Restrictions in his best interests? An “awkward interaction” between the Mental Capacity Act and sections 37 & 41 Mental Health Act

By Celia Kitzinger, 26th October 2021

On 8^th October 2021, I was told that the hearing I had asked to observe had been vacated, so I looked for another in a hurry. This one attracted my attention.

I’ve watched District Judge Glassbrook in court before and found him a careful and sensitive judge.  Last time it was a covid vaccination case.   This time it seemed from the – unusually detailed – list of issues provided in CourtServe that the hearing would be about where the person at the centre of the case, RS, would live and issues relating to deprivation of his liberty.

The list didn’t say whether the hearing was remote or in person,  As I don’t live anywhere near Northampton and would only be able to observe the hearing if I could do so remotely, I emailed the court (it was now 9.29am on the day of the hearing) to ask.   I received a reply at 9.47am saying that it was a remote hearing via MS Teams, and asked for the link at 9.55.  When it didn’t arrive, I assumed (as often happens) that I wasn’t going to receive the link in time for the hearing, but then at exactly 11.00am it pinged into my in-box.  I clicked on the link and entered the ‘waiting room’ at 11.01.  After eight minutes of staring hopefully at the message, “When the meeting starts, we’ll let people know you’re waiting”, I was admitted to the hearing.

There was no introductory summary (a reminder to counsel – please do these!) and the judge was in full flow as I joined the platform.  I gathered from what he said that there had been a request to vacate the hearing based on agreement, but the judge had refused it.  He had raised some questions he wanted counsel to address. 

This was interesting, since hearings are often vacated – i.e. they don’t happen – because the advocates have got together in a roundtable meeting (often with other key players like doctors, family members, social workers, IMCAs and so on) and agreed on a way forward.  My understanding is that they then let the judge know what they’ve agreed and – usually – the judge (in effect) tells them to go away and get on with it.  

But in this case, the judge had called them in to court to address the issues he was concerned about.

As I joined, District Judge Glassbrook was outlining these issues to counsel, who were: 

•  Luke Berry  of Browne Jacobson for the applicant, NHS Lincolnshire Clinical Commissioning Group
• Keri Tayler of No. 5 Chambers for RS (by his litigation friend, the Official Solicitor), the first respondent)
• and Kyla Bailey (who I haven’t been able to locate via google) for Lincolnshire County Council (the second respondent).

The issues the judge outlined^[1] were:

1.  Rule 1.2 representative: “The first issue is getting a Rule 1.2 representative and I wanted to know just how long that was going to take. I have a response via Browne Jacobson solicitors on that.” (While watching the hearing I googled “Rule 1.2 representative” and found this: “What is a Rule 1.2 Representative?”)
2. Capacity for occupation agreement: “The next issue was that RS had been assessed for capacity to enter into a licence – a residential licence – and the point was taken by the parties that there’s an obvious difference between a licence and a lease, and we’re not quite sure what the placement is offering.  I’d have thought that would be a quick and easy thing to address, but there we go!”  (Another quick google search – feeling very ignorant not to know the “obvious difference”(!) – and I found this:  “What is the difference between a lease and a licence?”)
3. Care plans: “The draft order was based on a care plan, and made reference to a care plan, but I didn’t have it, and I didn’t feel able to approve the care plan without having seen it.  I have since received a care plan, but when emails come in, they have to fit in around the rest of my work of course.”
4. Best interests: “Lastly, I haven’t seen a proper analysis that the placement is in RS’s best interests, nor that it is the least restrictive regime available.  I have been referred to an earlier statement from [NAME] which addresses that in a way – but if I may say, ‘in a way’, in that at that time RS was still a mental health patient and the move to a new placement had not yet taken place.  I had anticipated an analysis of best interests now that it has taken place.  I have been sent a more recent statement from [NAME] which covers some of the restrictions – locked doors and windows, one-to-one support, not going out unsupported and CCTV at the premises.  What I haven’t found yet, and I put it that way because I acknowledge it may be in the bundle of 500 odd pages and I just haven’t found it, is why these steps are required for RS and are in his best interests, as opposed to for public protection.  Of course, what I have to do is to take account of the Mental Capacity Act, and it may seem a bit strange, but nonetheless public protection is not part of the Mental Capacity Act, so I need to look at this for what is in RS’s best interests as opposed to what is in the public protection.  I can understand the current argument that there are only two alternatives – this placement or RS being recalled, having had a conditional discharge.  But as I understand it, discharge is conditional upon the present placement, but not on all the restrictions in place, and so I have to look at them in terms of RS’s best interests.  It’s also a bit of an odd situation in that the psychiatrist talks about RS possibly regaining capacity.  I gather this is more likely to take place if he’s in a quiet and calm environment.  I understand he now is in a quiet and calm environment.  Of course, if he regains capacity, the jurisdiction of this court, and lawfulness of any deprivation of liberty,  falls away.  I imagine that I need some recordings of this.”

