BRIEFING NOTE. Both these cases involved appeals from judgments of Charles J in the Upper Tribunal, where the Court of Appeal considered:

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1 Skiptn Huse Learning Disability Prgramme 6 th Flr 80 Lndn Rad Lndn SE1 6LH Publicatins Gateway Reference BRIEFING NOTE Abut this briefing nte At the end f March 2017, the Curt f Appeal handed dwn its judgment in the tw jined cases f PJ (A Patient) v A Lcal Health Bard and Secretary f State fr Justice v MM. Cncern has been raised natinally abut the impact f this judgment n the Transfrming Care agenda, in particular n the ability t discharge sme patients frm hspital int the cmmunity. The Transfrming Care prgramme reflects gvernment plicy that is cmmitted t peple with learning disabilities, autism r bth, wh have a mental illness r whse behaviur challenges services, with a particular fcus n reducing the need fr lng term detentin in hspital and meeting needs wherever pssible in the cmmunity. This can be a particular challenge in cases where peple wh present high-risk behaviurs are detained in hspital, have cme int the system via the criminal curts and are subject t restrictins under sectin 41 f the Mental Health Act Purpse This briefing nte is aimed at prviding practitiners within Transfrming Care Partnerships (TCPs) with a summary f the recent curt f appeal judgement, and t utline sme f the pssible implicatins fr the prgramme. It als prvides a framewrk fr regins arund enhancing understanding f thse individuals n whm this will have an impact and sme suggestins fr the handling f future cases. Backgrund Bth these cases invlved appeals frm judgments f Charles J in the Upper Tribunal, where the Curt f Appeal cnsidered: In MM - The nature and extent f the pwers f the First Tier Tribunal where psychiatric patients apply t be cnditinally discharged int circumstances that deprive them f their liberty in the cmmunity, AND: In PJ - The situatin where the cnditins f a Cmmunity Treatment Order (CTO) may amunt t a deprivatin f liberty and the case is being cnsidered by the Tribunal.

2 The judgment des nt change anything fr peple wh lack the capacity t cnsent t the cmmunity accmmdatin care and supprt arrangements. The Curt f Appeal in this judgment recgnised that the Mental Capacity Act r Deprivatin f Liberty Safeguards (DLS) can still be used t authrise a deprivatin f liberty f a restricted patient wh lacks capacity. Hwever the tribunal must be assured that the Curt f Prtectin r Supervisry Bdy have given the relevant authrisatin BEFORE they direct a cnditinal discharge (usually wanting t see the actual authrisatin). In these cases the First Tier Tribunal can defer cnditinal discharge until a DLS authrisatin/rder frm the Curt f Prtectin has been sught. MM and PJ each had learning disabilities and autistic spectrum disrder, but had capacity t make decisins abut the restrictin f their liberty. The appeals were heard tgether by the Curt f Appeal and were bth allwed, in each case supprting the decisin f the First Tier Tribunal, and verturning the decisin f Charles J in the Upper Tribunal. Deprivatin f Liberty In each case, we are dealing with the questin f bjective deprivatin f liberty (DL) - ( bjective here just distinguishes it frm the tw ther elements f the definitin f DL i.e. the lack f valid cnsent, and imputability t the state). This is defined in the leading case, the Supreme Curt judgment in Cheshire West, (19 March 2014), in which Lady Hale set ut the acid test that an bjective DL is where the persn is under cntinuus [elsewhere she says cnstant ] supervisin and cntrl and nt free t leave. It is imprtant t remember that:- The purpse f the restrictins, the nature r extent f the patient s disability r care needs, their cntentment r acquiescence, and the quality f the care being prvided ARE NOT relevant t the questin f whether there is an bjective DL. As Lady Hale put it, a gilded cage is still a cage, and the existence f a DL simply needs t trigger independent scrutiny and prcedural safeguards t meet a patient s rights under Article 5 f the Eurpean Cnventin f Human Rights (ECHR). T avid denying thse safeguards t a very vulnerable grup f peple, her expectatin was that we shuld err n the side f cautin. Cntinuus r cnstant supervisin des nt require a patient t be in sight 24 hurs a day, r t have staff with them at all times. It may be enugh, fr example, that the care plan may require the patient t adhere t a particular rute r timescale when ut f sight, and that there may be cnsequences fr failure t d s. Even if well intentined and apprpriate restrictins are instinctively cnsidered t be supprt, fr example, rather than cntrl, this characterisatin shuld nt negate the reality that cntrl is r culd be exercised ver sme r all aspects f the patient s life. The restrictins must be taken as a whle, cllectively and cumulatively, and cnsidered in terms f their verall impact n the patient, s it can be dangerusly reductive t cnsider any particular individual factr in islatin as necessarily indicative f a DL. Free t leave, in this cntext, des nt mean just cming and ging frm a particular placement, but whether a patient wuld be permitted t freely decide where they will live.. It is recgnised that the definitin f DL, fllwing Cheshire West, is significantly wider than had been previusly appreciated.

