An NHS Trust v A

I will start this judgment by saying I am giving this judgment in open court. Mr. Farmer of the Press Association is present. There can be no question of anybody suggesting that this is a secret court, administering secret justice.

I am concerned with A, who is a teenage boy.

The sad circumstances of the case are set out with characteristic clarity by counsel for the Hospital NHS Trust, Ms. Victoria Butler-Cole. The application seeks orders and declarations from the Court of Protection, depriving A of his liberty for the purposes of administering to him medical treatment which will address the problems which he suffers from, which I will describe. When the case came before me this morning, it was thought that A’s father was going to act as his litigation friend. However, A’s father has taken legal advice which has suggested to him, that is, A’s father, that these proceedings are unnecessary. I do not agree with the advice that was given and, for reasons which I will explain, the proceedings are very necessary, but the upshot was that when the case was called on at 10.30 this morning A did not have a litigation friend. However, the Official Solicitor has come to the rescue, so to speak. Ms. Dolan has appeared for the Official Solicitor, who is prepared to act as A’s litigation friend, and so at 4.15pm today I am able to deal with the matter. As I said, the Official Solicitor agrees that the medical measures that are proposed are necessary in A’s best interests and that there should be a corresponding order made authorising a deprivation of A’s liberty for that purpose.

Ms. Butler-Cole’s position statement describes how A is presently detained under s.3 of the Mental Health Act 1983.It explains how A is autistic and that prior to the summer of 2007 exhibited a relatively high level of functioning, with an IQ in the normal range, but since then his condition has deteriorated sharply. He has subsequently displayed psychotic symptoms and a high level of aggressive behaviour, which has resulted in his detention under the Mental Health Act. He now functions at the level of someone with a moderate learning disability – I should say in this context “moderate” is a term of art; in normal English that would mean very serious – and is uncommunicative, and he is cared for – again, this is a very melancholy aspect of the case – in long-term segregation.

Why has A suffered this catastrophic decline since 2011? No one yet knows. Extensive efforts have been made to ascertain the reason for this. His parents, who are in full agreement, as I have said, with the measures that are proposed, report that he suffered an injury playing football in about 2011. Various investigations for a variety of neuro-degenerative diseases have been conducted, including Huntington’s disease, but all of these have been ruled out. There remain in the medical canon a number of other diseases that could be responsible but these can only be identified with a CT or MRI scan.

It is by this application that the hospital seeks the authority of the Court of Protection for such procedures to be carried out in A’s best interests, and, further, to authorise the use of such necessary physical restraint as will enable the investigations to be carried out. The CT scan will require A to be given a general anaesthetic because it is apprehended that he simply would not stay still, which is a necessary requirement of a CT scan, were he not to have the anaesthesia. Advantage would be taken of his condition when anaesthetised to perform necessary dental work. He suffers from caries, and it is possible that the pain from them is contributing to A’s condition. Even if it is not, he ought to have the caries filled because, were they not to be, oral infection, with calamitous results, could arise.

The proposed treatment is supported by witness statements from Dr. G, a consultant psychiatrist the psychiatric hospital; Mr L, a registered mental health nurse employed by the general hospital, which states the views of A’s parents, which are supportive; and Dr. W, the consultant anaesthetist addressing the arrangements for anaesthesia. I need not at this late hour read the content of those statements into this judgment. Suffice to say that they all speak with one voice as to the medical necessity of the procedures that are proposed.

One might have thought that I would in such circumstances make a simple order declaring that these procedures are in A’s best interests and authorising the necessary deprivation of liberty for that purpose, but the law is not so simple as to allow me to take that straightforward course. In order to make the necessary declaration of deprivation of liberty, I have to navigate my way – I am mixing metaphors, for which I make no apology – through a thicket of legislative drafting which seems to be designed to confuse and which is characterised by extreme opacity. The recent Law Commission report on the reform of this system has highlighted the impenetrability of much of the legislative provisions as one of the most pressing reasons for reform, and the legislative scheme and language here is a veritable smorgasbord of double negatives and subordinate clauses, requiring a navigational exercise from provision to provision, which is an arduous task even for someone who administers justice in this field on a regular basis.

The first port of call is s.16A of the Mental Capacity Act 2005. This is headed “Section 16 powers: Mental Health Act patients etc”. It states in subsection (1)

“If a person is ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty.”

Then in subsection (4) it states that schedule 1A, which is not to be confused with schedule A1, applies for determining whether or not the protected person, known as P in the Act, is ineligible to be deprived of liberty by this Act.

So the conclusion to be drawn from this is that if a Mental Health Act patient is ineligible by virtue of the terms of schedule 1A to be deprived of liberty, then the Court of Protection may not in a welfare order make a provision which does that. We now travel to schedule 1A to discover who these ineligible persons are. By paragraph 1 of schedule 1A it states that the schedule applies for the purposes of s.16A and then in paragraph 2 it states that a person, P, is ineligible to be deprived of liberty if (a) he falls within one of the cases set out in the second column of the following table and the corresponding entry in the third column of the table or one of the provisions referred to in that entry provide that he is ineligible. The table has three columns and six rows, so one first of all has to navigate to the second column, which is headed “Status of P”, to see if the person who may be ineligible falls within one of the classes, and for our purposes A falls within the second row, which is called case B, by virtue of him satisfying the conditions in the second column. That intersection of the second row and the second column states P is (a) subject to the hospital treatment regime but (b) not detained in a hospital under that regime.

