“I am very concerned … that the current situation is not tenable”: High-risk behaviour and questions about jurisdiction

by Daniel Clark, 22nd August 2023

The young woman (AB) at the centre of this case (COP 12953545) suffered a Traumatic Brain Injury following a Road Traffic Accident some years ago. 

She is engaging in high-risk behaviour, and the local authority is seeking an order from the Court that it is in her best interests to be conveyed to a specialist unit for assessment. 

First, though, it must be established whether the Court of Protection has jurisdiction over this case. 

This hearing, which took place (remotely) on Wednesday 15 August, 2023 before Mr Justice Keehan, was in the urgent hearings list at the Royal Courts of Justice. The parties and their counsel were:

• Conrad Hallin, of Serjeants’ Inn Chambers, representing the applicant local authority;
• AB’s mother (the first respondent) who was representing herself as a litigant in person
• Anna Datta, of Parklane Plowden, representing AB (the protected party) via her litigation friend, the Official Solicitor – as second respondent;
• Francesca Gardner, of 39 Essex Chambers, representing the Integrated Care Board (ICB), the third respondent.
  

Background to the case
Very helpfully, and in accordance with the (former) Vice President’s advice (here), counsel for the applicant local authority offered to provide a background to the case, which was welcomed by the judge. 

He explained that following the accident, AB had spent some time in a neurological rehabilitation unit but, 18 months later, went on leave one weekend and refused to return. She was subsequently discharged.

In June 2021, she moved to rented accommodation with a support package amounting to 22 hours. In November of that year, a judge made a final order authorising her deprivation of liberty. 

In June 2022 she bought the property, and the deprivation of liberty was amended. Later, the local authority applied for a more restrictive package of care, which would entail an adjustment to the deprivation of liberty. 

Counsel for the local authority explained that ‘It was known [AB] was drinking a lot, inviting men to her house to have sexual intercourse, and wasn’t engaging with support staff’.” This escalation of high-risk behaviour prompted a Mental Health Act Assessment, wherein AB was assessed as not eligible for detention. Between May and August of this year, AB has been assessed several times.

AB’s behaviour has continued to escalate, with Counsel noting that “most recently I think it’s important to note that [AB] removed her own contraceptive implant which carries risk, it’s not medically advised that be done, and she’s also assaulted a support worker.” A specialist unit has been identified as a place that AB can move to for, initially, a period of 12-weeks of assessment. 

There was not any dispute that AB lacks the capacity to make this decision nor that it is in her best interests to move to this unit. However, Counsel for the local authority explained that, “there has been, it’s fair to say, some controversy about the status and the interaction between the Mental Health Act and the Mental Capacity Act in this case”.

The issue, in other words, is whether the Court of Protection has jurisdiction. 

The Mental Health Act and the Mental Capacity Act: An uneasy alliance

Counsel for the Local Authority submitted to the judge that the Court does hold jurisdiction, appealing to the judgment of Mr Justice Charles in the case of GJ v The Foundation Trust [2009] EWHC 2972 [Fam]. 

In that case, Charles J concluded that a decision-maker should, when considering whether to deprive somebody of their liberty, first accept the primacy of the Mental Health Act. Going forth, the decision-maker should assume that there is no alternative available under the Mental Capacity Act, and ask whether the person they are assessing could meet the eligibility for detention under the Section 2 or Section 3 of the Mental Health Act.

In this hearing, Counsel for the Local Authority submitted that, “in this case we have a situation where an assessment has taken place and [AB] has been found not to meet the criteria for section. It is very indicative that this patient is not within the scope of the Mental Health Act”. 

Having established (at least in the eyes of the local authority) that the Court has jurisdiction in this matter, the local authority was asking the Court to approve an Order that the move to the unit is in AB’s best interests. 

Given AB is “not in any way engaging” but that “there’s no way of managing that [risk] in the community”, the local authority also wanted approval for a draft transition and conveyance plan, including the possibility of the use of “restraint and chemical sedation”. This would be shared with both a private ambulance service and the unit. 

Following Counsel for the local authority’s submissions, the judge stated, ‘If I can just observe on the jurisdictional point, I’m inclined to agree with you and Mr Justice Charles. It would be absurd to know that a psychiatrist found her not to be detainable and yet the Court was still precluded from exercising its powers under the Mental Capacity Act 2005 to afford some protection to [AB] as this very vulnerable person”. 