Then he asked the advocates:  “Well, who wants to take up that lot?”

As an observer, I was a bit lost at this point.  I’d have liked an opening summary giving me some of the  background information I eventually learnt when I received the position statements from the applicant and first respondent.

Background 

The position statements I received after the hearing inform me that RS is 34 years old, autistic, with a mild learning disability and diagnoses of an unspecified organic psychosis (“likely paranoid schizophrenia, although in remission”), juvenile arthritis and Crohn’s disease.  

He’s been detained under ss. 37 and 41 of the Mental Health Act [MHA] 1983 , but since April 2021 he’d been granted leave (under s. 17(3) MHA  1983) to live at X Home as part of a transition plan ahead of an anticipated discharge.  

At the last hearing on 7^th July 2021, the court made final declarations that RS lacks capacity to conduct these proceedings and to make decisions as to his care and residence.  (There had subsequently been an assessment of RS’s capacity to enter into a “licence” agreement.)

On 17^th August 2021, RS was discharged from hospital to X Home – subject to conditions relating to his ongoing residence at that particular placement, compliance with his medication regime and activity programme, and ongoing engagement with his clinical team.  I think this means that he had been detained under the MHA as a result of a criminal offence (but if so, and what this offence was, what not mentioned in court or revealed in the position statements). 

The level of support for RS while he’s in X Home amounts to continuous supervision and control, and he’s not free to leave: this constitutes ‘deprivation of liberty’ under the ‘acid test’ in P v Cheshire West & Chester Council 2014.  

My background reading subsequent to watching this hearing (thank you to the lawyers who pointed me in the right direction) taught me that under the Mental Health Act 1983 the Crown Court may impose a hospital order together with a restriction order upon a mentally disordered offender, if this is considered necessary to protect the public from serious harm. This means that the patient is liable to indefinite detention in hospital for medical treatment and can only be discharged by the Secretary of State for Justice or the First-tier Tribunal. Such a discharge can be conditional, which means that the patient remains subject to recall to hospital, as well as to whatever conditions are imposed by the Secretary of State or the First-tier Tribunal. However, it is not permissible for any deprivation of liberty under a conditional discharge to be authorised by means of the MHA jurisdiction: separate authorisation is needed from another source  (Secretary of State for Justice v MM [2018] UKSC 60 (28 November 2018) (bailii.org), as applied in in Birmingham City Council v SR [2019] EWCOP 28). The courts have since said that the MCA can be used to authorise the deprivation of liberty alongside the conditional discharge, but there remains an issue as to whether the inherent jurisdiction can be used to authorise deprivation of liberty for people who have capacity.

So, the issue before the court is whether it is in RS’s best interests to be deprived of his liberty at X Home, at which he is subject to restrictions including: the front doors being locked (with entrance and exit via a fob), 1:1 support; window restrictors in use on the first-floor windows and CCTV monitoring outward from the doors.

Outstanding issues

There had obviously been some attempt to address the judge’s concerns before the hearing.  Under the heading, “Outstanding Issues”, the position statement from the CCG addresses three of the four matters raised by the judge (but not the fourth, best interests): 

• Rule 1.2 representative: The CCG spells out the problem with naming the Rule 1.2 Representative.  It might have been RS’s father, who’d previously been extensively involved, but he’s recently stepped back from an active role due to his own health concerns.  And RS has lost the advocate he had in the hospital since he’s now under the care of community mental health, and the referral to a community advocacy service is ongoing.  It’s likely to be that person who, once appointed, will assume the role of the r.1.2 representative.

