report), Sir William expressed deep concern at the use of the use of a back door route to bring about the imposition of what are, in effect, conditions dictated by the mental health decision maker in circumstances which he saw as contrary to the approach of the Supreme Court in MM. Given the reliance placed by UTJ Jacobs upon Charles J’s decision in KC, it would have been of interest to see what UTJ Jacobs made of the fact that Charles J himself now considered – albeit extra-judicially – that the reasoning in that case had been undermined by the Supreme Court’s decision in MM.
The reality, of course, and as highlighted in the Independent Review of the MHA 1983 (at page 202) is that it is fundamentally problematic that it is necessary to have two parallel regimes. Parliament needs to be asked to consider whether it actually wants the MHA 1983 to be able to be used to authorise deprivation of liberty in the community (outside the scope of s.17(3) MHA 1983). If it does, then it should provide a regime which enables express consideration of this, and express recourse to one judge, sitting with one hat in one court. Until then, and whilst the approach of UTJ Jacobs in this case is undoubtedly helpful in terms of ensuring that – on the ground – individual patients are not stuck, the overriding impression remains that the ducks are wearing hats that do not fit.
 “27. Whether the Court of Protection could authorise a future deprivation, once the FtT has granted a conditional discharge, and whether the FtT could defer its decision for this purpose, are not issues which it would be appropriate for this court to decide at this stage in these proceedings. Assuming that both are possible, and therefore that there might be an incompatibility with article 14, read either with article 5 or with article 8, it would make no difference to the outcome of this case. The outcome of this case depends upon whether it is possible to read the words ‘discharge … subject to conditions’ in section 42(2) (dealing with the Secretary of State’s powers) and ‘conditional discharge’ in section 73(2) (dealing with the FtT’s powers) as including the power to impose conditions which amount to a deprivation of liberty within the meaning of article 5.”