Before I move on to determine the question of ineligibility, I ask as a matter of fact whether A, once the order that I make is implemented, will satisfy the factual criteria in column 2, row 2, of this table. A is subject to a hospital treatment regime under the Mental Health Act. As I have explained, he is detained under s.3 of the Mental Health Act. However, when he is taken from the psychiatric hospital to the general hospital he will not be detained in a hospital under that regime. He will be taken to the general hospital to be detained under an entirely different regime, not a mental health regime because – this is a feature of mental health law – the Mental Health Act does not authorise treatment without the consent of the detained person save for treatment to address a mental disorder. In this case the proposed treatment is not meant to address a mental disorder but is to address an underlying disease which may be causing a mental health disorder. So the factual criteria at the intersection of the second column and the second row of the table are satisfied.

I now go to the third column, which determines ineligibility. That says “See paragraph 3 and 4” and paragraph 3 is the only one relevant for my purposes. It states:

“This paragraph applies in cases B, C, and D in the table in paragraph 2”

and we are dealing with case B.

“(2)

P is ineligible if the authorised course of action is not in accordance with a requirement which the relevant regime imposes.”

One can understand the reason for these provisions, even if the draftsman of it seems to have gone out of his way to make them almost incomprehensible. The idea is that if the Mental Health Act regime imposes a specific course of action or requirement, then it is impossible for the Court of Protection to make an order at variance with that requirement. One can see the reasoning that underpins this, which is that if the Mental Health Act regime dictates a certain course, the Court of Protection should not be making orders at variance with that. The scheme plainly is intended to prevent any possibility of courses of treatment which are mutually incompatible being authorised.

So the question I have to ask myself is: is the authorised course of action, which is the course of action to be authorised by me, not in accordance with a requirement which the relevant Mental Health Act regime imposes? The answer is no, because the Mental Health Act regime does not touch the proposed medical procedures which are being proposed here. So the conclusion that I reach, having navigated my way through these provisions, is that A manifestly is not an ineligible person, or, to strip out the double negative, he is an eligible person for the procedures which I propose to authorise.

In making this decision, I am conscious that in a recent decision made on 30 April 2015 of Re AB [2015] EWCOP 31, decided by Judge Parry sitting in the Court of Protection in Cardiff, she reached, I think inadvertently, the opposite conclusion in her judgment in paragraph 54. This reads as follows.

“The case B would apply if AB”, who was the subject of those proceedings, “remained subject to s.3 of the Mental Health Act so that she is subject to the hospital regime but is given leave to attend the hospital without conditions attached which require her to remain at the hospital for the duration of her surgery.”

Pausing there, so far, so correct. All are agreed in court before me. It is the next sentence which is of questionable correctness. She says,

“Under paragraph 3 subparagraph (2) of schedule 1A, unless the proposed treatment is in accordance with the requirement which the relevant regime imposes, she is ineligible to be deprived of her liberty under the MCA.”

With great respect, I have to say that I do not agree with that and I wonder if a “not” or expression of negativity has somehow been omitted, because in fact paragraph 3(2) says precisely the opposite: the provision is aimed at avoiding conflict between, rather than requiring similarity of, actions under the MHA and MCA. Hence para 54 should have stated “...if the proposed treatment is not in accordance with the requirement which the relevant regime imposes, she is ineligible to be deprived of her liberty under the MCA”. In my judgment, any future scrutiny of that case should proceed on the basis that the second sentence of paragraph 54 accidentally omits a negative and inadvertently and mistakenly expresses the precise opposite of the true construction of paragraph 3 subparagraph (2) of schedule 1A. In such circumstances – and I apologise for the length of this judgment which I have given on this obscure point – I conclude by saying that I am wholly satisfied that A is eligible for the treatment which is being proposed and therefore for a deprivation of liberty. Lest there be any doubt about this, I am relieved that the Mental Capacity Act: Deprivation of liberty safeguards code of practice issued by the Secretary of State, which the court has to have regard to under the terms of the Mental Capacity Act, confirms unambiguously my interpretation, which, I hasten to add, has been helpfully explained to me by Ms. Butler-Cole as well as Ms. Dolan. In paragraph 4.50 it states:

“If the proposed authorisation relates to deprivation of liberty in a hospital wholly or partly for the purpose of treatment for mental disorder, then the person will also not be eligible if they are: currently on leave of absence from detention under the [1983 Act] or subject to supervised community treatment, or subject to conditional discharge, in which case powers of recall under the Mental Health Act should be used.”

Then in 4.51 it says:

“People on leave of absence from detention under the Mental Health Act 1983 or subject to supervised community treatment or conditional discharge are, however, eligible for deprivation of liberty safeguards if they require treatment in hospital for a physical disorder.”

That is what is being proposed here; the investigative measures are being proposed in order to determine if A suffers from organic disease which has caused his calamitous decline since 2011.