Case Law Update
MHLA November 2014
Tam Gill & Sophy Miles
Bostridge v Oxleas NHS
Foundation Trust (2014)
EWCA Civ 1005
The background




Permission to appeal to Court of Appeal granted
B was discharged from detention by the FTT (Mental Health) in
April 2009, discharge being deferred so a Community Treatment
Order could be put in place.
However - The CTO was unlawful due to the deferred discharge
date pre-dating the CTO; in other words he was not still detained
at the point the purported CTO came into being.
When his condition deteriorated in August 2009 and B was
recalled to hospital and detained thereafter (with six days of
leave) until November 2010, his detention was at all stages – and
was admitted by the Defendant Trust – to be unlawful.
The background



The Defendant admitted that the period of 442 days
amounted to false imprisonment and/or unlawful
deprivation of liberty for purposes of Article 5 ECHR.
B’s case was reviewed twice by a Tribunal during his
detention (with no one realising the fact that the
detention was unlawful)
On both occasions the Tribunal found that his
condition warranted continued detention. B never
realised that his detention was unlawful, nor did anyone
involved in his care
Court of First Instance


There was no evidence that B had suffered
damage during the period of unlawful detention
due to his being unlawfully detained, and that he
would have suffered the same unhappiness and
distress had been lawfully detained.
Q: how to assess the quantum of damages that
fell to be awarded B for both false
imprisonment and unlawful deprivation of
liberty?
Court of First Instance





Following the case of Lumba:
1. the tort of false imprisonment is established even
where the detention has caused no loss because it
would have been inevitable if the detainer had acted
lawfully;
2. there is no principle in the law of England and Wales
of “vindicatory” damages;
3. where there is no loss suffered as a consequence of
unlawful detention, damages for false imprisonment
will be nominal.
Nominal damages awarded to B (£1.00)
Court of First Instance


Court of First Instance in Bostridge held that:
It being accepted that there was no loss: the Claimant
would have been detained had his illness been correctly
addressed via s.3 MHA 1983, as it should have been on
19 August 2009, and thereafter he would have received
precisely the same treatment and he would have been
discharged in September 2011. HHJ Hand QC
therefore held that he was entitled to judgment and to
nominal damages.
The appeal application



B applied for permission to appeal. The transcript of the
permission hearing before Kitchin LJ ([2014] EWCA Civ 1005)
contains the following material passages:
“ Mr Drabble submits that in approaching the matter as he did
the judge fell into error because the decisions of the Supreme
Court in Lumba and Kambadzi do not establish that only
nominal damages follow where there was a complete absence of
statutory authority for a detention.
To the contrary, Mr Drabble argues, there is a distinction
between an unlawful detention where there was no threshold
power to detain and detention which is unlawful on other
grounds despite there having been lawful authority to detain in
the first place.
The appeal application


Moreover, Mr Drabble continues, the Act reflects the
particular importance of compliance with the
procedural requirements for lawful detention and it is
simply no answer to the appellant's claim to say that he
could have been detained had the appropriate
procedures been followed.
What is more, says Mr Drabble, the appellant has lost
the protection of the rights and procedures which
Parliament has provided in the Act for vulnerable
persons such as him. That, he says, is a real not a
nominal loss.”
The view of the Court of Appeal



The Court of Appeal, in granting permission, note:
“these are points which merit consideration by this court, both
because an appeal would have a reasonable prospect of success
and because the appeal raises a point of principle, namely the
approach to be adopted where a person responsible for an
unlawful detention was not in a position lawfully to detain the
subject without ensuring that an important condition precedent
had been fulfilled, the condition precedent being compliance
with the safeguards contained in section 3 of the Act.
Further, in the circumstances of this case, compliance with those
safeguards was not a matter which lay wholly within the power
of the respondent.”
Comment (1)

