Re AB (Inherent Jurisdiction: Deprivation of Liberty)  EWHC 3103 (Fam)
AB had capacity to consent to the care, support and accommodation arrangements which were provided as part of his conditional discharge but, following the MM case, there was an unlawful deprivation of liberty. The High Court extended the inherent jurisdiction to regularise the position of a capacitous detained mental health patient subject to restrictions as part of his conditional discharge which satisfied the objective elements of a deprivation of liberty (firstly, it was clear that there was no legislative provision governing this situation in that the Mental Health Act provided no remedy; secondly, it was in the interests of justice; and, thirdly, there were sound and strong public policy justifications). The court order: authorised the deprivation of liberty for 12 months; required the applicant to apply to court if the restrictions increase, and no less than one month before the expiry of the authorisation; and provided for a review on the papers unless a party requests or the court requires an oral hearing.
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Hertfordshire County Council v AB
2018 Oct 1; Dec 14
Gwynneth Knowles J
High Court— Jurisdiction— Vulnerable adult— Capacitous mental health patient subject to restrictions amounting to deprivation of liberty— Patient unable lawfully to consent to deprivation of liberty regime— Local authority seeking order under inherent jurisdiction to authorise regime— Whether extension of inherent jurisdiction applicable in circumstances
The local authority applied for an order pursuant to the court’s inherent jurisdiction to authorise a deprivation of liberty in respect of a detained mental health patient who had the capacity to understand and consent to his care, support and accommodation arrangements despite his diagnosis of a mild learning disability. In 2008 he had been convicted of sexual offences and made subject to a hospital order under section 37 of the Mental Health Act 1983 together with a restriction order under section 41. He had been discharged from hospital in 2016 by the First-tier Tribunal pursuant to section 73 of the 1983 Act on conditions which included residence in accommodation approved by the clinical team with 24-hour supervision and which amounted to a deprivation of liberty. Although the patient consented to the regime, it had subsequently been established, in an unrelated case, that the First-tier Tribunal in England had no power to order the conditional discharge of a restricted patient pursuant to section 73 of the 1983 Act on conditions which amounted to a deprivation of liberty, even if the patient consented to those conditions. Accordingly, the care and risk management plan to which the patient was subject was deemed to be unlawful and one to which he could not lawfully consent. Being unwilling to amend the care plan, since that would inevitably result in a significant reduction in supervision and control and would be likely to create a real risk that the patient would be recalled to compulsory detention in hospital because of either his actual or apprehended behaviour, the local authority invited the High Court to authorise the deprivation of liberty, whether exercising its existing jurisdiction in respect of vulnerable adults whose autonomy had been compromised or by extending that jurisdiction in the particular circumstances of the case.
On the local authority’s application—
Held, application granted. The question was whether, as a matter of principle, the court could exercise its inherent jurisdiction in the manner sought by the local authority to regularise the position of a capacitous detained mental patient subject to restrictions as part of his conditional discharge which satisfied the objective elements of a deprivation of liberty. Since the patient’s autonomy had not been compromised, it was inappropriate to exercise its established inherent jurisdiction in respect of vulnerable adults. However, the inherent jurisdiction was capable of principled extension in novel circumstances, such as a legislative void. If the care plan were ruled to be an unlawful deprivation of liberty the result would be that the patient would not receive the support which he clearly needed and which would keep both him and members of the general public safe from his behaviour. In the present circumstances, where (i) no legislative provision governed the situation, in that the Mental Health Act 1983 provided no remedy, (ii) it was in the interests of justice and (iii) there were sound and strong public policy justifications, it was in the interests of the patient and those of the general public to authorise the extension of the inherent jurisdiction in order to regularise the care plan. The present circumstances were precisely those to which the use of the inherent jurisdiction, exercised cautiously and in the manner prescribed in case law, should be put. Accordingly, an order would be made authorising the deprivation of liberty which arose from the terms of the patient’s community care plan for a period of 12 months and would be subject to review (paras 32, 35, 38–41, 45).
Dicta of King LJ in Spencer v Spencer!, paras 43–46, CA and M v Secretary of State for Justice  3 WLR 1784Not on Bailii!, SC(E) applied.
In re L (Vulnerable Adults with Capacity: Court’s Jurisdiction) (No 2)!, CA considered.
Paul Greatorex (instructed by Legal Services, Hertfordshire County Council, Hertford) for the local authority.
The patient did not appear and was not represented.