• Capacity for Occupation agreement: The advocates had attempted to clarify whether the occupation agreement was a licence or a lease but had not yet determined the matter (“on its face purporting to be a licence agreement, the Court will be aware that it is not always what the agreement states which is determinative”).  The problem is that “the capacity assessment made in respect of the licence may need to be reviewed if it is determined that the agreement is in fact a lease”.  (At this point I am forced to conclude that I may lack capacity to sign either a licence or a lease, since I am struggling to get my head around the difference between the two.  I understand there’s quite a bit of confusion about this in social care too (TheRealTenancyTestFINAL.pdf (ndti.org.uk))

• Care plans: The CCG said that “further time” was needed to finalise the care plans.

It was the issue of why it was in RS’s best interests to be deprived of his liberty to the extent that he was that preoccupied the judge at this hearing.

Why are these restrictions required?

District Judge Glassbrook said that he recognised that there were only two options for RS: either he lived in X Home, or he returned to hospital.  “But I’m not talking about one placement compared with another. I’m asking why these restrictions are required.”  

Counsel for the CCG said that the need for the restrictions had been dealt with by one of the treating doctors in her statement, under the heading “Risks and Care Needs upon Discharge”.

“I simply don’t have the time to read 571 pages of bundle”, said the judge.  “Where does it say he needs the front and rear door locked, and the garden surrounded by a six-foot fence? Where does it say it’s in his best interests not to be able to leave the premises unescorted, or to have window restrictors, or external CCTV?”

Counsel for the CCG referred to a paragraph in the witness statement (which I didn’t have) and quoted something about RS being a “vulnerable adult  needing one-to-one supervision because of anxiety”. 

The exchange continued like this:

Judge:      Yes.  It doesn’t actually say he needs to be locked up.

Counsel:  I accept that.

Judge:      One of the reasons I wanted this hearing is, if we can identify gaps we have 

the opportunity to fill them before the final hearing. Because otherwise we

                 come to the final hearing, I ask the question, everyone shrugs, and we’ve

                 wasted time.

Counsel:   We have the opportunity to remedy this.

Judge:      There’s analysis that he needs care and support. I don’t think that’s 

                 controversial. We’ve got evidence that in fact we have restrictions on his

                  liberty – locked doors and so on. What I’ve not seen is that we need those

                  restrictions, or more to the point, that RS needs those restrictions on his liberty.

Counsel:  Yes sir, I accept the point.  I have to accept the point on the evidence that 

                  is currently before the court.

Judge:      That begs the question, if I haven’t got the evidence, as to how it is that you

                  say I can authorise those restrictions.

Counsel:   Because there’s evidence of the need for care and support in the matter, that 

                   is provided.

Judge:       But there’s not.  Correct me if I’m wrong.  We’ve got evidence that he needs

                  one-to-one support. That’s not controversial. We’ve got evidence that he’s got

                  one-to-one support. But you don’t need necessarily a locked door to have

                  one-to-one support. So where is the evidence of a need for a locked door? 

                  And if we don’t have that evidence, how is it that the applicant says I should

                  authorise it?

Counsel:   The difficulty is that the locked-door placement is the placement in which RS

                  is currently settled.

Judge:       So how it that you say I can authorise this gentleman being deprived of his 

                  liberty at the moment?

Counsel:   We say it’s on the whole of the evidence of the consultant psychiatrist, and 

                  indeed [NAME].

Judge:       Can I say that doesn’t do the job, saying ‘read the statement’.  What I need

                  isn’t so much saying ‘there are whole statements from people’.  What I need is 

                  content within the statements that addresses deprivation of liberty. And if I 

                  can remind the parties, one of the purposes of the Court of Protection is to 

                  ensure that those who are deprived of their liberty are so deprived on proper

                  grounds, with the least restrictions required for the individual.  I stress that 

                  because, unless you’re going to tell me otherwise, I don’t see that public

                  protection, admirable though it might be, falls within the Mental Capacity Act.

Keri Tayler (counsel for RS by his litigation friend the Official Solicitor) intervened to say:

“I don’t know if I can assist at this point. I think what the court’s hit on, and maybe something the parties haven’t addressed their minds to sufficiently before the hearing is this. He’s been discharged to a placement by the Ministry of Justice that amounts to a deprivation of liberty that, according to current wisdom, only the Court of Protection can authorise”.