Local authorities and CCGs will be likely to
looking to the appeal with some interest given
that – if (in broad terms) HHJ Hand QC’s
approach is correct – this will have a significant
impact upon the quantum of any damages that
those whom the decision of the Supreme Court
in Cheshire West have shown are unlawfully
deprived of their liberty might be able to recover
Comment (2)

Lumba and Kambadzi were immigration cases
where the original detentions were lawful but
became unlawful due to public law breaches in
that the Home Office ( as a result of public
outrage over the release of "criminals" prior to
deportation) operating a succession of secret
policies which amounted to a "near blanket ban"
[ Lumba, Para 5] on release.
R(L) v WLMH NHS Trust
[2014] EWCA Civ 47
The background



L was transferred from an NHS - MSU in the
South to enhanced MSU in the private sector in
the North following increase in risks
At the unit in the North, his risks increased
again, and he was placed in seclusion
Due to the serious and imminent risk he posed
to himself and to others, a referral was made to
the high secure estate for assessment and
admission
Court of First Instance



CFI set out a 830-odd paragraph decision, which
was appealed by the Trust in which the HSH sat
CFI listed all manner of requirements to be
considered…
Court of Appeal set out an simpler and more
relevant outline for the procedure to be
considered when referring patients “up” the
security ladder from MSU to HSH (in a much
shorter judgement)
Court of Appeal:




‘The
common law duty to act fairly was engaged when a
decision was made as to whether to transfer a patient detained
under the Mental Health Act 1983 from a medium to a high
security hospital.
Where the decision was largely a clinically-based decision with a
rationing aspect, there was a need for circumspection as to what
procedure was required.
Absent urgency, a clinical reason precluding notification, or
some other reason such as the exposure of other patients or staff
to the risk of harm, the “gists” of the letter of reference to the
high security hospital by the hospital that wished to transfer the
patient and the assessment by the clinician from the high security
hospital ought to be provided to the patient and/or his
representative,
…and the patient should be afforded an opportunity to make
written submissions to the decision-making panel.’
Comment


In practical terms, what this judgement does is
set out a procedure that should be followed
when patients are to be referred to the high
secure estate
In practice, LR would write to the RC, asking
for the referral letter and the assessment report,
thereafter take client’s instructions and make
written representations to the HSH Admissions
Panel on behalf of the client
R
(Lee-Hirons) v SSJ
(2013) EWHC 1784
(Admin)
The background

LH claimed that the decision of the Defendant,
the Secretary of State for Justice (SSJ) to recall
him, pursuant to s.42(3) of the Mental Health
Act 1983 to be detained in a hospital on 19 July
2012 was unlawful. LH sought a declaration to
that effect and damages for false imprisonment,
or pursuant to the Human Rights Act 1998
The background





10 November 2006 - LH was convicted of arson and
burglary. He was made subject to s.37 and 41 MHA
There was a difference in opinion as to the diagnosis of
LH over the course of his admission.
LH was conditionally discharged by the tribunal on 11
June 2012
LH was recalled by S/S on 19 July 2012
The recall warrant didn’t set out reasons for recall, of
which LH was informed orally.
The legal position


Secretary of State has power to recall CD’d
patient
But: “he has to believe on reasonable grounds
that something has happened, or information
has emerged, of sufficient significance to justify
recalling the patient” – see: R(MM) v Secretary
of State for the Home Department [2007]
EWCA Civ 687 at para 50
The legal position

S/S has to consider whether there had been
such a material change of circumstances since
the Tribunal's decision that he could reasonably
form the view that the detention criteria were
now satisfied“ - see R(M) v Secretary of State
for the Home Department [2008] EWHC
3638 (Admin)
The convention rights

Article 5(2), which applies to all the reasons for
detention provided for in article 5(1), provides
that "everyone who is arrested shall be informed
promptly, in a language which he understands, of the
reasons for his arrest and any charge against him".
The issues