3 PJ - CTOs and Deprivatin f Liberty Summary f judgment (See Appendix 1 fr a mre detailed verview f PJ) The Respnsible Clinician (RC) can authrise cnditins under a Cmmunity Treatment Order (CTO) that can restrict the freedm f mvement f a patient t the extent f bjectively depriving him f his r her liberty. Althugh CTO cnditins may amunt t a DL, a CTO is nevertheless intended t be a lesser restrictin n freedm f mvement than detentin in hspital fr medical treatment. But it is nt apprpriate fr the Mental Health Tribunal t investigate r determine whether there is an bjective DL as a cnsequence f a CTO. The pwer f the Tribunal is simply t discharge if the statutry criteria fr detentin are nt met. Implicatins fr the Transfrming Care prgramme: Respnsible Clinicians have an implied pwer t deprive a persn f their liberty by way f the cnditins f the persn s CTO, althugh in general terms this shuld represent a less restrictive ptin than the package being prvided in hspital under sectin 3 r 37. Fr thse patients subject t sectin 3 r 37 f the MHA, the judgment arguably makes it easier t discharge them int the cmmunity, as it is nw cnfirmed that the cnditins attaching t the CTO may amunt t a DL. Therefre if the cmmunity package requires a DL in rder t manage the risk, the judgment implies that this can be achieved via the cnditins attached t a CTO. Hwever, it shuld be nted that this may require revisin f the Mental Capacity Act cde f practice which sets ut at chapter that a DL must nt arise frm CTO cnditins. The judgment des nthing t recncile that apparent cntradictin, and this aspect, at least, is likely t be challenged in the curts in due curse, if nt in an appeal against that judgment itself. MM Cnditinal Discharge and Deprivatin f Liberty Which patients des the MM Curt f Appeal judgment affect? Any patient wh is: detained under the Mental Health Act 1983 and is subject t a restrictin rder under either s.41 r s.49 and applies t the Mental Health Tribunal and has capacity t cnsent t their care and treatment arrangements is ptentially affected by this judgment. Mst cmmnly this will apply t patients detained under s.37/41 r s.47/49 f the MHA, but culd als ptentially affect patients subject t s.48/49 and thse patients subject t s.45a wh are als subject t a restrictin rder, where they are eligible fr a Tribunal applicatin.

4 Summary f judgment (See Appendix 2 fr a mre detailed verview f MM) Neither the MHA nr the Mental Health Tribunal can authrise a restricted patient s package f care utside a hspital setting, even where the persn has capacity t cnsent t thse arrangements, where thse cnditins amunt t a deprivatin f liberty. There is n existing statutry authrity fr this within the Mental Health Act. Where the restrictins amunting t a DL are impsed cmpulsrily by law, the patient s cnsent des nt stp it being an bjective DL which therefre still needs lawful authrisatin t avid breach f ECHR Article 5. The Curt f Prtectin and DLS cannt be used t d s where the patient has capacity t make the relevant decisins, and s is utside their jurisdictin. This case makes clear that the MHA cannt be used t d s n a cnditinal discharge either, arguably leaving n lawful way in which a patient with capacity can be discharged int the cmmunity where there needs t be pst discharge restrictins that amunt t a DL, applying the lw threshld f the Cheshire West test. Implicatins fr the Transfrming Care prgramme This judgment is likely t raise a significant barrier t the discharge f patients subject t criminal sectins where there is the additinal Ministry f Justice restrictin (such as a sectin 37/41 r 47/49) int the cmmunity, where the care and supprt arrangements prpsed t manage any risk in the cmmunity amunt t an bjective deprivatin f liberty and the patient has capacity. (This clearly applies nt nly t peple with a learning disability and/r autism.) There are sme clear steps / questin that the MDT need t ask themselves and cnsider and t help we have included a flw diagram at appendix 3 In such cases there are three ptins nce the patient n lnger requires secure hspital care 1) the patient remains n sectin in a hspital, 2) discharge with cnditins that d nt amunt t a DL if the Tribunal/care team be persuaded that these are sufficient t manage the risk. Fr sme high risk patients such as thse wh are a risk t children and require cnstant supervisin, this may be very difficult t achieve. 3) the clinical team feel there is sufficient evidence t apply fr an abslute discharge (remval f the restrictin sectin and Ministry f Justice versight). Fr the Transfrming Care prgramme this is ptentially significant currently almst a quarter f all inpatients are subject t Ministry f Justice restrictins. Hwever, nt all f these peple will be seeking cnditinal discharge, we d nt knw hw many have capacity, and it will be dependent n whether the arrangements in the cmmunity in each case amunt t a deprivatin f liberty. There is a majr ethical cnsideratin at play fr practitiners supprting peple wh fall within the remit f this judgment in supprting peple t prgress thrugh an inpatient pathway t discharge leading them t believe this is a real pssibility if they fall int the same situatin as described in MM they cannt be discharged s shuld practitiners actually plan fr this with the persn if it can never be a reality r shuld they be pen and hnest and start wrking twards transfer ut f security. The impact f this judgement is specific t thse wh HAVE capacity fr the cmmunity accmmdatin care and supprt decisin because the MCA framewrk des nt apply in these cases and there is n ther prcess in law t authrise the DL. The earlier it is knwn that the persn has capacity, the easier it will be t plan the mst apprpriate pathway. There is the argument that t present the pssibility f discharge frm hspital t smene nly t then advise that it wuld be unlawful

