AB - bridging the gap; a High Court’s power to authorise a deprivation of liberty

The decision in AB is the first to be published following the Supreme Court judgment in the case of MM. 

MM confirmed that the Mental Health Act 1983 (MHA) does not give the first tier tribunal or secretary of state permission to impose conditions on the discharge of a patient which amount to detention or a deprivation of liberty, regardless of whether or not the patient consents.

Background

In 2009, the criminal court made AB subject to a hospital order and restriction order under sections 37 and 41 MHA. He was conditionally discharged in June 2016. The conditions imposed amounted to a deprivation of AB’s liberty and included a care plan requiring 24-hour supervision. AB had capacity, consented to the conditions in 2016 and continues to do so.

Following the Court of Appeal’s decision in MM, which was recently affirmed by the Supreme Court, the local authority in AB’s case had three options available to it. One of the options was to apply to the court to authorise the deprivation of AB’s liberty inherent in the care and risk management plan through the use of the inherent jurisdiction.

The local authority took this option and asked the court to exercise its inherent jurisdiction to authorise a deprivation of liberty as part of a conditional discharge.

Inherent jurisdiction

In her judgment, HHJ Knowles discusses the application of the inherent jurisdiction and noted that the courts have previously been careful not to limit or define the group of vulnerable adults for whose benefit the inherent jurisdiction can be used. However, the Local Authority argued that the case of Anderson -v- Spencer [2018] EWCA Civ.100 [2018] 2 FLR 547 could be applied in that:

1. it was clear in AB’s case that there was no remedy to this situation under the MHA
2. it was in the interests of justice to extend the inherent jurisdiction
3. there were sound public policy justifications for doing so

The local authority also submitted that the Court of Appeal in MM had foreseen the problems likely to be encountered in cases involving incapacitated, restricted patients and suggested that they be resolved by application to the Court of Protection. It would therefore be wrong for there to be no similar remedy for restricted patients who do have capacity, as noted at paragraph 33 of the Court of Appeal decision in MM.

Decision

HHJ Knowles noted that AB’s care and risk management plan had been carefully designed both for his benefit and for the protection of the public.

If the plan were to be ruled unlawful, AB would either have to consent to return to hospital or to a relaxation of his restrictions, which would ultimately put both him and the public at risk. After determining that the inherent jurisdiction could be used in this case, HHJ Knowles then discussed whether it should be used and noted that any decision may be short-lived in the event that the Supreme Court decision in MM reversed the Court of Appeal. 

Ultimately, HHJ Knowles determined to use the court’s inherent jurisdiction to  ‘bridge the gap’ in AB’s case and fill the legislative void which was created by the Court of Appeal in MM and ultimately confirmed by the Supreme Court on 28 November 2018. 

Comment

This case confirms that the courts will be willing to extend their inherent jurisdiction to authorise conditions amounting to a deprivation of a patient’s liberty in circumstances where that patient consents to a conditional discharge under the MHA. 

This is an important case following the decision in MM, as that case has left a ‘legislative void’ for conditionally discharged patients whose conditions amount to a deprivation of liberty. In addition, there was a risk that MM would result in higher numbers of patients being detained in hospital as the first tier tribunal has been faced with the choice between continued detention or discharge without sufficient protections for the public and/or the patient themselves. 

In cases where a patient is currently subject to conditions of discharge which amount to a deprivation of liberty, it provides an opportunity for an application to be made to the High Court to regularise the care plan by declaring it involves a deprivation of liberty and by providing regular court review of that plan.  

Without the proper authorisation of the courts, there is a risk that conditionally discharged patients could bring claims for judicial review or under the Human Rights Act on the grounds that their conditions are unlawful. Therefore, at this stage it is important to review all such care plans and make the appropriate application to the court to authorise the deprivation of liberty and provide for further review as required.

This may not be a final answer but it is a positive step in the right direction to allow patients to be safely and properly discharged into the community.

Please contact us for any support, advice or training in relation to this case and other mental health legal issues.