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Jonathan Wilson, 'Mental health: update' (Legal Action, February 2018)

Case law update Jonathan Wilson considers mental health case law relating to capacity, deprivation of liberty, discharge, after-care, and procedural matters.

About the article

This article was first published in Legal Action magazine and is reproduced by kind permission. This article and subscription details are available on their website. The previous mental health article was: Jonathan Wilson, 'Mental health: update' (Legal Action, February 2017). The next mental health article is: Jonathan Wilson, 'Mental health: update' (Legal Action, February 2019). Some cases may have been appealed since the article was written. You should check the relevant Mental Health Law Online pages, as these normally contain details of any appeals.

Jonathan Wilson considers mental health case law relating to capacity, deprivation of liberty, discharge, after-care, and procedural matters.

Capacity to make a tribunal application

R (OK) v First-tier Tribunal

The First-tier Tribunal’s (FTT’s) decision to strike out a case for want of jurisdiction (on the basis that the patient had lacked capacity to make the application) was upheld in these judicial review proceedings.

The solicitor had made a tribunal application under Mental Health Act (MHA) 1983 s66 in relation to a patient detained under MHA 1983 s3. She then sought to be appointed under Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 SI No 2699 (‘the Tribunal Procedure Rules’) r11(7)(b) as the client lacked capacity to represent himself. The tribunal panel found that ‘[i]t does not appear that the patient has the capacity to authorise anyone to make an application on his behalf and has not done so’ and adjourned the hearing to allow the patient’s solicitors ‘to consider whether they agree that the application is invalid or provide reasons why they consider that it is valid’ (quoted in para 9 of the Upper Tribunal (UT) judgment).

The tribunal had not mentioned rule 8 (concerning striking out a party’s case), but was in effect making a decision under it: the rule requires the tribunal to strike out proceedings where it ‘does not have jurisdiction’, but only after ‘giving the applicant an opportunity to make representations in relation to the proposed striking out’.

The solicitor accepted that the patient had lacked capacity to make the application, but argued that in order to be European Convention on Human Rights (ECHR) compliant, MHA 1983 s66 (concerning applications to tribunals) should be read as applying to a patient ‘with the assistance of a litigation friend if needed’ (para 13). The House of Lords had already decided in R (MH) v Secretary of State for the Department of Health [2005] UKHL 60M that the MHA scheme was ECHR compliant, but the solicitor sought to distinguish MH on the basis that it related to s2 where different timescales applied.

The FTT judge’s subsequent decision that ‘the matter may be closed as an invalid application’ (para 2), which was effectively a rule 8 strike-out decision, was the decision considered by the Upper Tribunal (UT). The challenge was made by way of judicial review, but there was a right of appeal so that route would have been more appropriate (see Tribunals, Courts and Enforcement Act 2007 s11).

UTJ Jacobs, dismissing the judicial review application, decided that MH could not be distinguished (the timescales in MH were not significant, still less decisive) and there was no ECHR breach: any apparent gap in the Tribunal Procedure Rules (in the protection of a patient’s right to bring a case to the tribunal) disappeared when the various duties and powers under those rules, the MHA 1983 and the Mental Capacity Act (MCA) 2005 were considered as a package. In conclusion, he stated that ‘[a]n application for the secretary of state to refer his case could have been made under s67 and, if that was refused, the patient could have had recourse to judicial review’ (para 21).

Comment: There are two main points to be remembered in practice from the cases considered above. First, the threshold for capacity to make a tribunal application is low, as Lady Hale stated in MH:

Most of the patients who are admitted under the formal procedures in the Mental Health Act 1983 do have the very limited capacity required to make an application to a mental health review tribunal or have someone else who can help them to make it. The exceptions may be patients with severe learning disability or severe dementia. …

Although an application has to be made in writing, it can be signed by any person authorised by the patient to do so on her behalf: see [rule 32(1)(b)]. This could be any relative, a social worker, an advocate, or a nurse, provided of course that the patient has sufficient capacity to authorise that person to act for her. The common law presumes that every person has capacity until the contrary is shown and the threshold for capacity is not a demanding one (paras 4 and 26, emphasis added).