5 amunts t emtinal abuse, and managing a patient s expectatins apprpriately is essential. There are therefre respnsibilities fr RCs and MDTs in: ensuring the rbustness f capacity assessments in relatin t prpsed accmmdatin, care and supprt. Ensure yu all agree n the salient pints and the methdlgy f cmmunicatin and infrmatin giving befre anyne embarks n a capacity assessment rather than trying t deal with differences f view n the utcme. the clarity and rbustness f purpse f any cntrl and supervisin. Ensure yu are all agreed n the risks and the apprpriate steps t mitigate / manage these, have the restrictins been reduced as far as pssible? Is further psitive risk testing required? Then cnsider the varius legal structures that might be able t authrise the restrictins (e.g. MJ/tribunal cnditins; ffender licence; tenancy agreement etc) Als be clear abut what the cmmissiner and MDT will expect in terms f actin by the prvider if the persn desn t cmply with the restrictins and care plan; all f this will enable yu all t understand what the supervisin and cntrl elements are and whether they are cntinuus (NB as abve, the purpse f the restrictins is irrelevant t whether r nt they amunt t a DL). These will be subject t scrutiny nt just by the MCA authrisatin prcess, but als by the MJ/Tribunal. Be prepared t submit the evidence with a statutry reprt r t receive directins fr the release f the infrmatin. Nte that, perhaps perversely, this situatin (whereby the Curt f Prtectin culd authrise a pst discharge DL and therefre facilitate discharge fr a patient wh lacks capacity, while a patient with capacity may have n such rute available where the pst discharge package amunts t a DL) creates an incentive fr patients and their representatives t argue that they lack capacity, and/r that the restrictins pst discharge d nt amunt t a DL. The assessment f capacity may therefre pse greater challenges. Patients wh lack capacity fr decisins abut care and residence As stated earlier, the judgment des nt change anything fr thse lacking capacity fr the accmmdatin care and supprt decisin, hwever given the tribunal/mj need assurance f the authrisatin befre they can cnditinally discharge this means that it is necessary fr thse parties applying t the curt t have prepared their applicatin well in advance f the persn ging befre tribunal r an RC applying directly t MJ fr a cnditinal discharge and yu are advised t ensure yu have requested the rder be shared with the tribunal and Ministry f Justice. In relatin t best interests decisins t justify restrictins fr the purpses f Curt f Prtectin / DLS fr patients wh lack capacity, there is arguably a fine line between an individual s best interests fr his/her wn safety and in relatin t the prtectin f thers, althugh, it culd be argued that the latter als prtects the individual (e.g. by preventing re-ffending behaviur). There has been experience t date where the supprt plan being submitted t the Curt f Prtectin includes all the restrictins that als prvide prtectin f the public thrugh the preventin f ffending behaviur. The advice is t include all restrictins that the persn lacks capacity fr within the Curt f Prtectin applicatin highlighting t the curt which restrictins the persn has capacity t cnsent t and which they d nt. It a matter

