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Cumbria, Northumberland Tyne & Wear NHS Foundation Trust & Anor v EG [2021] EWHC 2990 (Fam)

Lieven J gives reasons for allowing an appeal against the FTT decision to conditionally discharge EG applying s3 Human Rights Act 1998 to extend s72(1)(b)(i) Mental Health Act 1983 to include a requirement to treat in the community. She also dismissed an application to use the inherent jurisdiction of the High Court in respect of vulnerable persons (with capacity), to authorise a deprivation of EG’s liberty, as an unacceptable use of that jurisdiction.

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Backgound

EG is a 49 year old man. He has diagnoses of pervasive developmental disorder (but not a learning disability), emotionally unstable personality disorder with some features on the autistic spectrum, and paedophilia. He was convicted of sexual offences and detained under s37/41 MHA 1983, in 1994. In 2014 he was conditionally discharged by the First Tier Tribunal (FTT) to live in a care home. The care plan involved constant supervision and monitoring including of his telephone and internet use and a plan to secure his return if he left. He has not received treatment at the hospital since discharge.

Following the decision of the UKSC in Secretary of State for Justice v MM [2019] AC 712 where the Court found that a restricted patient could not be discharged from hospital under the Mental Health Act 1983  on conditions that amounted to a deprivation of liberty, EG was recalled to hospital. However, this was a technical recall as he remained at the care home having been granted leave under s17 MHA 1983 with a condition under s17(3) that he remained deprived of liberty at the care home. The effect of the recall was to trigger an automatic referral to the FTT.

The FTT concluded that as EG did not require treatment in hospital he had to be discharged but that his mental state meant that he needed to remain liable to recall. They therefore again conditionally discharged him. They were satisfied that he had the capacity to consent to his treatment and care.

The Secretary of State and the Trust appealed to the Upper Tribunal. The judge sat both as a judge of the Upper Tribunal and also as a judge of the High Court to decide whether to authorise any deprivation of liberty using the inherent jurisdiction in relation to vulnerable adults (with capacity).

The issues

The issue in the case was whether EG can lawfully remain in the community, rather than in hospital, but be deprived of his liberty in the community. This issue arises as a consequence of the Supreme Court decision in. If EG cannot be deprived of his liberty, the Trust would recommend to the Secretary of State and the Secretary of State would accept the recommendation that EG should be recalled to hospital (in real terms rather than the theoretical recall which is currently in place) because if EG is to remain in the community it needs to be with the clear legal authority to deprive him of his liberty.

The judge defined the issues in the case as:

a. Whether s.72 MHA 1983can be construed to allow the detention of a restricted patient in a community setting pursuant to s.17(3) MHA where that person has not resided in, or been treated by, a hospital for a considerable period of time. That issue itself is in two parts:

(i) Whether such a construction can be arrived at under a purely domestic statutory interpretation of the MHA alone;

(ii) Whether reliance on s.3 of the Human Rights Act 1998 ('HRA') can allow such a construction.

b. If the answer to (a) is no – then whether the patient, assuming he has capacity and therefore does not fall within the jurisdiction of the Court of Protection, can be subject to a conditional discharge and deprived of his liberty pursuant to the inherent jurisdiction of the High Court.

Interpretation of s72 Mental Health Act 1983

The judge decided that on the basis of the wording of s72(1)(b)(i) MHA 1983 the FTT was correct as there was no need for EG to receive any treatment in hospital (whether as in patient or outpatient).  He had not been to the hospital for 7 years and it would be counter-therapeutic for him to do so [paras 49-53].

The impact of s3 Human Rights Act 1998

The judge then considered whether the application of s3 Human Rights Act 1998 would produce a different outcome and concluded that as requiring EG to be deprived of his liberty in hospital would give rise to a breach of his rights under Article 5, s72(1)(b)(i) needed to be read as if "liable in law to be detained for treatment" included even where that treatment is being provided in the community. [paras 54-72]. Therefore the FTT was not obliged to discharge EG as to do so would breach his rights under Article 5(1) [para 73]. The appeal from the FTT was therefore allowed.

The use of the inherent jurisdiction

The judge having reviewed the authorities on the use of the inherent jurisdiction concluded that it was not possible to use a protective jurisdiction to dictate that EG was deprived of his liberty. In doing so she disagreed with the obiter conclusion of Baker LJ in Mazhar v Birmingham Community Foundation Trust [2021] 1 WLR 1207, preferring the analysis of Cobb J in Wakefield DC v DN [2019] EWHC 2306. She therefore dismissed the application under the inherent jurisdiction [paras 74-93].

Case summary by Nicholas O'Brien, Barrister, Coram Chambers

For full case, please see BAILII