Was SS under a duty to provide written reasons
for recall?
LH asserted that the giving of written reasons
for recall is a condition precedent to the lawful
recall of the person being detained
LH also said that as recall was unlawful, his
subsequent detention was also unlawful.
CFI disagreed with LH
Court of First Instance

The decision to recall the Claimant was lawful
because there had been a deterioration in his
mental health since the hearing before the
Tribunal. I find that there is a duty to give the
patient who is being recalled oral reasons for
that decision. I am satisfied that the Claimant
was told of the reasons for his recall. I therefore
dismiss the claim for damages for false
imprisonment and breaches of article 5 of the
ECHR, and I dismiss the claim for a declaration
Why? (per Dingemans J)


“First the critical matter is for the recalled
person to know why he is being detained and
oral reasons, which must be provided, will
provide that information.”
“Secondly there are many practical reasons why
the provision of written reasons before recall
will be difficult, for example in emergencies, or
where the location of the person liable to be
detained is not known”
Why? (per Dingemans J)

“Thirdly, types of mental disorder can vary very
significantly. The provision of written reasons to
a patient will not always be the most effective
way of communicating the reasons for recall.
The current practice of requiring the RC to
explain to the patient the reasons for recall
means that the RC can explain the reasons in a
manner that is most likely to be fully understood
by the patient”
Why? (per Dingemans J)

“Finally the fact that written reasons are not
required to be provided before the lawful arrest
of a person by the police, strongly suggests that
written reasons are not likely to be required
before the lawful detention of a person who is
liable to recall under the Mental Health Act. I
can see nothing in R(O) v West London
Mental Health Trust or Article 5(2) of the
ECHR which requires a different conclusion”
R (Lee-Hirons) v SSJ (2014) EWCA
Civ 553


Unsuccessful appeal
Where the Secretary of State recalled a person to be
detained in hospital under section 42(3) of the Mental
Health Act 1983, the Secretary of State was not under a
duty at common law nor under article 5.1 of the
Convention for the Protection of Human Rights and
Fundamental Freedoms to give his reasons for the
person’s detention immediately when he was detained
and thus such reasons were not required to be given in
writing upon detention. However, article 5.2 required
those reasons to be adequately and promptly given to
him following his detention.
per Sir Stanley Burton…




Article 5.1 of the Convention for the Protection of Human Rights
and Fundamental Freedoms required that a person should be
promptly and adequately informed of the facts and legal authority
relied upon to deprive him of his liberty but did not require that
information to be given to the person immediately when he was
detained.
That duty was intended to be satisfied by providing an explanation
for the recall within 72 hours, as stipulated in health service
guidelines HSG (93)(20) issued by the Department of Health in
April 1993 and which supplemented the statutory provisions.
Since article 5.1 did not require the reasons for the detention of the
person to be given to him when he was detained then it did not
require those reasons to be given in writing when he was detained.
Article 5.2 required those reasons to be adequately and promptly
given to him following his detention.
Per Sir Stanley Burton



HSG (93) (20) and local authority circular LAC (93)9
provided an obligation to provide to the person an
explanation for the recall as soon as possible after
readmission to hospital and in any event within 72
hours and a written explanation within 72 hours.
As the Secretary of State had not complied with his
duty to provide adequate reasons within 72 hours and
the reasons for such failure were not good reasons, he
had therefore breached both the policy and article 5.2.
However, those breaches did not render the claimant’s
recall and detention unlawful.
Comment


May be a positive effect through raising
awareness of the existing guidance on loal
authorities and the health service
Practitioners will wish to check this is being
complied with in recall cases.
HK v Llanarth Court
Hospital [2014] UKUT
0410 (AAC)
The background




HK was placed under s.3 on 21 August 2013
and appealed to the FTT(MH) whilst at a
hospital in England
HK was transferred to Llanarth Court in Wales
on 27 September 2013
Mental Health Tribunal for Wales (MHTW)
adjourned hearing listed for 17 January 2014 due
to late service of reports
MHTW sat on 14 March 2014 to hear case
HK’s application to MHTW


