Court of Protection Newsletter #1108.01.19
Welcome to the January issue of Spire Barristers’ Public Law Newsletter covering November and December news from around the web, practice updates and case reviews in Court of Protection and Public Law matters.
This month includes updates on news, reports, guidance and case law, a note of our recent seminar on the progression of the Mental Capacity Act Amendment Bill and a brief focus on the final report on the Review of the Mental Health Act.
Thanks for reading.
‘Modernising the Mental Health Act’. The final report from the independent review was published in 6 December 2018Read More
Royal College of Psychiatrists says it is increasingly concerned about the use of locked rehabilitation wards for people with serious mental health problemsRead More
The Care Quality Commission is to review the use of restraint, prolonged seclusion and segregation for people with mental health problems, a learning disability and/or autism.
Interim findings will be reported in May 2019 and a full report will be published in March 2020.
Independent Mental Health Act Review published 6 December 2018
Barbara Green provides an in depth focus of the recent independent review of the Mental Health Act published 6 December 2018.
Reports and Guidance Update
CQC Mental Health Act 1983 (MHA) report and corrections
CQC, ‘Monitoring the Mental Health Act in 2016/17’ (27/2/18) This report sets out the CQC findings from engagement with people subject to the MHA and the review of services registered to assess, treat and care for people detained using the MHA.
CQC, ‘Monitoring the Mental Health Act in 2016/17 – amendment list’ (13/11/18) The CQC have published a list of amendments to this document after it was found that some data had been displayed in the report inaccurately.
Forced marriage consultation 15.11.2018 to 23.01.2019
This consultation invites views of how the current guidance on forced marriage can be improved. It also requests comment on whether it is necessary to introduce a new legal mandatory reporting duty relating to cases of forced marriage and, if so, what such a reporting requirement would look like.
Final report of the mental health act review
Women and children, particularly girls, and people from black and minority ethnic groups have been found to be at particular risk of restraint.
The act, also known as Seni’s law after Seni Lewis who died after being excessively restrained by police officers in a mental health hospital, is now operational. This new law requires: the reporting of the use of restraint by staff; for restraint to only be used as a last resort; and the training of staff on the impact of restraint on the mental health of patients.
Can a restricted patient agree to restrictions of his liberty as part of the conditions of his conditional discharge (MM)?
The Supreme Court (Lord Hughes dissenting) has upheld the ruling of the Court of Appeal that neither the Secretary of the State nor the Mental Health Tribunal has the power to impose conditions on a discharge of a restricted patient which would amount objectively to a deprivation of the patient’s liberty.
The background to the case is that MM has learning disabilities and an autistic spectrum disorder and was assessed to have capacity to make decisions about the restriction of his liberty. He had been detained in hospital under s.37/41 Mental Health Act (MHA). He applied to the Tribunal seeking conditional discharge with a proposed care package that amounted to a deprivation of his liberty (DoL). The Tribunal rejected his argument that, as he had capacity to consent, the Tribunal could impose a condition requiring him to comply with the liberty restrictions of his care package.
The Upper Tribunal disagreed and allowed MM’s appeal, deciding that the Tribunal could impose conditions that amounted to a DoL and that a patient with capacity could consent to such conditions.
The Court of Appeal allowed the appeal, supporting the decision of the first instance Tribunal that there is no power that can be exercised by the Tribunal to authorise a DoL outside hospital when granting a conditional discharge to a restricted patient. It was stated that there is no existing statutory authority for this within the MHA. If the Tribunal is satisfied that the patient is validly consenting to supervision to protect them and the public, it can grant an absolute discharge or a conditional discharge with conditions that do not amount to an objective DoL.
The Supreme Court recently decided on a 4 to 1 basis that the MHA 1983 does not permit the First-tier Mental Health Tribunal or the Secretary of State to impose conditions that amount to a DoL upon a conditionally discharged restricted patient.
The dissenting judgment was from Lord Hughes who was worried that patients could remain in hospital indefinitely as a result of this interpretation of the MHA. The judgment makes it virtually impossible to conditionally discharge patients subject to criminal sections such as 37/41 into the community, where the care arrangements proposed to manage any risk in the community amount to an objective DoL, and the patient has capacity. This leaves some patients who may be detained in more restrictive settings than is required to manage their mental disorder, which is contrary to a fundamental principle of the Code of Practice that patients should always be managed in the least restrictive setting possible.
Can a community treatment order include conditions for the deprivation of the patient’s liberty? (PJ)
The Supreme Court has reversed the decision in PJ, in which the Court of Appeal had held that the MHA contained within it, by implication, the power for the patient’s responsible clinician to set conditions on a community treatment order (‘CTO’) that amounted to a deprivation of liberty if this involved a lesser restriction on their freedom of movement than detention for treatment in hospital.