6 then fr the Curt t decide which f the care plan they will authrise which will infrm the request fr the Tribunal in relatin t cnditins. What can usefully be dne at present in cases cvered by this judgment? Appendix 3 prvides a simple flw diagram fr cnsidering the impact f the MM judgement n individual cases; it sets ut the questins that MDTs need t ask themselves and leads thrugh t whether discharge will be pssible r nt in rder t prevent prfessinals misleading patients. Tgether with the experience and findings f sme Care and Treatment Reviews this judgment underlines the need fr ptimal clarity and dcumented evidence f: Diagnsis, frmulatin and related treatment plans Fcussed and cnsistent treatment with evaluatin f treatment utcmes Cntemprary and detailed assessments f risk and risk management plans Prpsed discharge plans and related assessments f capacity Capacity assessments shuld be carried ut earlier in pathways f care. If individuals have capacity t cnsent t abstract prpsitins fr their future residence and care (ptential plans and details rather than actual) then they wuld be in the same psitin as MM and the fcus f the clinical wrk wuld need t be n whether and hw restrictins might be reduced t a situatin where future supprt des nt amunt t an bjective deprivatin f liberty. Fr thse wh d nt have the capacity t cnsent t abstract plans then further mre detailed wrk n plans fr discharge needs t be carried ut and the individual s capacity then reassessed at varius pints in the pathway and with regard t cncrete prpsals. Regins shuld ensure that the ppulatin likely t be affected by the judgment is mre clearly knwn. Cmmissiners shuld be establishing directly with prviders and RCs wh falls within the ppulatin ptentially affected and what actins are practively being taken t determine if they are directly affected, whether assessments f capacity have been carried ut and whether the prpsed discharge plans amunt t bjective deprivatins f liberty. RCs, cmmissiners and legal representatives shuld be wrking t establish what is in the best interests f individuals wh lack capacity and what cases may be able t be supprted if there is mre clarity abut the nature and degree f supervisin in the cmmunity. Natinal activity and ptential slutins We are engaging with system partners, including the Department f Health and the Ministry f Justice abut the judgment, and have raised ur cncerns abut the likely impact n the Transfrming Care prgramme; We are wrking with the Regins t clarify the scpe and numbers f peple affected tgether with a sharing f experience and learning in wrking within these restrictins;

7 We appreciate that the implicatins f this judgment, and MM in particular, may be significant and, in many cases, unhelpful. There are a number f ptential slutins:- An appeal against the judgment t the Supreme Curt we understand that this is currently under active cnsideratin by sme f the parties, and we will f curse mnitr this. A separate test case n the interpretatin f DL in the cmmunity n discharge in this cntext. In PJ and MM each case tk as read that the restrictins wuld amunt t a DL, and applied the Cheshire West test. But the facts f Cheshire West were very different, and the Curts have shwn sme readiness in ther cases t distance themselves frm the Cheshire West judgment where the cntext justifies this and / r the effect f mechanistically applying it wuld be perverse (as fr example in the Curt f Appeal judgment in Ferreira, January 2017, hlding that Cheshire West shuld nt be held t apply in life saving medical treatment in the cntext f a case abut treatment in Intensive Care recently endrsed in anther Curt f Appeal - Briggs, July 2017). Legislatin Revisin f the Cde f Practice (thugh this wuld have limited value in terms f allwing departure frm the implicatins f a Curt f Appeal judgment). Dr Rger Banks: Natinal Senir Psychiatry Lead, NHS England Jhn Trevains: Head f Mental Health and Learning Disability Nursing, NHS England Date: Nvember 2017 With the assistance f: Jane Alltimes, Gillian Andersn, Rebecca Fitzpatrick, Christine Hutchinsn, Camilla Parker, Ben Trke,