Second, if patients do lack capacity to make applications then the solution is not for third parties, such as solicitors or nurses, to make applications without authority. It is for the system of tribunal referrals to be operated proactively in order to avoid article 5 breaches. Anyone can request a referral, and the MHA 1983's Code of Practice (Department of Health (DoH), 2015) states the following in relation to hospital managers:

Hospital managers should consider asking the secretary of state to make a reference in respect of any patients whose rights under article 5(4) of the ECHR might otherwise be at risk of being violated because they are unable (for whatever reason) to have their cases considered by the tribunal speedily following their initial detention or at reasonable intervals afterwards. In particular, they should normally seek such a reference in any case where:

  • a patient’s detention under section 2 has been extended under section 29 …
  • the patient lacks the capacity to request a reference, or
  • either the patient’s case has never been considered by the tribunal, or a significant period has passed since it was last considered (paras 37.45 and 37.46, emphasis added).

The UT decision makes no reference to the later European Court of Human Rights (ECtHR) decision in the MH case (MH v UK App No 11577/06, October 2013; [2013] ECHR 1008M), which found that, during part of MH’s detention, neither the existence of the secretary of state referral process nor habeas corpus were adequate remedies: the violation of article 5 only ended when a referral was eventually made to the tribunal at the nearest relative’s solicitor’s request. It is easy to see how the ECtHR might find a violation of article 5 on the facts of a case like OK’s, with the absence of a referral or valid application. The UT considered the question of whether the statutory scheme is capable of operating compatibly with ECHR rights rather than the question of whether, on the facts of this case, it did.

Fluctuating capacity to appoint/instruct solicitor

PI v West London Mental Health NHS Trust

This UT case concerns the proper approach of a FTT when faced with a patient with fluctuating capacity.

The legal representative had been acting on instructions from the outset of the case. The day before the FTT hearing the responsible clinician (RC) said that the patient lacked capacity to instruct a legal representative. The tribunal medical member had also expressed concerns based on his pre-hearing examination. At the outset of the hearing, however, both the RC and the legal representative stated that the patient had sufficient capacity, and the tribunal panel agreed to proceed on this basis.

The tribunal suggested that the patient give his evidence first and, during that evidence, the legal representative asked the tribunal to review the patient’s capacity to proceed so that he might act in the patient’s best interests and consider withdrawing the application. The tribunal refused this request because the patient had had capacity to make the application to the tribunal and the RC and the representative had stated at the outset that the patient had capacity to proceed.

UTJ Knowles QC in the UT noted Charles J’s view in YA v Central and North West London NHS Trust [2015] UKUT 37 (AAC)M; April 2016 Legal Action 32 that the patient’s capacity to appoint a representative ‘should be considered and kept under review by all involved including the responsible clinician, the hospital managers, a tribunal appointed representative, any representative who has been or has purportedly been appointed by the patient and the tribunal itself’ (para 32 of her judgment in PI). She considered that this requirement applied equally to ‘capacity to instruct a representative, to give instructions and to participate in tribunal proceedings’ (para 34).

She concluded that the application for a review of PI’s capacity required a considered response from the tribunal, and she accepted submissions that a short pause in the proceedings would have been desirable in order to establish whether the patient had that capacity, to ascertain his wishes about the continuation of the hearing, and to ascertain whether the legal representative remained instructed. The pause could have occurred at the conclusion of the patient’s evidence rather than immediately upon the request for a review. The tribunal was itself under an obligation to consider all the circumstances, rather than merely relying on the earlier statements of the representative and the RC. The failure to do so was an error of law.

However, the decision was not set aside because neither the way the hearing was conducted nor the reasoning of the tribunal had the effect of bringing about a hearing so unfair that the patient was materially disadvantaged. She deduced from the fact that there was no short pause sought, during which the representative could have assessed capacity and either requested appointment under Tribunal Procedure Rules r11(7)(b) or taken further instructions including on the possibility of withdrawal, that the representative was content to continue to act on the basis of instructions. The representative had continued to participate in the hearing, even after the patient had left and returned to the ward, and had made helpful submissions to the tribunal.

