Blog by Helen Curtis of the Garden Court Chambers Mental Health Law Team.
MC v Cygnet Behavioural Health Ltd and The Secretary of State for Justice  UKUT 230 (AAC)
What happens when a restricted patient subject to ss.37 and 41 of the Mental Health Act 1983 (‘MHA’) who lacks mental capacity to make the time and issue specific decision where to live applies to the First-tier Tribunal (FtT) to be conditionally discharged with a condition which amounts to a deprivation of liberty? Upper Tribunal Judge (UTJ) Edward Jacobs confirmed the answer in MC v Cygnet Behavioural Health Ltd and The Secretary of State for Justice  UKUT 230 (AAC) which is that the patient who lacks capacity can be conditionally discharged by the FtT on conditions which mirror those conditions attached to a standard authorisation granted or to be granted under the Mental Capacity Act 2005 (‘MCA’).
In 1993 MC, then aged 40, was made subject to hospital and restriction orders under ss37 and 41 of the MHA following a conviction for arson. MC’s mental disorder is paranoid schizophrenia for which she still requires medical treatment but no longer needs to be in hospital for this. In order for the treatment to be delivered effectively though, MC has to be deprived of her liberty.
From June 2019 MC had been living at a nursing home on extended leave under s.17(3) MHA. On 1 August 2019 she applied to the FtT for a conditional discharge with the unanimous support of her clinical team. Procedurally, the case before the FtT was adjourned on 30 October 2019 in order for a standard authorisation under the MCA to be obtained. At the resumed hearing on 25 November 2019 the local authority had completed the standard authorisation assessments and MC’s solicitor invited the FtT to defer the conditional discharge so that the standard authorisation could be put in place. The three proposed conditions of discharge were for MC (i) to reside at the nursing home (ii) comply with medication and make herself available for assessment and (iii) make herself available for appointments. The tribunal regretted that it felt legally constrained by a combination of part of the decision in Secretary of State for Justice v KC and C Partnership NHS Foundation Trust  UKUT 376 (AAC) and the subsequent decision in the Supreme Court of Secretary of State for Justice v MM  UKSC 60,  AC 712 (also known as M v Secretary of State for Justice) not to conditionally discharge MC to conditions which amounted to a deprivation of liberty and refused to conditionally discharge her.
UTJ Jacobs found the FtT’s decision involved an error of law, set it aside and on 16 July 2020 re-made the decision. The result was that on 10 August 2020 MC was to be conditionally discharged at 2pm with three conditions namely (i) to reside at supported accommodation or a nursing home as agreed by her RC (ii) to accept psychiatric and social supervision from her community RC and Social Supervisor and (iii) to comply with all aspects of the care package devised for her. There was permission for MC, her RC and the Secretary of State to apply to the FtT for a variation of the three conditions if there was a material change in circumstances.
The FtT in MC’s case had been aware that MCA decision makers can deprive conditionally discharged patients of their liberty (confirmed in Birmingham City Council v SR  EWCOP 28, where both patients lacked capacity). However, the FtT’s refusal to conditionally discharge MC was based on part of Mr Justice Charles’ judgment in KC which stated that the statutory duty ‘of the FtT to impose conditions for a patient’s health and safety and/or for the protection of others could not be delegated to a MCA decision maker’.
UTJ Jacobs analysed the authorities which have highlighted the difficulty arising at the point of transition for a patient moving from the MHA framework to the MCA. He noted the Supreme Court’s decision in MM which decided that the MHA did not permit the FtT to conditionally discharge a restricted patient with a condition which amounted to a deprivation of liberty, even if the patient consented. This was not an obstacle to MC though. UTJ Jacobs observed in his para 31 that, the Supreme Court ‘did not deal with the powers of the Court of Protection under the MCA to deprive an individual who had been (or was contemplated to be) conditionally discharged under the MHA’. He quoted para 27 of the Supreme Court’s decision of MM,
‘Whether the Court of Protection could authorise a future deprivation, once the FtT has granted a conditional discharge, and whether the FtT could defer its decision for this purpose, are not issues which it would be appropriate for this court to decide at this stage in these proceedings’.
UTJ Jacobs went on to find that there was nothing in the decision of MM to undermine Charles J’s reasoning in KC and found at para 25 that Charles J was ‘concerned with achieving a coherent interpretation of the 1983 and 2005 legislation in a way that was appropriate across the range of circumstances in which it might apply and did not leave gaps’.
In order to achieve this coherence efficiently, UTJ Jacobs made two suggestions, one being the same judge wearing different hats i.e. being a tribunal judge and also a judge of the Court of Protection Judge and the second, the ‘ducks in a row approach’. Using the latter route, UTJ Jacobs stated ‘it would be a proper use of the tribunal’s powers to adjourn, to make a provisional decision or to defer discharge in order to allow the necessary authorisation to be arranged’ (para 32).
Recalling his decision in DN v Northumberland, Tyne & Wear NHS Foundation Trust  UKUT 327 (AAC), UTJ Jacobs affirmed the need for the principle of least restriction to be satisfied. He went on to state at para 28, ‘If a patient’s case is to be dealt with correctly under the 1983 Act and fairly and justly under the tribunal’s rules of procedure, the tribunal is under a duty to find a way that allows both Acts to be applied in a co-ordinated manner’.
This judgment confirms that the FtT does have power in the case of patients who lack capacity to co-ordinate its decision with the provision of a standard authorisation under the MCA. It was not required to deal with the issue of funding; given free s.117 MHA after-care and the cost of social care, the question of funding may feature in the transition planning for patients who move between the MHA to the MCA.
Decisions made pursuant to s.4 of the MCA are in a person’s best interests and are not part of the FtT’s consideration. The Guidance from the Mental Health Casework Section, ‘Discharge conditions that amount to deprivation of liberty’ distinguishes between the authorisation of a deprivation of liberty which is purely in a person’s best interests and that which has the additional element of managing risk to the public. This issue was considered in more detail in the case of Birmingham City Council v SR above.
It will be interesting to see how the new mechanism of the Liberty Protection Safeguards (consultation on the new Code is due in Spring 2021) deals with the MHA/MCA interface. It is discussed in both the Law Commission’s 2017 report ‘Mental Capacity and Deprivation of Liberty’ and the Independent Review of the Mental Health Act 1983 produced a year later in December 2018. In the meantime, this decision enables the FtT to develop a more consistent and coordinated approach where patients who lack capacity seek to be conditionally discharged to conditions which amount to a deprivation of liberty.