Sought statutory recommendation either for
transfer to another hospital or for RC to
consider CTO…
…or in the alternative for MHTW to adjourn
and make directions for further information as
to the statutory recommendations sought.
MHTW’s decision





Did not make a statutory recommendation
Did not adjourn for further information
Did not discharge
Did not provide adequate reasons for the above.
On 11 April 2014, permission granted by
MHTW for HK to appeal to UKUT
The case law (1)

English v Emery Reimbold & Strick Ltd [2002] 1 WLR
2409, CA

‘Justice will not be done if it is not apparent to the parties why
one has won and the other has lost’.

This does not mean that every factor which weighed with the
judge in his appraisal of the evidence has to be identified and
explained. But the issues the resolution of which were vital to the
judge’s conclusion should be stated and the manner in which he
resolved them explained. It does require the judge to identify and
record those matters which were critical to his decision.
The case law (2)

JLG v Managers of Llanarth Court & Secretary of
State for Justice [2011] UKUT 62 (AAC)

“…The essence of the legal requirement for a
tribunal’s decision is that: (i) the tribunal asked itself
the correct legal questions; (ii) it made findings of fact
that were rationally based in the evidence; and (iii) it
answered the legal questions appropriately given its
findings of fact. Additionally, the tribunal must: (iv)
given the parties a fair hearing; and (v) provide
adequate reasons. In simple terms, the issue is whether
the tribunal did its job properly…”
UKUT’s views…

It would be helpful if tribunals set out their reasons by
reference to the relevant criteria for detention

Reasons should address how the tribunal dealt with any
disputes either as to law or evidence… failing to
address explicitly any applications made by a party may
render a set of reasons inadequate. A prudent tribunal
may wish to explain briefly why it has not resolved a
factual dispute
UKUT’s views

The reasons themselves must be clear and
unambiguous

Rehearsing what each witness has said, without
more, is liable to render a set of reasons
erroneous in law – need to explain the facts
found in respect of the evidence and the
conclusions then reached
UKUT’s views

It is not necessary for the reasons to mention all
of the evidence… but it should… identify and
resolve evidence and applications which are in
dispute.
What’s wrong with a set of
inadequate reasons?





Difficult to discern precisely what the tribunal
found
Leaves the patient second-guessing why the
criteria for detention are satisfied
“left in the dark” as to evidential conclusion for
statements made in the reasons.
Poor reasons raise doubt as to whether tribunal
has dealt fairly with the case
Article 5 considerations
R oao LV v (1)SofS for
Justice and (2) Parole
Board [2014] EWHC
1495
S74 MHA





Applies to those subject to transfer and
restriction directions
LV had chaotic background and criminal history
as well as mental illness
Sentenced to indeterminate sentence for public
protection
Then transferred to hospital (St Andrews) after
minimum period expired.
2 regimes running- sentence and MHA
LV’s Tribunal



Nothing more to be achieved at St Andrews
Transfer to prison would be step backwards
Should move to “step down” hospital
placement” to monitor progress in reduced
security and if S of S agrees with
recommendation Tribunal will reconvene and
see if conditions set for discharge were or could
be met
Tribunal to MoJ




Had LV been subject to restriction order would
have been entitled to CD (s74(1)(a)
If not discharged should remain in hospital
(rather than be returned to prison)(s74(1)(b))
MoJ has 90 days in which to decide whether to
discharge under MHA.
But what about the sentence?
Parole Board



Policy in force at time was to refer for expedited
hearing of parole board to consider suitability of
release from hospital
In fact hearing was not expedited due to use of
wrong policy and took place almost 2 years after
Tribunal
Parole Board did not direct release so CD could
not take effect
s.74 MHA


Restricted patients subject to restriction directions
74.—(1) Where an application to [the appropriate tribunal] is
made by a restricted patient who is subject to [a limitation
direction or] a restriction direction, or where the case of such a
patient is referred to [the appropriate tribunal], the tribunal—
 (a) shall notify the Secretary of State whether, in [its] opinion,
the patient would, if subject to a restriction order, be entitled
to be absolutely or conditionally discharged under section 73
above; and
 (b) if [the tribunal notifies] him that the patient would be
entitled to be conditionally discharged, may recommend that
in the event of his not being discharged under this section he
should continue to be detained in hospital.
s.74 (cont.)