The judge also acknowledged he had been to see AB the day before. He stated that, when he met her he learnt that “she feels though she has not been fully engaged in plans for her life ….I am concerned that [AB] has the opportunity to feel at least she has the opportunity to feel like she is planning for her life…She doesn’t accept that she needs help. Certainly she indicated to me yesterday, she doesn’t accept that she needs treatment, although she was urged to keep an open mind about a placement at [Unit]…But I am very concerned, as I think is the Official Solicitor and no doubt the local authority, that the current situation is not tenable.”

Counsel for AB via the Official Solicitor submitted that they were still awaiting instructions on the jurisdiction issue and the draft order. However, she did confirm that the Official Solicitor “has significant concerns about the vulnerability of [AB]”, and it is the Official Solicitor’s view that is in AB’s best interests to go to the unit identified. 

The judge also heard submissions from AB’s mother, who stated that the move “is not something I can see [AB] accepting….that’s like a zero to nothing chance.” However, AB’s mother explained that she wants “to get her back, to get her rehabilitation, to get her back into the community with support – how she was prior to the last 8-to-10 months”. 

I found this quite striking, and I thought at the time (and still do) that I cannot imagine the situation that AB and her mother are in. I have cared for people (in an inpatient setting) whose high-risk behaviour, whilst living in the community, placed them in dangerous situations, and resulted in moments of high anxiety for their families. They would often relay feeling as if their loved one has been ‘lost’, especially when the behaviour was so out of character.  

Counsel for the ICB also had limited submissions, agreeing with the consensus on best interests, and relaying that they will continue to support the parties as needed. However, “given the potential legal argument, I intend to say very little unless I can assist you, apart from this – it is not in my submission as straightforward as my learned friend suggests.”

Counsel made reference to the recent judgment of Mrs Justice Theis, Vice-President of the Court of Protection, in the case of Manchester University Hospital NHS Foundation Trust v JS & Others. In this case, Theis J commended the Official Solicitor’s suggested questions that should be asked in cases such as: 

“(1) Is P a ‘mental health patient’? 

(2) Is P an ‘objecting’ mental health patient? 

(3) Could P be detained under s 3 MHA 1983” [s48]

Counsel for the ICB simply made reference to this judgment and so the full position of the ICB on this matter remains to be seen. Whilst I did receive the ICB’s position statement, this was written at an earlier time, and does not acknowledge this issue in any great detail.

Similar to earlier in the hearing, Keehan J did state that “on a provisional basis, I would find it very unattractive that [AB] is not eligible for decisions made in the Court of Protection. Whilst she may not be judged to be detainable under the Mental Health Act, that may not be the same in the future. It leaves the question of what is to be done.” 

Given the fact that there is a sense of urgency in these proceedings, the judge decided to schedule another hearing for next week (week commencing 21 August 2023). At the very least, the “jurisdiction issue” will be dealt with at this hearing, as can what other evidence is needed for the formulation of a best interests decision.  

Transparency matters

Neither Celia Kitzinger nor I received the Transparency Order before this hearing, instead receiving it when the hearing was finished.

The purpose of a Transparency Order is to enable transparent reporting of Court of Protection proceedings.  This is usually achieved by permitting reporting but protecting the identity of the protected party (P), where they live, and the identity of carers and family members. It is usual to be able to name the public bodies involved in a case. After all, they are funded by the taxpayer, and cannot be accountable to the people who live in their area if they do things that go unreported.  

However, this Transparency Order (made by a different judge, Sir Jonathan Cohen, in an earlier hearing) extends further. It states that we cannot publish anything that “identifies or is likely to identify…any of the parties”. This goes far beyond protecting the identity of the protected party and her family. It means that we cannot name the local authority or the ICB. 

As she has done before (albeit much too often) Celia Kitzinger emailed the judge asking for the Transparency Order to be varied. She received an email not too much later, thanking her for her email and advising the judge is seeking the views of the parties. Hopefully, this can be addressed by the time of the next hearing.

Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student, funded by WRoCAH, in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. He tweets @DanielClark132.