Adjournment (and permission to appeal)

LB v BMH

  • [2017] MHLO 10 (UT),
  • 14 March 2017

The solicitor in this case, who had been appointed under Tribunal Procedure Rules r11(7)(b) for a patient who lacked capacity to appoint a representative and who did not attend the hearing, sought an adjournment to obtain further information in order to persuade the tribunal to make a statutory recommendation for transfer. The tribunal refused, stating:

The solicitor representing the patient sought an adjournment as she had concerns about the quality of the evidence regarding the patient’s clinical treatment in the past. We have some sympathy with the view that the patient’s treatment history is incomplete. A summary of the previous treatments should be available to the panel wherever possible. However, the recent treatment history during the in-patient admission at [this hospital] was available to the panel. There was ample evidence before the panel that the patient is floridly psychotic and in our view the evidence satisfied the criteria for detention. We refused the request for an adjournment (quoted in para 7 of the UT judgment).

On review, the FTT judge had stated: ‘No points of law of general importance arise in this application. In the circumstances I refuse permission to appeal’ (quoted in para 8). UTJ Levenson noted, although it made no difference to his own decision, that this was the wrong test for permission to appeal.

The grounds of appeal argued that the reports gave very little information about the patient’s previous treatment, the reasons for the transfer to his current hospital, or any previous trials with clozapine. It was also argued that the adjournment application was made with a view to persuading the tribunal to recommend transfer, which was not possible without further information, and this was especially important because the patient was unlikely to make a tribunal application so may remain inappropriately placed until the next three-year reference.

The judge agreed with these grounds and noted that the application to adjourn was made not by the patient by by an experienced solicitor appointed by the tribunal, and there would have been no prejudice to the interests of justice in granting it. For these reasons, the refusal to adjourn amounted to a breach of the rules of natural justice and fair procedure and the decision was set aside.

Comment: The correct test for permission to appeal was not mentioned, but this guidance provided by Lord Woolf MR in Smith v Cosworth Casting Processes Ltd [1997] EWCA Civ 1099M; [1997] WLR 1538 is often summarised in UT permission decisions:

1. The court will only refuse leave if satisfied that the applicant has no realistic prospect of succeeding on the appeal. This test is not meant to be any different from that which is sometimes used, which is that the applicant has no arguable case. Why however this court has decided to adopt the former phrase is because the use of the word ‘realistic’ makes it clear that a fanciful prospect or an unrealistic argument is not sufficient.

2. The court can grant the application even if it is not so satisfied. There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying (emphasis in original).

For example, in TR v Ludlow Street Healthcare Ltd [2011] UKUT 152 (AAC)M, UTJ Jacobs summarised this as: ‘I may give permission to appeal if there is a realistic prospect that the decision was erroneous in law or if there is some other good reason to do so’ (para 7).

Legal representation at the tribunal

R (Brady) v Lord Chancellor

In this case, the patient wanted to be represented at a mental health tribunal by a solicitor who did not have a mental health law contract with the Legal Aid Agency (LAA). The patient sought judicial review of the Lord Chancellor’s decision not to provide public funding, and the decision of the tribunal not to appoint the solicitor under Tribunal Procedure Rules r11(7)(a).

Morris J confirmed that in order to obtain legal aid funding for representing a patient at a mental health tribunal, a representative must have a contract under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 covering mental health law, and that there is no ECHR right to public funding for a lawyer of choice. He noted that the appointment of a legal representative by the tribunal would have had no effect on funding, and that therefore the tribunal was not a relevant defendant in these proceedings.

Duration of deferred discharge

JMcG v Devon Partnership NHS Trust

In this case the UT rejected the patient’s argument that he be granted a discharge set to a date beyond the expiry of his current detention period.

The patient sought discharge from MHA 1983 s37, but felt that he would benefit from staying in hospital for some three months while his leave in the community was built up and suitable accommodation was found for him. Rather than seek an adjournment to allow for discharge plans to be considered by the tribunal, he sought a discharge deferred to a future date under MHA 1983 s72(3).

The tribunal’s reasons recorded that:

In effect given that his section was due to expire in early February 2017 [such] deferment would be for a short period. It would not be long enough to wean him from Diazepam and nor would it be enough time to give the best opportunity of finding appropriate discharge accommodation nor to reintroduce him to the community by way of controlled leave (quoted in para 15 of the UT judgment).

