Thu, 15 Jun 2017
The Interface between the Mental Capacity Act and the Mental Health Act – Capacitous Consent and Conditional Discharge
In a recent decision, the Court of Appeal has overturned Mr Justice Charles (sitting as a judge in the Upper Tribunal, Administrative Appeals Chamber) that a capacitated patient detained in hospital under the Mental Health Act 1983 (“MHA”) can be granted a conditional discharge even if the conditions amount to an objective deprivation of liberty.
What is the background to this case?
MM has a diagnosis of mild learning disability and autism spectrum disorder. His behaviours are described as pathological fire starting. He was convicted of arson in April 2001 and the Crown Court imposed a restricted hospital order pursuant to s.37/41 MHA. He was conditionally discharged in 2006 but recalled to hospital in 2007 following a relapse in his mental health.
MM has capacity to make decisions regarding where he should live, and in May 2015 he applied to the First Tier Tribunal for a conditional discharge. The Tribunal refused MM’s application as they considered that they were bound by the case of RB v Secretary of State for Justice  1 WLR 2043 in which the Court of Appeal held that there was no statutory authority to deprive a capacitous patient of his liberty once an order for his conditional discharge was made. The Court of Appeal in RB also held, albeit obiter, that a capacitous patient could not consent to arrangements that would amount to a deprivation of liberty, because it would not amount to freely given and unfettered consent.
MM appealed to the Upper Tribunal. Charles J concluded that whilst conditions which amounted to a deprivation of liberty could not lawfully be imposed on a restricted patient under the MHA, the patient could conclude it was in his best interests as being the least restrictive option, and the deprivation could form part of the terms and conditions of a conditional discharge. Charles J also concluded that a capacitous restricted patient could give valid consent to conditions which amounted to a deprivation of liberty as he would not be being presented with a choice between two alternatives that could be imposed on him, and therefore the driver for consent would be a move from hospital and a step towards absolute discharge into the community.
What were the arguments before the Court?
The Secretary of State for Justice appealed to the Court of Appeal. She argued that it cannot be lawful for a tribunal to direct the conditional discharge of a patient detained under Part III of the MHA in circumstances where: (i) the conditions imposed would amount to a deprivation of liberty; (ii) the patient has capacity; and (iii) the patient purports to consent to the conditions. She argued that MM could not give valid and effective consent as such consent could not, in the circumstances, be unequivocal, voluntary and untainted by constraint.
MM argued that a capacitous person’s consent to the proposed discharge conditions could be freely given, and that such consent would result in any deprivation of liberty being lawful. He argued that although any care plan would necessarily involve terms that would deprive him of his liberty, that should not prevent a tribunal imposing a general condition that he must comply with in his care plan [paragraph 6]. MM further argued that the ratio of RB is very narrow and limited to the proposition that it is unlawful for a tribunal to impose conditions that amount to a deprivation of liberty, in breach of Article 5 ECHR. 
What was the decision of the Court of Appeal?
The Court of Appeal rejected MM’s arguments and allowed the Secretary of State’s appeal. It accepted that the powers to detain and discharge patients are clearly set out in the MHA, and that there is no statutory authority in the MHA which provides a power to either the Secretary of State or a tribunal to detain or otherwise deprive a patient of his liberty outside hospital [paragraph 17]. The Court of Appeal considered that the right to liberty is a fundamental right, which cannot be taken away unless that is the clear effect of the statute. The Court of Appeal further confirmed that RB is correct and binding. In referring to Arden LJ’s judgment in RB, the Court stated that sections 42 and 73 of the MHA (which provide the authority to discharge restricted patients) make no reference to detention other than in a hospital, and that “this would indicate that Parliament did not contemplate that on discharge a patient should be detained in an institution that was not a hospital.” [paragraph 17].
The Court went on to consider the effect of capacitous consent to conditions outside hospital which amount to a deprivation of liberty. It concluded that “where conditions amounting to a deprivation of liberty are compulsorily imposed by law, the agreement of an individual cannot prevent that compulsory confinement from constituting a deprivation of liberty”.  The Court endorsed the approach taken by Collins J in R (G) v Mental Health Review Tribunal  EWHC 2193 (Admin) who stated that “I do not think that consent to continuing deprivation of liberty can confer jurisdiction on a tribunal. A deprivation remains since the consent cannot convert it into something else”. 
What is the impact of this decision?
The irony of this decision is that by embracing human rights arguments intended to safeguard patients from arbitrary detention, the end result is likely to be less liberal to the patient. It is undoubtedly going to be more difficult to discharge capacitous patients, particularly restricted patients who may need a robust care plan in the community. It also leads to the result that capacitous patients who may be happy to agree to a restrictive care plan outside hospital cannot be discharged to such conditions where it results in a deprivation of liberty, whereas incapacitated patients can be discharged to identical conditions as their deprivation of liberty can be authorised by the Court of Protection or the DoL Safeguards.
It will become increasingly important for those involved in the care planning of patients applying for discharge to identify what alternatives to hospital are available in practice, what the exact terms of the care plan will be, and whether its application will amount to a deprivation of liberty in accordance with the acid test set out in Cheshire West. The Court of Appeal confirmed in MM that a condition of residence in itself is not a deprivation of liberty, and that the “most common condition that might be a deprivation of liberty is continuous supervision including the lack of availability of any unescorted leave”. 
For those representing clients at the First Tier Tribunal and the Mental Health Review Tribunal for Wales, it will be important to be able to address the tribunal on the concrete situation of the patient’s proposed placement and care plan if discharged. It is, of course, still open to the tribunal if they are satisfied that a patient will validly consent to supervision in the community to grant an absolute discharge or a conditional discharge that does not amount to a deprivation of liberty.
16th June 2017