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Capacity means detention for life?

Birmingham City Council v SR / Lancashire County Council v JTA (Court Of Protection case)

Stephen Beard – Solicitor – Peter Edwards Law


This article – about the recent Court of Protection case – is of vital importance to you if you are:

A patient in a mental health hospital, detained under section 37/41 of the Mental Health Act 1983 (MHA)
A person making decisions about such patients
A relative or close friend of such a patient, or
Anybody with an interest in developments in mental health / mental capacity law

If you are in any way involved in a situation where a person is detained under section 37/41 MHA, where the intention is to discharge that person to circumstances that amount to a deprivation pf liberty, then this needs to be very carefully planned in order to avoid very significant delays

This article addresses the significant problems in relation to the conditional discharge for those who have capacity but, as they have no real choice, the courts have ruled that their consent is not real consent and therefore such discharge would be unlawful.

This raises the prospect that there is a procedure to conditionally discharge someone who lacks capacity but potentially a person with capacity (who requires care amounting to a deprivation of liberty) will never achieve discharge. At the end of this article I address how the Ministry of Justice suggest these cases are progressed.

It therefore follows that there are now completely different procedures to be followed depending on whether a person has, or does not have, capacity to consent to such deprivation of liberty.

The article, in summarising this case explains:

What it means to be ‘deprived of your liberty’
What it means to ‘lack capacity’ to make decisions about your treatment
What the SR / JTA case will mean for you if you are a section 37/41 patient and you are hoping to be discharged into   the community

Facts of the case

SR was a Birmingham patient and JTA was a Lancashire patient. They had both been detained under section 37/41 MHA and had previously committed sexual offences.

In 2018, SR was close to the point of being discharged into the community.

JTA had in fact already been discharged by a tribunal, in 2016. It had later been noted, however, that the conditions which the tribunal had attached to JTA’s discharge were an obvious deprivation of liberty. His care at the placement in question therefore had to be authorised by the Court of Protection i.e. under the Mental Capacity Act. The main points in issue in the case were that:

Both patients were said to need supervision in the community, and so would be deprived of their liberty in their new placements, and
Both patients were said to lack to decision-making capacity to consent to their community care plans

What does it mean, to be ‘deprived of liberty?’

In short, it would mean that even in their community placements:

They would be under continuous supervision and control
They would not be free to leave their placements

Whilst both patients said they were happy to go along with such arrangements, they were assessed as ‘lacking the capacity’ to make this decision.

Such deprivation of liberty has to be authorised but cannot be authorised by the tribunal making the decision to discharge.

What does it mean when somebody ‘lacks capacity’ to make a decision? Can somebody make the decision for them?

If a patient is said to ‘lack capacity’ to make a decision (as was the case with SR and JTA) in short this means that they don’t fully and consistently understand the decision which they are making (and its consequences). The checklist for testing a person’s capacity to make a decision is found at section 3 of the Mental Capacity Act, here:

A (OMIT – medical) professional such as a doctor or social worker will have assessed the person’s capacity.

If a person cannot make a decision for themselves, it may be that a court is needed to authorise certain decisions for them, having assessed what is in their ‘best interests’. This is what happened in the SR / JTA case.

Specifically, the case confirmed that the Court of Protection would need to be the court which would authorise the deprivation of liberty of any section 37/41 patients who were looking to be discharged but who lacked to capacity to consent to being deprived of their liberty in the community.

What was the M case (2018)? How does the SR / JTA case build on the M case?

The SR / JTA case in the Court of Protection, and the 2018 M case in the Supreme Court, are the latest in a series of cases to look at the deprivation of liberty, in the community, of conditionally-discharged s.37/41 patients.

In M v Justice Secretary (2018) the evidence was that once discharged into the community, the patient should be required to live at a particular place and only go out with an escort. He was determined to have capacity to consent to this, and was prepared to consent. The Tribunal was asked to rule on whether it would be lawful for him to be conditionally discharged with these conditions being authorised by the Mental Health Act. The lead judgement was by Baroness Hale.

The Supreme Court held that the MHA did not permit the Secretary of State / First Tier Tribunal to impose conditions, under the MHA, which would amount to a deprivation of liberty, even if the patient consented. The court however did not deal with the powers of the Court of Protection under the MCA to deprive an individual who had been (or was contemplated to be) conditionally discharged under the MHA.

The SR / JTA case reaches the same conclusion as M regarding the limitations of the Mental Health Act, but suggests that the Mental Capacity Act could be used to authorise your deprivation of liberty in the community and once this has been done, you could then be discharged under the MHA.

The case stressed the importance of progressing any application to the Court of Protection for a proposed Deprivation of Liberty of a discharged patient. A Court of Protection (Mental Capacity Act) order authorising this would need to be in place, or very close to being in place, before a Tribunal would be prepared to consider the grant of a conditional discharge.

So, whilst the MHA can be used by the tribunal or Secretary of State to discharge a section 37/41 patient into the community, only the Mental Capacity Act can be used to authorise any deprivation of their liberty in the community.

What will the SR / JTA (and M) cases mean for patients?

Baroness Hale herself acknowledged in M that the result of that case could mean some patients detained in hospital under the MHA would not now be discharged and that remaining in hospital could be more intrusive than being deprived of their liberty in the community.

Due to this problem, the government created a guidance document called “Discharge conditions that amount to a deprivation of liberty”, although this is only guidance, not law.

The Guidance identifies 3 different kinds of patient who could be at or near the point of conditional discharge, and advises how each type of case could be dealt with:

Patients with capacity

it is suggested that these patients can’t be discharged to a deprivation of liberty situation, but they could be given long term leave of absence under the MHA, with conditions that they stay at a particular placement.

Patients who lack capacity to consent to their care plan,

whose own best interests require them to be subject to a care plan to help them with daily living activities or self-care and where the support would amount to a deprivation of liberty.

The Guidance suggests that the tribunal can issue a deferred conditional discharge, with the necessary arrangements then being made to put in a place a DoL authorisation before the patient is discharged.

Patients whose care plan required a deprivation of liberty primarily in order to protect the public.

For this category, the Guidance suggests that a conditional discharge would not be appropriate and s.17(3) leave would be open to consideration. An important point to note from the SR / JTA is that the lead judge, Mrs Justice Lieven, argued that there is no need to distinguish between patients who need to be deprived of their liberty in their own best interests, and patients who need to be deprived of liberty to protect the public. So in this sense, the case departs from the government guidance. Justice Lieven felt that in many cases, a patient may in fact need to be deprived of liberty for both of these reasons anyway.

In SR / JTA, Justice Lieven makes clear her view that there is nothing in the M case or the MCA itself which would prevent the Court of Protection authorising a deprivation of liberty for patients such as SR / JTA.

The SR case reiterated another important case law point – that the Court of Protection may make declarations and orders concerning best interests, including deprivation of liberty, in advance of any discharge under the MHA –  see DN v Northumberland, Tyne & Wear NHS Foundation Trust [2011].

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