The patient appealed, arguing that the tribunal had, first, misinterpreted the law because it believed that it could not defer discharge beyond the date of the order authorising the patient’s detention and, second, failed to provide adequate reasons in relation to the statutory criteria.

UTJ Knowles QC decided that the tribunal ‘did not state unequivocally that, in law, a deferred discharge could not exceed the date on which the order authorising detention fell for renewal/expired though, according to the representative’s notes, the tribunal judge believed this to be the case’ (para 35), so rejected the first ground of appeal. She decided that the tribunal’s reasons overall were adequate, so rejected the second ground also.

She did not, therefore, need to decide on the correct interpretation of the law; however, she made the obiter comment that a tribunal ‘cannot specify a future date for discharge after that on which the authority for the patient’s detention expires’ (para 32). This conclusion was based on an extract from Gostin and Fennell, Mental Health: Tribunal Procedure (Longman, 2nd edn, 1992):

This follows from the fact that the tribunal derives its authority from the provisions in the Act relating to discharge. Its concern is to ensure that the patient’s freedoms are not unnecessarily curtailed. It is not empowered by law, either expressly or by implication, to extend a person’s detention beyond that which is specified in the Act. Clearly the provisions for delayed discharge do not override those provisions in the Act relating to the expiry of the authority for detention (quoted in para 31).

The patient argued that an inability to defer beyond the current authority for the patient’s detention would prejudice patients whose after-care arrangements would only be in place after that date. UTJ Knowles QC decided that there would be no prejudice to a patient as an adjournment could instead be sought if there was uncertainty about after-care arrangements: there would be nothing to prevent the tribunal from adjourning beyond the detention end date since ‘this would not have the same legal effect as a discharge pursuant to section 72(3)’ (para 37) and the RC could exercise the power to discharge before the end of the adjournment.

Comment: The UT's obiter conclusion seems to have been based on the false premise that a deferred discharge beyond the date on which the authority for the patient’s detention expires would have the effect of extending the period of detention.

Religious beliefs

DL-H v West London Mental Health Trust

The patient in this case appealed, on various grounds, a refusal to discharge him after a six-day hearing.

The first ground of appeal concerned whether, in relation to religious beliefs, the tribunal was entitled to prefer the evidence of medical experts to that of religious experts. Hospital chaplains had given evidence that his beliefs were normal in the Pentecostal church, although his present chaplain said that he ‘struggled’ with the patient’s belief that he was John the Baptist (para 7). The tribunal preferred the medical evidence, which did not accept that the patient’s ideas and behaviour were solely attributable to his strong religious beliefs.

UTJ Jacobs noted that an appeal to the UT lies only on a point of law: in the present context, there would only be an error of law if the tribunal’s findings were irrational (perverse in the sense that no tribunal acting judicially could properly have made them), which they were not. There is no rule of evidence that only the evidence of religious experts is admissible on matters of religion.

The second ground of appeal questioned whether the tribunal was entitled to make its own diagnosis contrary to the evidence at the hearing. The answer was ‘yes’, although it must abide by the procedural safeguards of: (a) having reasons for doing so; and (b) allowing the patient’s representative to deal with its view before making a decision. In any event, the tribunal’s diagnosis was additional rather than a substitution, and was not decisive to its decision.

The third ground of appeal related to whether the tribunal failed to explain its reasoning in a way that allowed the patient to understand how the tribunal reached its conclusions. UTJ Jacobs decided that even if the tribunal had made the mistakes as claimed, there would still be ample justification within its findings and reasons to show that detention was required. The appeal was therefore dismissed.

Transfer to high security

R (YZ) v Oxleas NHS Foundation Trust

The patient in this case challenged a decision to transfer him to Broadmoor on the basis that it was unlawful and in breach of his rights under the ECHR. He contended that he should instead have been transferred to another medium secure unit. The challenge was roundly rejected on the facts by the Court of Appeal.