(2) If in the case of a patient not falling within
subsection (4) below—
 (a) the tribunal [notifies] the Secretary of State that
the patient would be entitled to be absolutely or
conditionally discharged; and
 (b) within the period of 90 days beginning with the
date of that notification the Secretary of State gives
notice to the tribunal that the patient may be so
discharged, the tribunal shall direct the absolute or,
as the case may be, the conditional discharge of the
patient.
s.74 (cont.)

(3) Where a patient continues to be liable to be detained
in a hospital at the end of the period referred to in
subsection (2)(b) above because the Secretary of State
has not given the notice there mentioned, the managers
of the hospital shall unless [the tribunal has]made a
recommendation under subsection (1)(b) above,
transfer the patient to a prison or other institution in
which he might have been detained if he had not been
removed to hospital, there to be dealt with as if he had
not been so removed.
s.74 (cont.)


4) If, in the case of a patient who is subject to a transfer direction
under section 48 above, the tribunal [notifies] the Secretary of
State that the patient would be entitled to be absolutely or
conditionally discharged, the Secretary of State shall, unless [the
tribunal has] made a recommendation under subsection (1)(b)
above, by warrant direct that the patient be remitted to a prison
or other institution in which he might have been detained if he
had not been removed to hospital, there to be dealt with as if he
had not been so removed.
(5) Where a patient is transferred or remitted under subsection
(3) or (4) above [the relevant hospital direction and the limitation
direction or, as the case may be,] the relevant transfer direction
and the restriction direction shall cease to have effect on his
arrival in the prison or other institution.
s.74 (cont.)

[(5A) Where [the tribunal has] made a recommendation under subsection
(1)(b) above in the case of a patient who is subject to a restriction direction or
a limitation direction (a) the fact that the restriction direction or limitation direction remains in
force does not prevent the making of any application or reference to the
Parole Board by or in respect of him or the exercise by him of any power
to require the Secretary of State to refer his case to the Parole Board, and
 (b) if the Parole Board make a direction or recommendation by virtue of
which the patient would become entitled to be released (whether
unconditionally or on licence) from any prison or other institution in
which he might have been detained if he had not been removed to
hospital, the restriction direction or limitation direction shall cease to
have effect at the time when he would become entitled to be so released.]
The Legal Framework if the MoJ
does not discharge after Tribunal




If LV had been serving a determinate sentence which was not
completed- Tribunal recommendation would mean transfer back
to prison, unless remains in hospital under s74(1)(b). Retains
right to Parole hearing,s74(5A)
If had been serving determinate sentence which was completednotional s37
If serving indeterminate sentence and minimum period not
completed- Tribunal recommendation would mean transfer to
prison or remaining in hospital till the minimum period had
expired. S74(5A) applies
As LV’s minimum term had expired she would be referred to
the Parole Board, given that the MoJ did not give notice that the
discharge could take effect.
LV’s complaints


Breach of A5(4) because of delay in setting the
hearing- court accepted wrong policy had been
followed but LV had moved to step down
hospital and other factors meant that there was
no breach of requirement of speedy hearing
The Parole Board and the Tribunal were
effectively considering the same issues ie risk
arising from LV’s mental disorder
The “conceptual distinction”




Hospital order appropriate where the offending
proceeds from mental disorder
In transfer and restriction patients, “criminal
responsibility subsists”.
The Tribunal considered risks arising from LV’s
mental disorder; the Parole Board considers
wider issues including her criminal history
No breach of Article 5
Comment


