When I succeeded in securing the conditional discharge of RB before the MHT back in 2011 my argument was a simple one; RB had capacity to make choices, he was provided with the option of leaving hospital provided he accepted an escort whenever he was off the grounds of the proposed accommodation, he visited the site and loved it, he wanted to go and was not in the remotest degree concerned by someone being with him when off site. Relying on the decision in Stork v Germany which holds that lack of consent is a component in any decision as to deprivation of liberty and the fact that RB was able to weigh up his options and was consenting, the tribunal discharged him.

The SoS did not want him out of hospital on any terms so appealed all the way to the Court of Appeal and got the decision reversed, on the disingenuous basis that they were seeking to protect his right to liberty under Art 5. Along the way, the situation was not helped by the way the Upper Tribunal tied themselves in knots trying to find a legal justification to support the discharge which was clearly right and humane. The Court of Appeal spent a lot of time dealing with surrounding issues but dismissed the issue of consent, which was the very core of my argument, with very little attention to the point. RB could not take it to the Supreme Court as he had savings and was paying privately. Our pro bono fund was exhausted and so we waited for another case, with non means tested legal aid to take it up again.

I addressed the issues in an article in the Solicitors Gazette 14/2/12 arguing that it was a perversion of the concept of liberty to force an elderly capacitous man to endure hospital detention rather than his chosen residence for no other reason that others decided for him that his liberty would be infringed by a condition that he be escorted in the community. I took the point up again in my address to the Mental Health Lawyers CoP Conference on 3 July 2015. Now we have the decision of Charles J in MM v WL Clinic (2015) UKUT 644.

I quote the most relevant passages;

127    The Secretary of State argued that the situation is analogous to that of a prisoner being transferred from high to low security or to hospital and such a prisoner cannot be said to consent to the underlying detention.  I do not agree because there the source of the underlying detention remains the same and in any event I see no reason why, if it was necessary to found a lawful move, the prisoner could not give informed and valid consent to the implementation of the changes to the manner in which he was to be detained.

128    Further, if this approach and conclusion of the Upper Tribunal in the RB case is right it creates difficulties in the way of the Court of Protection making the relevant choice on behalf of a patient who lacks capacity (which was an integral part of the Secretary of State’s jurisdictional solution to the problems created by the RB case). This is because the underlying theme of the MCA is that it enables things to be done on behalf of the patient that he could do himself if he had capacity and, as I have explained, the best interests jurisdiction of the Court of Protection is exercised by making choices between available options.  To my mind correctly no-one suggested that the Court of Protection could not make the equivalent choice for KC that the Upper Tribunal concluded RBcould not give a valid consent to.

129    Further, the conclusion of the Upper Tribunal in the RB case founds the surprising and arguably discriminatory result that a restricted patient over whom the Court of Protection has no jurisdiction, or who is not covered by the DOLS because he has the relevant capacity, is in a worse position than a patient who lacks that capacity.  In my view, the point made by the Secretary of State that the powers of the FTT are the same for both types of patient is not an answer to this problem.  This is because it is the result that matters and the relevant issue is not directed to the powers of the FTT but to whether consent to conditions can be given by or on behalf of the patient.

130    The choices presented to the Court of Protection and a patient with the relevant capacity can be limited or wide and easy or difficult.  For example, they may have to make choices between whether to have unpleasant and risky surgery for a medical condition or not to have surgery knowing the underlying condition may lead to death.  However the existence of only unpleasant choices does not prevent the individual patient having the right to choose or the Court of Protection from choosing on his behalf. 

131    Having said that limitations on, or the existence of influence in respect of, the choice are relevant factors as is shown for example by Freeman v Home Office (No 2) 

[1984] QB 524.  That case, at the appeal stage, turned on the issue whether a vulnerable prisoner could give valid consent for drugs to be administered to him when he had initially refused to provide consent.  The trial Judge found for the Home Office on the facts but acknowledged that a person’s consent must be voluntary.  His approach, endorsed by Lord Donaldson at 557, was as follows:

The right approach, in my judgment, is to say that where, in a prison setting, a doctor has power to influence a prisoner’s situation and prospects a court must be alive to the risk that what may appear, on the face of it, to be a real consent is not in fact so.

132    So, in my view, the FTT (and other decision makers) need to be alive to the possibility that an expression of consent may not be “real”, but if real consent is given to the relevant protective conditions there will be no deprivation of liberty under or in breach of Article 5. Given that many patients are legally represented before the FTT by panel solicitors, if a represented patient gives consent after discussing the matter with his lawyers then the FTT can usually be reassured that the consent is real.

However, it is the judges remarks at para 133 which are the most important;

133    Finally, the right to give or refuse consent to something is an expression of the autonomy of the individual and thus the state has a duty to respect that expression of autonomy under Article 8 ECHR. That right applies equally to a detained mental health patient who has capacity as it applies to any other person, particularly in the context of a possible discharge.  So it is at least arguable that a conclusion that a mental health patient does not have the right to give consent to abide by a set of conditions is not compatible with Article 8(2) ECHR.

This is wonderful news.  At long last, a proper recognition of personal autonomy to do as we choose in a world where, for a whole variety of reasons, we are not free to do as we please. We do what we can but, where we have capacity, we must not be told by others what is best for us. This is a lesson worth repeating in a number of contexts.

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