Guidance as to the proper approach in such cases was given by Lord Thomas CJ. Although judicial review of compulsory medication under MHA 1983 s58 may involve a full merits review including expert evidence and cross-examination (see R (Wilkinson) v Broadmoor Hospital [2001] EWCA Civ 1545M), there was no basis for extending that approach to cases involving the transfer into or out of a high security hospital. In fact, in such cases:

[T]he court will pay the highest regard to the bona fide professional judgement of the responsible clinician. … [S]uch judgement would generally be sufficient evidence on which a court could determine the lawfulness of the decision to transfer, absent compelling evidence to the contrary (para 88).

He stated that, except in rare circumstances, challenges to such transfers would interfere with the proper operation of a carefully balanced system, which involves statutory roles for the secretary of state and mental health tribunal and which seeks to protect the interests both of the public and the convicted criminal.

Deprivation of liberty and conditional discharge

Secretary of State for Justice v MM; Welsh Ministers v PJ

In this case MM wished to be conditionally discharged into circumstances in which he would be deprived of his liberty within the meaning of ECHR article 5, but the Court of Appeal decided that the tribunal had no power to grant such a discharge.

The following three cases set out the background to the Court of Appeal’s decision:

  • In Secretary of State for Justice v RB [2011] EWCA Civ 1608M, the Court of Appeal had decided that there was no statutory authority for a deprivation of liberty once an order for a conditional discharge has been made, and that therefore any such deprivation of liberty would not be ‘prescribed by law’ as required by ECHR article 5.
  • In the subsequent case of Secretary of State for Justice v KC [2015] UKUT 376 (AAC)M; April 2016 Legal Action 31, Charles J noted that RB concerned a patient with capacity and the Court of Appeal had only considered the MHA 1983. He decided that, in the case of a patient such as KC who lacked the relevant capacity, the ratio of RB left scope for the necessary statutory authority to be found in the MCA 2005 instead. Therefore, a tribunal’s conditional discharge, which gives rise to a deprivation of liberty, would be lawful if that deprivation of liberty has been authorised under the MCA 2005.
  • Then in MM v WL Clinic [2015] UKUT 644 (AAC)M; April 2016 Legal Action 32, Charles J took this a stage further by deciding that a patient with capacity to do so can give a valid and effective consent to conditions of a conditional discharge that when implemented would amount to a deprivation of liberty. A lack of valid consent is a necessary condition for the existence of an article 5 deprivation of liberty (see Storck v Germany App No 61603/00, 16 June 2005; [2005] ECHR 406M, para 74) so Charles J’s decision would allow a patient’s consent to take the situation outside the scope of article 5 and the RB decision altogether.

KC was never appealed, but MM was appealed by the secretary of state. Having heard this appeal, together with an appeal in the PJ case (see below), on 8 and 9 June 2016, the Court of Appeal finally handed down judgment on 29 March 2017.

The Court of Appeal decided that:

  • The MHA 1983 does not provide the tribunal with the power to impose conditions on a conditional discharge that extend to the imposition of an objective deprivation of liberty – and, since the court in RB had proceeded on the basis that the patient agreed to the imposition of the conditions, the ratio of that case was plainly that ‘there is no power to impose a condition of a conditional discharge that is an objective deprivation of the patient’s liberty’ (para 21). The Court of Appeal also noted that a general condition that a patient must comply with a care plan, if that care plan would involve a deprivation of liberty, would be no more than a ‘stylistic circumvention’ of this jurisdictional limitation (para 6).
  • Where, as here, conditions amounting to a deprivation of liberty are compulsorily imposed by law, ‘the agreement of an individual cannot prevent that compulsory confinement from constituting a deprivation of liberty’ (para 28), and even if the consent could be valid (which it could not) it would only relate to the subjective element of deprivation of liberty and would not provide the tribunal with the power to impose the conditions.
  • In relation to patients who lack capacity, a conditional discharge could be deferred for arrangements to be made for the Court of Protection (or presumably the deprivation of liberty safeguards) separately to authorise a deprivation of liberty and provide ‘free standing deprivation of liberty safeguards’, but this ‘does not provide a basis for a condition of conditional discharge under section 73 that is outside the jurisdiction of the tribunal’ (para 35). This appears to mean that the conditional discharge should not contain any conditions relating to deprivation of liberty, and such matters should be left to the MCA 2005 decision-maker.