The judge asked where the warrant was in the bundle and read out part of it.  It was clear that RS had been given a “conditional discharge” from the hospital and that one of the conditions was that he “must reside at X Home or other 24-hour accommodation as directed by the responsible clinician”.  The judge read out further conditions: “not to move accommodation without agreement… must comply with medication and take part in activity programmes”.  Looking up from the paperwork, the judge said, “There nothing I can see in that saying the doors must be locked.  Locking of doors is a matter for the Court of Protection. So where does that take us?^[2]”

Keri Tayler said, “I think the difficulty is that RS is not the only patient at X Home”.  

Nonetheless, said the judge, “The Court does not have the power to deprive RS of his liberty unless it is in his best interests. Nor does the Ministry of Justice nor the responsible clinician have the power to deprive him of his liberty. The Ministry of Justice, even if they pay my wages, doesn’t have the wherewithal to give me directions on how the Court of Protection is going to behave”.

“No, Sir”, said Keri Tayler: “We’ll have to make some urgent enquiries and come back to court”. 

The judge said he found this an “awkward interaction” between the Mental Health Act and Mental Capacity Act, adding: “I can’t say that I’ve got huge experience with s. 37 and 41 of the MHA. But it does seem to me that situation is not entirely satisfactory”.

He then moved to a discussion of the date for the next hearing: “It would be really handy if we could identify a date within the next month – or to put it another way, it’s absolutely vital that we identify a date within the next month.  There was some discussion of dates – and given the pressures on the court it’s likely that only one of current counsel will be available on the date that was finally fixed: 9.30am on Thursday 28^th October 2021.   This hearing will focus on “the big issue” (the judge’s words) of whether or not the restrictions on his liberty are in RS’s best interests.  

For the period of three weeks until the next hearing, the judge was content to authorise an interim deprivation of liberty – largely (I think) on the grounds that the only alternative available at present is for RS to be recalled to hospital (“and I can well imagine that if RS was able to walk out of the door on his own, that might lead to his recall, but it seems to me that can only be done as an interim measure in, frankly, an unsatisfactory situation”).  Keri Tayler pointed that that “this is currently the only available option and the Official Solicitor takes comfort from the fact that he reports himself being quite content and happy where he is. If he were objecting the situation might be quite different”.  

At the end of the hearing, the judge addressed me to say that if I hoped to be able to attend the next hearing (which I do!), I should get my request for the link in sooner, as he’d only received today’s request at the eleventh hour.  

Judges have often told me that I should make my requests to observe hearings in a more timely fashion. Sometimes they tell me this by way of explanation as they admit me late to hearings that have already started; sometimes the message is in emails explaining why I wasn’t admitted (they got my request “too late”); sometimes, as today, it’s intended to be helpful and supportive so that I don’t miss out on observing a future hearing.

But it’s enormously frustrating because in most cases where judges have told me that they received my request “too late” (or “just in the nick of time”), I’d actually requested the link to join the hearing as soon as the listings were published the previous day.  Even for this hearing, delayed by a failed attempt to observe a different hearing, and then by a listing problem which meant I didn’t know whether it was remote or not, there was an hour and five minutes between my request for the link and the listed start time.  I don’t understand what’s going wrong.  (And I thoroughly embarrassed myself trying to explain to the judge what had happened, and can only hope he wasn’t insulted at being told that his hearing was my ‘second choice’ after another had been vacated!)

I do plan to observe and report on the next hearing, and will make sure that it’s included among our “Featured Hearings” on the Open Justice Court of Protection Project home page, with access details, so that others can take the opportunity to observe it also.  

And a final note. It’s reassuring to me that, faced with an application to vacate the hearing, DJ Glassbrook was sufficiently careful, and attentive to the lack of evidence on best interests, to refuse it.  It may be that, when the case comes back to court, there will be evidence that the existing restrictions on RS’s liberty are indeed in his best interests.  But if they are not, I take it that the conditional discharge could be amended to specify a different placement, if a less restrictive one were to be found, and the responsible clinician approved it.  

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She tweets @KitzingerCelia

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^[1] Quotations are as accurate as I can make them, but as we are not allowed to audio-record court hearings, they are unlikely to be verbatim.

[2] My understanding (based on subsequent reading) is that the conditions that amount to the DOL/constitute the DOL cannot be in the conditions of the conditional discharge.  That is the whole point of MM.  They can only be in a separate care plan that is authorised by the COP.

Photo by Mitchell Luo on Unsplash