Useful mainly as a clear exposition of how this
process works
Is the “conceptual distinction” that clearcut?
TW v Enfield Borough Council
[2014] EWCA Civ 362
Background



TW was admitted to hospital under s3 in 2007
(before MHA was amended by 2007 Act)
NR was not consulted on basis not reasonably
practical: TW did not wish family to be
consulted and there was evidence that this
would cause her distress.
S.139 required permission of the Court- refused
by Bean J as claim bound to fail. It was not
reasonably practical to consult NR because this
would violate TW’s Article 8 rights
ASW’s conclusion



ASW had consulted NR earlier who advised
against attempting assessment. TW was
distressed, made a complaint about breach of
confidentiality and relationship with clinical
team was affected.
TW accused family of assaults including sexual
abuse
ASW concluded not reasonably practical to
consult NR
Judgment of Bean J: [2013]
EWHC 1190 QBD




Followed R(E) v Bristol City Council [2005] 1 MHLR
83
Consultation must be real exercise
Stressed the importance of patient’s Article 8 rights;
subsequently reflected in Code of Practice: 4.60- 4.62
ASW entitled to consider it was NOT reasonably
practicable to consult NR where patient does not want
contact to be made and distress may affect health.
The judgment of the Court of
Appeal



Definition of “Practicable” must have sufficient
elasticity to take account of different including
urgent circumstances
Article 8 is qualified- interferences must be “in
accordance with the law” and in pursuit of
legitimate public end.
Obligation to consult may cause conflict
between rights under Article 8 and Article 5.
The judgment of the Court of
Appeal



Consultation with NR is vital safeguard
The fact that there is an infringement of Article
8 rights does NOT automatically mean that
there should be no consultation.
ASW must “strike a balance between the
patient’s Article 5 right not to be detained unless
that is done by a procedure that is in accordance
with the law and the patient’s Article 8 right..”
Comment



This important case imposes a significant
responsibility on an AMHP to weigh up
patient’s Article 5 rights against the right to
privacy.
The Court also commented that the Code of
Practice does not reflect the law.
The draft Code did not amend this but it is
hoped the final version will!
K (by his litigation friend)
v
The Hospital Managers of the Kingswood
Centre (1)
&
Central and North West London NHS
Foundation Trust (2)
[2014] EWCA Civ 1322
Background




K sought an order of habeas corpus.
K’s mother, his nearest relative, had given notice
by fax of her intention to discharge K. The
Fax was addressed to the Mental Health Act
Administrator marked “Private and Confidential
To be opened by addressee only”.
The administrator worked part-time and the
notice did not come to her attention until after
the 72 hours had expired.
Mental Health (Hospital Guardianship and
Treatment Regulations 2008)



Contain provisions for service under which the nearest
relative’s discharge order can served by delivery to the
authorised officer, pre-paid post or- with the agreement
of the managers- internal mail.
Notices sent by first class post deemed to have been
served on the second business day following the day of
posting; and on the fourth business day following the
day of posting where second class post is used.
No provision for service by (eg) fax or email.
The Challenge

R(Modaresi) v Sof S for Health [2013] UKSC
53: “It is the hospital which deprives the patient of her
liberty. It is incumbent upon the hospital to do this in
accordance both with the domestic law and with the
patient's Convention rights. A failure which deprives
the patient of the right of access to a tribunal which the
law provides may well (I put it no higher) be a breach
of the patient's Convention rights. The only safe course
is to have a system which ensures that this does not
happen.”
The Court of Appeal




The NR discharge power is a safeguard against arbitrary
detention, but the barring process is also a safeguard
The hospital was responsible for putting into place
systems to deal with documents that are served using
the methods set out in the regulations
Where service is attempted using a method not
specified in the regulations the risk is taken by the
sender.
Time started to run from when the Administrator
actually received the notice.
NL
v
Hampshire County Council
[2014] UKUT 475
The statutory background