Comment: The Court of Appeal stated that if its decision presents practical difficulty ‘then it is a matter for parliament to consider’ (para 36). It is something that the Independent Review of the Mental Health Act 1983 is bound to consider (DoH, Policy paper: terms of reference – Independent Review of the Mental Health Act 1983, 4 October 2017). No voice unheard, no right ignored – a consultation for people with learning disabilities, autism and mental health conditions (DoH, Cm 9007, March 2015) sought views on whether the MHA 1983 should be amended to allow conditional discharge to authorise deprivation of liberty.

Patients who have been granted conditional discharge in the past are having their cases reviewed by the Ministry of Justice in light of the judgment, and patients who have been granted deferred conditional discharge will be having their cases reviewed by the tribunal. Until the matter is revisited by either parliament or the Supreme Court it may be that the way to maintain the status quo ante will be to consider carefully whether patients really have capacity in relation to the risk they pose in circumstances where conditions to address that risk, which deprive them of their liberty, are felt to be necessary. An NHS England briefing note on the Court of Appeal judgment comments in passing that the situation ‘creates an incentive for patients and their representatives to argue that they lack capacity, and/or that the restrictions post discharge do not amount to a [deprivation of liberty]’ (see Roger Banks et al, Briefing note, gateway ref 07333, 24 November 2017).

It is also of interest that the Court of Appeal stated obiter that a condition of residence in itself is not a deprivation of liberty and that ‘[t]he most common condition that might be a deprivation of liberty is continuous supervision including the lack of availability of any unescorted leave’ (para 29).

An application for permission to appeal in the case of MM was submitted to the Supreme Court in November 2017, despite the LAA refusing funding.

Deprivation of liberty and community treatment orders

Secretary of State for Justice v MM; Welsh Ministers v PJ (see above)

PJ argued that his community treatment order (CTO) should be discharged as a CTO cannot lawfully authorise deprivation of liberty, but the Court of Appeal rejected this argument.

The Court of Appeal stated that the purpose of the CTO scheme is ‘to achieve integration of a patient into the community with the minimum interference with the patient’s freedom of movement commensurate with the protection of the patient and the public’ (para 53). It would be contrary to this purpose if RCs lacked the power to impose a deprivation of liberty and this entailed recall rather than gradual reintegration into the community.

Further, the nature and extent of the power to impose conditions must, by necessary implication from the express provisions of the statute construed in their context, be ‘a power to provide for a lesser restriction of movement than detention in hospital which may nevertheless be an objective deprivation of liberty provided it is used for the specific purposes set out in the CTO scheme’ (para 51).

It was noted that the CTO scheme – in contrast with conditional discharge – is provided for in a statutory framework that is a procedure prescribed by law, and that the safeguards found therein provide ‘both practical and effective protection of a patient’s convention rights’ (para 54).

Comment: The decision here contradicts statements made in the Reference guide to the Mental Health Act 1983 (DoH, 2015, para 26.20) and MHA Code of Practice (para 29.31) that the conditions of a CTO ‘must not’ cause a deprivation of liberty, so surprised some. However, those who are disappointed that the tribunal can no longer grant a discharge involving deprivation of liberty (MM’s case) ought to welcome the ability of an RC to achieve the same end for a patient by means of a CTO (PJ’s case).

The requirement for ‘a lesser restriction of movement than detention in hospital’ may be hard to interpret in practice. If a hospital requirement (for instance, for all leave to be escorted) is continued on discharge to community accommodation, it may seem that this is the same level of restriction of movement. The answer may be that as accommodation outside hospital complies with the MHA Code of Practice’s ‘least restrictive option and maximising independence’ guiding principle (see chapter 1) it must involve a lesser restriction of movement. Alternatively, the answer may simply involve providing increased hours of leave.

It is understood that an application for permission to appeal in the case of PJ has been submitted to the Supreme Court, again despite the LAA refusing funding.

Relevance of ECHR to tribunal powers

Secretary of State for Justice v MM; Welsh Ministers v PJ (see above)

Djaba (formerly JD) v West London Mental Health Trust

The Court of Appeal decided that there was no need for the tribunal to consider ECHR rights in addition to the statutory criteria in either CTO cases (PJ) or other cases (Djaba).

