Text:E89-07
CTOs and the Court of Protection
In two unreported cases heard in July of this year, in which consent orders were made but no accompanying judgments, Keehan J has endorsed the provision of psychiatric treatment via the Mental Capacity Act to patients discharged into the community under s.17A Mental Health Act (i.e. subject to Community Treatment Orders (“CTOs”)). We are very grateful to Ed Pollard and Rebecca Fitzpatrick of Browne Jacobson LLP for bringing these cases, and the summaries of the judgments, to our attention. We reproduce the summaries below; the comment that then follows is our own.
Background
AB and RC were based at separate units but both had been long term stays under S.3 Mental Health Act 1983 and had been detained in hospital for many years. The clinical team had determined that both were ready for discharge into the community and a suitable residential placement had been identified, but their conditions could only be appropriately managed in the community if they continued to be given their depot medication as prescribed, which on occasion required restraint.
The Issues
The plan was for both individuals to be discharged onto a Community Treatment Order (‘CTO’) which following the judgment of the Court of Appeal in Welsh Ministers v PJ [2017] EWCA Civ 194M would also serve to authorise the deprivation of their respective liberties. However, both individuals required regular medication given by depot injection; both were intermittently resistant / objecting to the injections meaning that appropriate physical restraint needed to be used. Both lacked capacity to make decisions about their care and treatment. The medication could not be given in the community under the MHA due to the resistance of both patients; accordingly it was decided that an application to the Court of Protection was necessary to obtain authorisation for the depot injections to be administered under the MCA in their best interests.
The application to the Court of Protection was made on the basis that whilst the request for the Court to authorise the administration of medication by force in the community alongside a CTO was unusual, this was the least restrictive option available in these cases and in the best interests of AB and RC; the alternative was that they would effectively spend the rest of their lives detained in institutions which the applicant Trust argued would not be in their best interests where a potentially less restrictive option was available with the approval of the Court.
Initially, the Official Solicitor, who was appointed to act on behalf of AB and RC, challenged the suggested approach; the OS expressed concern that the application was attempting to fill a lacuna between the MHA and the MCA which would, in effect, place those without capacity in a better position than those with capacity (who refused treatment).
The Final Orders
The matter was escalated to the High Court and heard before Mr Justice Keehan; he strongly came out in favour of the approach set out in the application. Following discussions in court about this, the OS revised their position and did not oppose the application.
Following the production of further evidence regarding the Care Plan and logistics of the ongoing care of AB and RC, Mr Justice Keehan ordered that the depot injections could be given under the MCA authorised by way of an order of the Court of Protection, with all remaining facets of AC and RC’s care being provided under the MHA. Mr Justice Keehan also authorised a ‘residual DoL’ under the MCA, limited to the occasions on which the depot injection was administered and the necessary use of holds was required.
Particular reference was made to S.64B (3)(b)(ii) Mental Health Act 1983 throughout the hearing which specifically provides for a situation whereby a patient can receive treatment whilst subject to a Community Treatment Order following consent being provided on their behalf by the Court of Protection.
No formal judgment was given in this case, as by the conclusion of the final hearing the parties were in agreement regarding the terms of the order sought.
Comment
These cases highlight yet more issues with CTOs, who are the (mostly) unloved cousin of detention under the MHA 1983, and which are under serious scrutiny by the independent review of the MHA 1983.
On one view, the Trust in this case are to be praised for bringing the case to the Court of Protection to seek specific authority for the individual acts required to secure compliance with medication, rather than relying upon the deeply questionable observations of the Court of Appeal in PJ to the effect that CTOs can provide authority to deprive a person of their liberty in the community. The decision reached in this case could therefore be seen as a pragmatic and sensible response to a situation in which AB and RC would otherwise be destined to remain in hospital under MHA detention for years at a time.
On the other, that the specific authority of the Court of Protection had to be sought to authorise acts amounting to a deprivation of liberty of two patients in the community might be thought rather to put the lie to the fact that CTOs were only envisaged (in England, at least) as being a measure agreed as between the patient and their RC, as per para 29.17 of the 2015 iteration of the Mental Health Act Code of Practice:
Patients do not have to give formal consent to a CTO. But in practice, patients should be involved in decisions about the treatment to be provided in the community and how and where it is to be given, and be prepared to co-operate with the proposed treatment.
The Supreme Court will hear the appeal in PJ on 22 October 2018 from which more guidance on this crucial area of law can be expected.