Powers of guardian under s8(1)

a) the power to require the patient to reside at a place specified


by the authority or person named as guardian;
(b) the power to require the patient to attend at places and times
so specified for the purpose of medical treatment, occupation,
education or training;
(c) the power to require access to the patient to be given, at any
place where the patient is residing, to any registered medical
practitioner, [approved mental health professional][1] or other
person so specified.
The statutory background




S72(4) places burden on patient:
(4) Where application is made to [the appropriate
tribunal] by or in respect of a patient who is subject to
guardianship under this Act, the tribunal may in any
case direct that the patient be discharged, and shall so
direct if [it is][ satisfied—
(a) that he is not then suffering from [mental
disorder];[or
(b) that it is not necessary in the interests of the welfare
of the patient, or for the protection of other persons,
that the patient should remain under such guardianship.
The Code of Practice
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26.2 The purpose of guardianship is to enable patients
to receive care outside hospital when it cannot be
provided without the use of compulsory powers. Such
care may or may not include specialist medical
treatment for mental disorder.
26.19 An application for guardianship should be
accompanied by a comprehensive care plan established
on the basis of multi-disciplinary discussions in
accordance with the Care Programme Approach (or its
equivalent).
The Code of Practice
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26.26 Guardians have the power to decide where
patients should live. …
26.30 The power to require patients to reside in a
particular place may not be used to require them to live
in a situation in which they are deprived of liberty,
unless that is authorised separately under the MCA.
That authorisation will only be possible if the patient
lacks capacity to decide where to live. If deprivation of
liberty is authorised under the MCA, the LSSA should
consider whether guardianship remains necessary,
bearing in mind the guidance earlier in this chapter.
L’s case at FTT
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L had mild- moderate learning disabilities and
was subject to guardianship.
L appealed to FTT who refused to discharge.
Parties agreed that L was deprived of his liberty
and that the statutory criteria were met.
L sought discretionary discharge.
FTT refused relying on GA v Betsi Cadwaladr
UHB [2013] UKUT (AAC) 0280
GA
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A decision that the statutory criteria are met
involves a finding that treatment is “necessary”.
Any discretionary discharge must be consistent
with this finding.
So there will only be exceptional cases where the
statutory criteria are satisfied, but where there
are sufficient safeguards to make a discretionary
discharge logical and consistent with the
reasoning.
L’s appeal to the UTT
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L argued that
Guardianship does not authorise a deprivation
of liberty
The burden should not be upon the patient
The Tribunal had misinterpreted GA
The local authority argued that guardianship was
only relevant to whether L was free to leave: the
other elements of control were part of his care
plan
The UTT’s decision
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The statutory powers given by guardianship are
limited and it is “difficult to imagine” how they
could be used in a way that deprives a patient of
his/her liberty
It exists to provide framework for delivery of
the care plan. The potential for DoL lay in the
care plan.
In this case the guardianship order did not give
rise to a DoL
The UTT’s decision
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The reasoning in GA applies to guardianship
and detention as well as CTOs: hard to imagine
where there could be a discretionary discharge
without appropriate safeguards
The wording of s72(4) places the legal burden
on the patient because guardianship “is not
designed to involve a deprivation of liberty”
Tribunals don’t have to proceed on the basis of
agreed concessions.
Comment
The GA point- Arguments that might have
put for discretionary discharge might be
better framed as challenges to the criteria
of “necessity” (or justification for s2 cases)
 Endorses the approach that guardianship
should not authorise deprivation of liberty
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But…..
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In this case it is understood that the restrictions etc in
the care plan were not being enforced.
Remember limits on powers of those providing care:
“The essential point for present purposes is that none
of these sources of local authority engagement with
someone like C confers on the local authority any
power to regulate, control, compel, restrain, confine or
coerce. They are concerned with the provision of
services and support.” Per Lord Justice Munby, Re A
and C [2010] EWHC 978 (Fam)
So…
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Guardianship can be used for its statutory purposes. It
gets the patient in the right place for the guardian to
offer the services.
If the care plan itself amounts to complete and effective
control, the logic of this reasoning is it cannot be
enforced using guardianship powers.
But what about the compliant incapacitated patient- will
guardianship now be used instead of applications to
COP?
C v Blackburn with Derwent BC [2011] EWHC 3321
Future Developments
Re X procedure
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Re X (Deprivation of Liberty) [2014] EWCOP
25 and EWCOP 37. ) set out “streamlined
procedure” in applications under s16 MCA;
Guidance on the information the court will need
and “triggers” to join P and/or hold an oral
hearing.
Second judgment raises possibility of P being
represented without a litigation friend (as under
TPR 11(7))
Re X procedure
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COP implementing over 2 “phases”
Phase 1- new Practice Direction 10AA
(currently deals only with s21A MCA appeals);
new forms for applications, out in next few
weeks
New judges recruited from Social Entitlement
Chamber (not HESC)
Even though many cases will be uncontested
will this lead to some contested hearings?
Re X litigation
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Applications for permission to appeal against
judgments of Sir James Munby P in Re X.
Points taken: whether P should always be a party
where an application is made to deprive him/her
of liberty and whether the default position
should be an oral hearing.
TLS and some individuals applied for
permission; others may join.
The Care Act 2014
Over-arching test of well-being, broadly defined and
includes personal dignity, the person’s control over
their life and contribution to society
 A national eligibility standard (not set locally as now)
 A real change to the position of carers:

