Court of Protection Hub
  • Home
  • Resources
  • Cases
  • News & Views
  • About the book
  • About the site

Cases

MM v (1) WL Clinic and (2) MHU [2015] UKUT 644

9/3/2016

 
This case first came before Mr. Justice Charles in Secretary of State for Justice v KC and C Partnership NHS Foundation Trust [2015] UKUT 376 (AAC), in which a restricted patient lacked the capacity to consent to the conditions of his conditional discharge, his care package and any deprivation of his liberty that would arise. 

The FTT were not invited to apply the conclusion reached in the KC case, as was requested. Charles J commented this leaves an unsatisfactory position for restricted patients that the Secretary of State would be reserving or simply not advancing and argument on their jurisdiction and may be considering the exercise of his power to direct a conditional discharge on the basis that the KC case was wrongly decided. This clearly causes problems and creates the possibility of time and money being wasted by patients, the tribunal, local authorities and the Court of Protection.

The appeal raises the point whether for the purposes of Article 5 ECtHR a restricted patient who has the capacity to do so can give a valid consent to the terms of a conditional discharge that, when it is implemented, will on an objective assessment create a deprivation of the patient's liberty.

The appeal was argued on the bases that:
  • the decision in the KC case on the ratio of the RB case was not being challenged, and
  • the central issue was whether the obiter views in respect of a patient with capacity were correct.
​The Facts
MM is 32 years old with diagnoses of mild learning disability, autistic spectrum disorder and pathological fire starting. On 27 April 2001 he was convicted of arson. A hospital order under section 37 of the Mental Health Act 1983 was imposed, with a restriction order under s.41 of the same act. After a short conditional discharge in 2006, MM was recalled to hospital in April 2007 following a deterioration in his behaviour. The main areas of serious risk that he poses relate to fire starting and his relationships with females.

On 18 May 2015 the FTT considered MM should be transferred to another low secure unit. However, two experts considered MM could be conditionally discharged and managed in the community with a suitable care package in place. Applying the Cheshire West criteria, it was clear any care plan would deprive MM of his liberty which would be in breach of Article 5, unless it was rendered lawful by MM's consent. It was held that any consent given would not be genuine, properly considered or reliable given the history of MM's propensity for changing his mind.

The FTT were not invited to apply the conclusion reached in the KC case, as was requested. Charles J commented this leaves an unsatisfactory position for restricted patients that the Secretary of State would be reserving or simply not advancing an argument on their jurisdiction and may be considering the exercise of his power to direct a conditional discharge on the basis that the KC case was wrongly decided. This clearly causes problems and creates the possibility of time and money being wasted by patients, the tribunal, local authorities and the Court of Protection.

The Law
The court considered, in particular, the cases of Secretary of State for Justice v RB [2012] 1 MHLR 131 and B v Justice Secretary [2012] 1 WLR 2043.

In RB Charles J concluded, as per the power conferred by s.73 of the MHA, that a deprivation of liberty resulting from conditions imposed on the conditional discharge of a restricted patient cannot be founded on the MHA alone. Therefore, the FTT cannot, when directing a conditional discharge, impose conditions that, when implemented, would be a deprivation of liberty in breach of Article 5 and so unlawful.

The court also considered s.37, ss.41-42, ss.72-73 and s.75 of the Mental Health Act 1983, which were reproduced in the judgment for ease of reference.

Decision
The appeal was allowed. The court remitted MM's application to the FTT on the bases that:
  • it should apply the decision in Secretary of State for Justice v KC and C Partnership NHS Foundation Trust [2015] UKUT 0376 (AAC) (the KC case) in determining its jurisdiction; and
  • it should apply the conclusion in the judgment (in particular paras. 64-68).
Discussion
This case provides clarity and guidance in an area of law which followed a confusing progression through previous cases, which left many restricted patients without options when considering a potential discharge from hospital. This case may aid practitioner’s when considering a strict care plan.

The following guidance and questions can be drawn when dealing with a restricted client:
  • Consider the client’s diagnosis and whether there is an alternative to hospital detention;
  • Decide whether a capacity assessment is needed to establish whether the client has capacity to consent to a care package which may amount to a deprivation of liberty;
  • If the client has capacity, will they consent to a restrictive care package?
  • If the client has a propensity to change their mind, consider the effect if consent were given and was subsequently removed;
  • Balance the advantages and disadvantages of the alternative options available to detention. Is detention in a hospitable less desirable than the alternatives?

​Read the full text of the judgment on Bailii

Comments are closed.
    Case summaries on every Court of Protection case & other relevant decisions with links to the full judgment where available. 

    Support the Hub
    This site is free to access but if you find it useful then please consider a contribution by way of support for our work.  Click here to contribute.

    Sign up for our free email alert

    We do not share your details with any third parties and you can unsubscribe at  any time

    RSS Feed


    More from Bath Publishing


    Browse

    Categories

    All
    Advance Decisions
    Assessments
    Best Interests
    Capacity
    Committal
    Contact
    Contempt Of Court
    Coronavirus
    Costs
    Deputies
    Disclosure
    DNA Testing
    DOLs
    End Of Life Decisions
    Finance
    Gifts
    Habitual Residence
    Human Rights
    Inherent Jurisdiction
    Injunctions
    International
    Jurisdiction
    LPA/EPA
    LPAs
    Medical Treatment
    Personal Welfare
    Practice & Procedure
    Pregnancy & Contraception
    Publicity
    Religion
    Reporting
    Residence
    Settlement
    Sexual Relations
    Statutory Will
    Sterilisation And Termination

    Archives

    February 2023
    January 2023
    December 2022
    November 2022
    October 2022
    September 2022
    August 2022
    July 2022
    June 2022
    May 2022
    April 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    October 2021
    September 2021
    August 2021
    July 2021
    June 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    September 2020
    August 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    January 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    June 2019
    May 2019
    April 2019
    March 2019
    February 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    April 2018
    March 2018
    February 2018
    January 2018
    December 2017
    November 2017
    October 2017
    September 2017
    August 2017
    July 2017
    June 2017
    May 2017
    February 2017
    October 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015


Powered by Create your own unique website with customizable templates.
  • Home
  • Resources
  • Cases
  • News & Views
  • About the book
  • About the site