The following UT decisions set out the background to the Court of Appeal’s decisions in PJ and Djaba:

  • In PJ v A Local Health Board [2015] UKUT 480 (AAC)M; April 2016 Legal Action 31, Charles J held that the tribunal must take into account whether the implementation of the conditions of a CTO will or may create a breach of article 5 or any ECHR right. If an issue remains to be decided on whether a breach exists or could be avoided (by authorisation or consent, or changing conditions), then generally the tribunal should adjourn to give an opportunity to make lawful the implementation of conditions. But if the treatment could not be provided without breach of ECHR rights then the tribunal (whether by the statutory criteria or under its discretion) should discharge the CTO.
  • In the subsequent case of JD v West London Mental Health NHS Trust [2016] UKUT 496 (AAC)M; February 2017 Legal Action 19, a restricted patient detained in Broadmoor in a ‘super seclusion suite’ built for the purposes of his confinement unsuccessfully sought discharge on the basis that a ‘proportionality assessment’ should be conducted pursuant to articles 5 and/or 8. In the UT, UTJ Jacobs reiterated his previously-expressed view that ‘convention right issues do not arise within the limited mental health jurisdiction of the First-tier Tribunal’ (para 25) (contrary to Charles J’s decision in PJ) but side-stepped the issue by deciding the case on the basis that the tribunal’s reasons were adequate and the result would have been the same whether or not the separate ECHR arguments had been considered.

These cases were both appealed:

  • In PJ’s case, the Court of Appeal overturned the UT decision on an appeal by the Welsh ministers, deciding that the tribunal had no jurisdiction to alter the statutory discharge criteria, and that it was inappropriate for the tribunal ‘to create an extra-statutory checklist which might lead to the discharge of a patient because of an alleged convention incompatibility’ (para 57) or ‘to investigate or determine whether there is an objective deprivation of liberty as a consequence of a CTO’ (para 59). Judicial review is the appropriate means to challenge the lawfulness of the conditions imposed by the RC, and the High Court ‘can take steps to remedy an unlawful condition without risking discharge of a patient in respect of whom the criteria for discharge are not made out’ (para 62).
  • On the patient’s appeal in Djaba (JD) it was argued that the approach of Charles J in PJ should also be applied to detention cases. However, the PJ appeal decision had been handed down by the time of the Djaba appeal decision, and the Court of Appeal agreed that ‘the decision in PJ is directly applicable to the issue in this case (even if not formally binding upon us) and that we must hold that the FTT did not have jurisdiction to conduct an assessment beyond that dictated by MHA ss72 and 73’ (para 45). The Court of Appeal made similar comments about the alternative remedy of judicial review, adding: ‘There is nothing in the ECHR which says that all matters arising in relation to a person’s detention must be capable of being determined by the same court or tribunal’ (para 50, emphasis in original).

Comment: An application for permission to appeal in Djaba was submitted to the Supreme Court in November 2017, despite (as with MM and PJ) the lack of public funding.

After-care and negligence compensation

Tinsley v Manchester City Council

In this case the Court of Appeal decided that the patient was entitled to free MHA 1983 s117 after-care services despite having been awarded damages in relation to the same services.

The patient had been awarded almost £3.5m damages in a road traffic personal injury claim, of which almost £2.9m represented future care. The accident had left him with an organic personality disorder, for which he was detained under MHA 1983 s3. Through his deputy, he paid for his own care arrangements upon discharge, but a new deputy argued that the local authority should provide after-care under s117. The High Court found in his favour and the local authority appealed.

The local authority argued, first, that on the true construction of s117 it was not obliged to provide after-care services if the claimant had been awarded damages for future care. The Court of Appeal rejected this argument, commenting that the local authority’s refusal to pay for after-care services was effectively the same as providing after-care services but charging for them (which would be unlawful: R (Stennett) v Manchester City Council [2002] UKHL 34M).

The second argument by the local authority was that to allow the claim would offend against the principle against double recovery. The Court of Appeal also rejected this argument: although a claimant will not be able to recover after-care costs from the tortfeasor if it is clear at trial that the claimant will seek to rely on local authority provision, that does not mean that a claimant awarded damages for after-care is thereafter precluded from making an application to the local authority.