Defined as “an adult who provides or intends to provide
care for another adult” (s10(3))
 Has the same right as a service user to assessment,
services if they meet eligibility criteria.

The Care Act 2014 and s117
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A defiinition of after-care:
“After- care services means services which have
both of the following purposes
a. meeting a need arising from or related to the
person’s mental disorder ( and they make it clear
that this means one or more disorders and not
necessarily the md for which the person was
detained)”, and
The Care Act 2014 and s117
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b.reducing the risk of a deterioration of the person’s
mental condition ( and accordingly , to reduce the risk
of the person requiring admission to a hospital again
for treatment for mental disorder”
NOTE Draft Code:
33.4: CCGs and local authorities should interpret the
definition…broadly..aftercare can encompass
healthcare, social care and employment services,
supported accommodation and services to meet the
person’s wider social, cultural and spiritual needs.
The Care Act and s117
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The relevant local authority will be the local
authority for the area in England or Wales where
the patient was “ordinarily resident” before he
was detained: s117(3).
Disputes can be resolved by the Secretary of
State rather than requiring JRs
“Stronger Code: Better Care”
Consultation on re-written Code
New Guiding Principles:
empowerment and participation – ensuring that patients,
their families and carers are fully involved in decisions
about care, support and treatment
least restrictive option and maximising independence –
all care, support and treatment should wherever possible
be as least restrictive as possible, ensuring the autonomy
of the patient
“Stronger Code, Better Care”
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respect and dignity – ensuring that patients, their families and
carers are listened to by professionals and included in decisions
about care and treatment
purpose and effectiveness – decisions about care and treatment
must be appropriate to the patient, must be performed to
national guidelines and standards and must be expected to work,
and
efficiency and equity – the quality of commissioning and
provision of care services should ensure that all professionals
involved in a patient’s care are involved and that physical, mental
health and social care needs are equally considered.
“Stronger Code, Better Care”
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New Chapter 34 on care planning:
The CPA should be used for individuals who are
at high risk of suffering a deterioration in their
mental condition and who need:
multi-agency support
active engagement
intense intervention, and/or
support with dual diagnoses.
Questions?
Tam Gill & Sophy Miles
November 2014
© MHLA / Gledhill Solicitors / Miles & Partners