Until shortly before the Supreme Court hearing, the Welsh Ministers’ principal argument was that the Court of Appeal had been correct. But shortly before the hearing the Welsh Ministers advanced an entirely alternative and diametrically opposed argument. This was that because the conditions in a CTO cannot be enforced, they could not in law amount to a deprivation of liberty and it was therefore permissible to impose them.
The view of the Supreme Court was that Welsh Ministers are correct about the legal effect of a CTO. But it does not follow that the patient has not in fact been deprived of his liberty as a result of the conditions to which he is subject. The European Court of Human Rights has repeatedly said that the protection of the rights contained in the European Convention must be practical and effective.
Applying very similar analysis that that undertaken in the MM case with which PJ had been linked at the Court of Appeal stage, Lady Hale found that:
- […] the MHA does not give the RC power to impose conditions which have the concrete effect of depriving a community patient of his liberty within the meaning of article 5 of the European Convention.
- [….] If the reality is that he is being unlawfully detained, then the remedy is either habeas corpus or judicial review.
Deprivation of liberty case (post MM)
AB was assessed to have capacity to consent to the care, support and accommodation arrangements which were provided as part of his conditional discharge. AB’s community care plan requires him to be supervised at all times, save when he is with his mother on very, very limited occasions and she is then responsible for supervising him during those times. Following the MM case, these discharge arrangements were found to require an unlawful deprivation of AB’s liberty.
The High Court determined it was appropriate to exercise the inherent jurisdiction in respect of AB and, accordingly, approved an order for 12 months that authorises the deprivation of liberty which arises from the terms of AB’s community care plan, with the proviso that the applicant is to apply to court if the restrictions increase.
Capacity to be informed of personal injuries settlement approval
The settlement of a personal injuries claim required the approval of the court pursuant to CPR Part 21.10. The primary question was whether, on the balance of probabilities, the Claimant could not decide whether he should be told the value of the award. There was evidence that the ability of the Claimant to make the decision was variable and he could not sustain over any meaningful period making such a decision and weigh up all the relevant considerations.
It was ordered that the Claimant lacked the capacity to decide whether or not he should know the amount of the Settlement and it was in his best interests that he did not know the figure. Further, no-one with knowledge of the Settlement should inform him of the sum save for explaining that the Settlement is sufficient to meet his reasonable needs for life.
A copy of the judgment has been sent to the Deputy Head of Civil Justice and to the Vice-President of the Court of Protection to consider if consultation/action on this matter is required.
Lack of insight into the need for treatment is not sufficient for rebutting the presumption of capacity.
This judgment of the Supreme Court of Victoria, Australia, concerned two patients for whom electro-convulsive therapy (‘ECT’) was proposed. The Australian statutory provisions are similar to those in the Mental Health Act 1983 and the Mental Capacity Act 2005 and therefore this case is relevant to our domestic law.
PBU accepted he suffered from depression, anxiety and post-traumatic stress disorder for which he was willing to receive psychiatric and psychological treatment. He did not agree that he had schizophrenia and was unwilling to receive ECT or anti-psychotic medication or treatment. He wished to be discharged from hospital to a recovery facility and then return home. The detaining hospital considered him to be too unwell for discharge and sought the authority of the tribunal to provide ECT on the basis that he lacked capacity to make the relevant decision. NJE suffered from treatment resistant schizophrenia. She wanted to remain in hospital and receive medication but the tribunal found that ECT provided the best chance of addressing her symptoms.
The tribunal decided that both PBU and NJE could understand and remember relevant information and communicate a decision in relation to ECT but they could not use or weigh that information. Each was found to lack capacity to give informed consent and that, in the absence of any less restrictive alternative, a course of ECT was ordered to be given.
On appeal, the tribunal was found to have erred in law. PBU’s lack of insight was not determinative of his lack of capacity. And the “careful consideration” to the advantages and disadvantages of ECT that was required of NJE was too high a threshold of capacity and discriminatory.
The functional test of capacity is whether the person has the ability to understand, retain, use and weigh relevant information and communicate a decision; not whether the person has actually done so. Acceptance of, belief in and insight into the diagnosis of illness and need for treatment varies significantly depending upon the person and the situation; a lack of insight is not necessarily indicative of a lack of capacity. For anybody, non-acceptance of a diagnosis and lack of insight into the need for treatment would not be a sufficient basis for rebutting the presumption of capacity.
Application for husband to have restricted contact with his wife by husband owing to his expressed views in support of euthanasia.
A Local Authority applied orally for orders to restrict SR’s contact with her husband JR. The restrictions sought were for JR to be prevented from taking SR out of the care home unless accompanied by a relative or a member of staff from the home owing to his expressed views and comments on euthanasia.
The court noted that JR has been consistently devoted and affectionate towards SR and she had been safe throughout extensive unsupervised contact with her husband, both within and outside the care home. The court determined that the restriction sought by the local authority was not justifiable, proportionate or necessary.