Therefore, the local authority’s appeal was dismissed. The court concluded by saying that local authority concerns about the implications may be overstated: ‘Few claimants who have been awarded the costs of private care will voluntarily seek local authority care while the funds for private care still exist. If they ask for direct payments, the provisions of the Care Act will have to be considered. Any argument about such provisions is for another day’ (para 34). (See also 'Community care: update'.)

Comment: It is understood that Manchester City Council is seeking to appeal this decision to the Supreme Court.

After-care payments

Richards v Worcestershire County Council

This private law claim for repayment of care fees was allowed to proceed to trial.

The patient in this case, acting by his deputy and litigation friend, claimed repayment of care fees, which he had expended between 2004 and 2013 from personal injury damages, and which he maintained were all after-care services under MHA 1983 s117. Since 2013, the local authority had funded those services under s117. The local authority had applied to strike out the claim as an abuse of process, but the judge rejected the application, and the local authority appealed to the Court of Appeal.

The local authority’s first ground of appeal was that the patient should have brought the claim by judicial review rather than Part 7 of the Civil Procedure Rules. This was a point of law which was capable of resolution on the basis of the pleadings, and on which the Court of Appeal decided against the local authority.

The second ground of appeal was that the local authority’s alleged non-compliance with s117 did not entitle the patient to recover damages for unjust enrichment or restitution. This raised questions of fact, which were hotly contested, and so was not suitable for resolution on an application to strike out.

The appeal was therefore dismissed, which meant that the claim could proceed to trial.

After-care during s17 leave

R (CXF) v Central Bedfordshire Council

In this case it was unsuccessfully argued that the MHA 1983 s117 after-care duty is triggered during MHA 1983 s17 leave.

Funding under Children Act 1989 s17, contributing to the patient’s mother’s weekly drive of 240 miles to visit her detained son, ceased when he turned 18. During her visits she accompanied her son on bus trips, for which he was granted leave of absence under MHA 1983 s17, and she argued that funding should continue under s117.

Section 117(1) provides that:

This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a hospital direction made under section 45A above or a transfer direction made under section 47 or 48 above, and then cease to be detained and (whether or not immediately after so ceasing) leave hospital (emphasis added).

The Code of Practice states:

The duty on local authorities and clinical commissioning groups (or, in certain circumstances, NHS Commissioning Board (NHS England)) to provide after-care under section 117 of the Act for certain patients who have been discharged from detention also applies to those patients while they are on leave of absence (see chapter 33).

Section 117 of the Act requires clinical commissioning groups (CCGs) and local authorities, in co-operation with voluntary agencies, to provide or arrange for the provision of after-care to patients detained in hospital for treatment under section 3, 37, 45A, 47 or 48 of the Act who then cease to be detained. This includes patients granted leave of absence under section 17 and patients going on community treatment orders (CTOs). It applies to people of all ages, including children and young people (paras 27.26 and 33.2, emphasis added).

Dinah Rose QC, sitting as a deputy High Court judge, decided as a matter of statutory construction that the relevant question is whether, on the facts of a particular case, the patient has ‘ceased to be detained’ and has ‘left hospital’ (as opposed to merely having ‘left the hospital’) as required by s117(1) (paras 36 and 40).

The s117 duty would therefore not apply to every s17 leave period, a conclusion which she stated is not inconsistent with the Code of Practice. In some cases, the s117 duty to provide after-care services would be triggered during s17 leave of absence, such as the situation considered in R v Richmond LBC ex p Watson [1999] EWHC Admin 749M; (1999) 2 CCLR 402, in which the patient was discharged from hospital on s17 leave to live in a residential care home for a trial period.

On the facts of the current case, however, the claimant remained at all times detained in hospital and had not ‘left hospital’, which meant that no duty under s117 was triggered, and the claim was dismissed.

About the author

Jonathan Wilson is a consultant solicitor at Campbell Law Solicitors and runs Mental Health Law Online (www.mentalhealthlaw.co.uk).

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Type: Journal article🔍

Title: Mental health: update

Author: Wilson, Jonathan🔍

Organisation: Legal Action🔍

Date: 1/2/18🔍

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