In Information Sheet, November 2015 no 1, we drew attention to MM v WL Clinic (2015) UKUT 644, an important judgement by Charles J, sitting as President of the Upper Tribunal on an appeal from a Mental Health Tribunal. Charles J is also Deputy President of the Court of Protection so, given that his decision concerned the question as to whether consent to conditions can overcome the conclusion that there is a deprivation of liberty, it is surprising that it has not received any attention from legal commentators.

I have argued ever since our case of SoS v RB

[2011] EWCA Civ 1608 that the autonomy of an individual in making decisions in an imperfect world should be respected. I also pointed to the consequences for patients detained in forensic settings of securing a life outside hospital where this would involve conditions curtailing their freedom of movement. So it has proved, with tribunals having to resort to various devices to allow patients no longer requiring a hospital setting to move into the community albeit with suitable management structures in place. Indeed the argument has continued to cause problems for CTO decisions as well as in guardianship applications.

Perhaps my enthusiasm for the importance of the decision in MM was not shared because it was a UT decision and RB was Court of Appeal but now, rather belatedly, the SoS has brought the decision before Charles again. In refusing the SoS leave to appeal in MM v WL Clinic & Anor [2016] UKUT 37 (AAC), he made the following points;

5. The first ground of appeal advanced by the Secretary of State is that I was wrong to reject his argument (that) the FTT has no power to impose conditions on a conditional discharge of a restricted patient that when implemented will create an objective deprivation of liberty.

8. Accordingly, it seems to me that if the argument of the Secretary of State on the ratio of the RB case is right it places significant difficulties in the way of implementing the underlying purpose of the MHA to:

i) promote a move of a patient from detention in hospital towards him or her living in the community, whilst

ii) providing the necessary protection of the public and the patient that his or her history indicates is needed.

9. Also that jurisdictional argument of the Secretary of State leads to what many would consider to be the counter intuitive result that a breach of a patient’s Convention rights thwarts the implementation of a conditional discharge or a CTO (or a direction by a guardian as to where the person should live) that:

i) is in the best interests of the relevant patient, and

ii) promotes that underlying purpose of the MHA

because the implementation of the relevant conditions is or would be a breach of those Convention rights (in particular Article 5, but potentially also Article 6, 8 and 14) and so unlawful.

13. This appeal to the Upper Tribunal raised the point whether for the purposes of Article 5 a restricted patient who has the capacity to do so can give a valid consent to the terms of a conditional discharge that, when implemented, will on an objective assessment create a deprivation of the patient’s liberty.

14. It was therefore a follow up to my decision in the KC case which related to a restricted patient who lacked the relevant capacity to consent to the conditions of his conditional discharge, his care package and any deprivation of his liberty that would arise from their implementation in which I concluded the FTT could impose such terms provided that any deprivation of liberty was authorised under the MCA. I also set out obiter views on the position of a restricted patient who had capacity.

Charles J, refers to his previous judgements in PJ v A Local Health Authority [2015] UKUT 0480 (AAC) and Secretary of State for Justice v KC and C Partnership NHS Foundation Trust [2015] UKUT [2015] UKUT 0376 (AAC) to query why, if the SoS took the view that he was wrong in his view that a person can consent to conditions which would otherwise amount to a deprivation of liberty, the SoS had acted as if the point was accepted. He also expressed concern that the SoS position was inconsistent. In any event he felt his decision that consent can displace the objective DOL criteria was not open to challenge. He also pointed out that, if it was intended to challenge his view, it would be necessary to invite the Supreme Court to re–address Cheshire West given that Lord Nueberger confirmed the principle established in Stork v Germany that the presence of valid consent was a fundamental component of the issue.

Charles j refused leave to appeal and it now it is up to the SoS to seek leave from the Court of Appeal directly. Unless the CA agrees to hear the matter and allow the appeal, I remain of the view that tribunals can direct a discharge where, viewed objectively, conditions would amount to a deprivation of liberty but where either the patient has capacity and consents or where the patient lacks capacity and consent is given by the Court of Protection in the patient’s best interests.

In my view, Charles J has introduced a healthy dose of rationality and humanity into a subject which has displayed some of the worst aspects of the way lawyers approach the socio philosophical subject of liberty.

John O’Donnell

Print Friendly, PDF & Email