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Home > Judgments > 2019 archive

Birmingham City Council v SR; Lancashire County Council [2019] EWCOP 28

Applications for authorisation of care plans, inter alia, for deprivation of liberty [‘DoL’] of restricted patients under ‘Hospital Orders’– applications allowed – Schedule 1A of the Mental Capacity Act 2005 [‘MCA’], the Mental Health Act 1983 [‘MHA’] and M v Secretary of State for Justice (2018) 3 WLR 1784 considered.

Application
The local authorities both applied for authorisation of care plans of 2 restricted patients, which included plans to deprive the respondents of their liberty, following their discharge [JTR] and upon their proposed discharge [SR], respectively, from hospital. Notwithstanding the applications were made under the streamlined procedure, the court decided both cases should be heard together at an oral hearing, given they raised issues about the interrelationship between the MCA and MHA.

Representation of the respondents
The court considered adjourning the case to permit the respondents to be represented, given they were assessed as not having capacity, but proceeded on the basis that both respondents were strongly supportive of being 'deprived of their liberty', it was in their best interests that they should be and, in SR's case, that delay would mean a longer, but unnecessary, period of detention in a psychiatric hospital, as opposed to a more suitable community placement. The court was confident there was neither prejudice to, or interference with the Art. 6 and 8 rights of, the respondents.

Law and discussion
Summarising M v Justice Secretary, the court concluded that, upon discharge of a restricted patient, that neither the Secretary of State or the First Tier Tribunal [F-tT] had power under the MHA to impose a condition which 'would amount to a [DoL] within the meaning of Article 5,' even where the patient consented.

The court then went on to consider what powers under the MCA the CoP had in respect of restricted patients (which the Supreme Court had not considered in M v Justice Secretary) who:

i) do not have capacity (as was the case with both SR and JTA); and,

ii) are eligible for and/or are proposed for conditional discharge from hospital.

The court concluded that both SR and JTA were not "Persons ineligible to be deprived of liberty [under Schedule 1A of the MCA]", as they fell [or potentially fell] into Case B, as patients who, by virtue of a hospital order [s. 37 of the MHA], remain subject to the 'hospital treatment regime' [para 8 of Schedule 1A], and hence, a DoL could be authorised so long as it was not inconsistent with the requirements of the MHA regime (para 3(2) of Schedule 1A of the MCA). The latter proviso, the court concluded, 'covers the situation where there is a conflict or inconsistency between the authorised course of action under the MCA (i.e. the care plan including the [DoL]) and any requirement under the MHA.' The court also concluded that 'Happily, there is no such conflict here.'

The court touched upon the whether there was a difference of substance between care plans where the DoL has elements of protecting the public and where the DoL is purely for the patient's care. For the reasons given by Moor J in Y County Council v ZZ [2013] COPLR 463, the court concluded it was a false dichotomy, as the DoL prevented, inter alia, the risk to the restricted patient of recall to hospital for breach of condition.

The court confirmed that in its view that 'The caselaw establishes that the Court of Protection may make declarations and orders concerning best interests, including deprivation of liberty, in advance of any discharge under the MHA, see DN v Northumberland, Tyne & Wear NHS Foundation Trust [2011] UKUT 327 (AAC). In a case such as SR it is appropriate that this should happen, so that the FTT and the Secretary of State can be confident that SR will be deprived of his liberty to a proportionate degree when he is discharged into the community.'

The respondents
SR

The peculiar features of SR's case were that he was diagnosed with mild learning difficulties and autistic spectrum disorder. He had been convicted in 1977 and 2013 of a sexual assault and attempted sexual assault, respectively on his mother. Both offences took place under the influence of alcohol. Following the 2nd offence he had been detained under a restriction order [s. 37/41 of the MHA], but had been assessed as eligible for discharge [ss 72/73 of the MHA] and 'could be adequately managed in a robustly supported community placement'. The court noted that this was a 'somewhat unusual case where the patient thinks he needs more supervision and more restrictions on his liberty, because he over estimates his needs and the risks he pose.', which, in the opinion of the independent best interests' assessor, derived from 'a distorted and egocentric perception of the world that makes him unable to weigh up the information needed to have capacity to consent to the care, treatment and support he needs to live in the community.', such that SR 'considers that he requires 24-hour supervision around women in order to keep them safe from him.'. Both the psychiatric consultant and assessor noted that SR was very anxious regarding his ability to cope and was highly socially embarrassed around women. However, 'SR has been able to manage with females he knows, and that there is no objective evidence that his concerns about the risk of assaulting women would occur.'

JTA
JTA suffered from lifelong learning disabilities, communication difficulties and bi-polar disorder, had periods of admission of psychiatric units, and was detained in hospital following a sexual assault on a female. The F-tT made a conditional discharge, with a condition that JTA 'shall not be permitted to leave his accommodation unless accompanied and supervised at all times', which the court concluded amounted to a DoL which was most likely unlawful, the detention being subsequently authorised by the CoP when the court considered the residence and care plan.


Summary by Barry McAlinden, barrister, Field Court Chambers

You can read the full judgment of Birmingham City Council v SR; Lancashire County Council [2019] EWCOP 28 on BAILII