8 Appendix 1 further infrmatin PJ PJ had been detained in hspital and discharged under a Cmmunity Treatment Order (CTO) with cnditins that amunted t a DL. PJ applied t the tribunal which refused his applicatin fr discharge. The Upper Tribunal verturned that decisin, declaring that the Tribunal shuld have used its pwer f discharge t stp the nging breach f the patient s ECHR article 5 rights (the right t liberty). Reversing the Upper Tribunal, the Curt f Appeal held: The Respnsible Clinician s (RC) pwer t restrict the freedm f mvement f a patient t the extent f bjectively depriving him f his liberty by the cnditins attached t a CTO is permitted as part f the MHA statutry framewrk. The criteria fr the impsitin by the RC f cnditins that may deprive a patient f his liberty under a CTO are specified in sectins 17A(4) t (5) and 17B(2) MHA. They are limited t the purpses f the legislatin and they are als time limited. Althugh CTO cnditins may in principle amunt t a deprivatin f liberty, a CTO is nevertheless intended t be a lesser restrictin n freedm f mvement than detentin in hspital fr medical treatment. The Tribunal has a distinct and separate pwer: that f discharge if the statutry criteria fr detentin are nt met. The statutry framewrk des nt permit the Tribunal t regulate the cnditins made by the RC and there is n pwer fr a tribunal t cnsider the terms f a CTO r t change thse terms. As such neither is there any pwer t examine the legality f the CTO including the prprtinality f the interference with the patient s Article 5 (right t liberty) r ther ECHR rights. Therefre it is nt apprpriate fr the Tribunal t investigate r determine whether there is an bjective deprivatin f liberty as a cnsequence f a CTO. The remedy fr any illegality, including any Cnventin illegality, is t challenge the CTO by way f an applicatin fr judicial review.

9 Appendix 2 further infrmatin MM MM had been detained in hspital under s.37/41 Mental Health Act (MHA). He applied t the Tribunal seeking cnditinal discharge with a prpsed care package that amunted t a deprivatin f liberty (DL). The Tribunal rejected his argument that as he had capacity t cnsent t this, the Tribunal culd impse a cnditin requiring him t cmply with his care package. The Upper Tribunal disagreed and allwed MM s appeal, deciding that the Tribunal culd impse cnditins that amunted t a deprivatin f liberty and that a patient with capacity culd validly cnsent t such cnditins. Reversing the decisin f the Upper Tribunal, the Curt f Appeal held: When granting a cnditinal discharge t a restricted patient, there is n pwer that can be exercised by the Tribunal t authrise a patient s deprivatin f liberty utside hspital, as there is n existing statutry authrity fr this within the MHA either express r implied. The earlier case f Secretary f State fr Justice v RB [2011] EWCA Civ 1608 was crrect and binding and the Upper Tribunal shuld nt have gne against it. Where cnditins amunting t a DL are cmpulsrily impsed by law, the fact that the individual has cnsented t them des nt prevent a DL ccurring and purprted cnsent cannt give the Tribunal the jurisdictin t impse a cnditin that amunts t an bjective deprivatin f liberty. The Tribunal can impse a cnditinal discharge with cnditins that d nt amunt t an bjective DL r it can grant an abslute discharge it is satisfied that the patient is validly cnsenting t supervisin t prtect them and the public..

10 OFFICIAL Health and high quality care fr all, nw and fr future generatins

11 OFFICIAL Suggested wrding fr cnditins f discharge 1. Reside at [specify address] [24 hur supprted/supprted/residential accmmdatin as directed by the RC and scial supervisr] [and abide by any rules f the accmmdatin], and btain the prir agreement f the respnsible clinician and scial supervisr fr any stay f ne r mre nights at a different address. NB: This shuld als include a clause whereby the Ministry f Justice shuld be infrmed f any change f address at least 14 days prir t the mve taking place 2. Allw access t the accmmdatin, as reasnably required by the respnsible clinician and scial supervisr. 3. Cmply with medicatin and ther medical treatment [and with mnitring as t medicatin levels] [including [Specify here any particular nn-pharmaclgical medical treatment]], as directed by the respnsible clinician and scial supervisr. 4. Engage with and meet the clinical team, as directed by the respnsible clinician and scial supervisr. 5. Abstain frm alchl [save as directed by the respnsible clinician and scial supervisr]. 6. Abstain frm illicit drugs and legal highs. 7. Submit t randm drugs and alchl testing, as directed by the respnsible clinician and scial supervisr. 8. Nt enter the area[s] f [specify general lcatin] as delineated by the zne[s] marked n the map[s] supplied by [specify name f persn/rganisatin prducing map] and shwn t the Tribunal tday, save as agreed in advance by the respnsible clinician and scial supervisr. 9. Nt seek t cntact directly r indirectly [specify names]. 10. Disclse t the respnsible clinician and scial supervisr any develping intimate relatinship with any ther persn. 11. Disclse all pending and current [emplyment, whether paid r vluntary] [all educatinal activities] [all cmmunity activities] t the respnsible clinician and scial supervisr. 12. Nt leave the UK withut the prir agreement f the respnsible clinician and scial supervisr. Health and high quality care fr all, nw and fr future generatins