Mental health law briefing 255 – The case of AB: Inherent jurisdiction and the use of conditional discharge for patients with capacity
The High Court has recently given a decision regarding the exercise of its inherent jurisdiction to regularise a care plan that had been put in place for a patient (referred to as AB) who was subject to a hospital order and restriction order under sections 37 and 41 of the Mental Health Act and who had been conditionally discharged.
AB’s deprivation of liberty
The matter came before the court as a result of an application made by the local authority seeking an order authorising AB’s deprivation of liberty. This application arose as a result of the decision of the Court of Appeal in the case of MM that had held that the First Tier Tribunal had no power to order the conditional discharge of a restricted patient on conditions that amounted to a deprivation of liberty, even if the patient consented to those conditions. That judgment was subsequently upheld by the Supreme Court in November 2018.
AB had been convicted of sexual offences by the criminal court when he was 19 years of age. 17 years after his conviction, he was discharged from hospital by the First Tier Tribunal pursuant to section 73 of the Mental Health Act on conditions that included a requirement to comply with his care and risk management plan. He suffered from a mild learning disability but had capacity to consent to his care, support and accommodation arrangements.
AB’s care plan
He continued to require 24 hour supervision to prevent re-offending in the community. The conditions directed by the Tribunal included that AB be supported on a 24 hour basis. This support required that he be supervised every day for 24 hours by a specialist service. This supervision together with various other conditions imposed that included residing in accommodation approved by the clinical team and being compliant with his care plan and risk management plan, amounted to a deprivation of AB’s liberty. AB had consented to those conditions and continued to do so.
His care and risk management plans were reviewed every three months by the project supervising him and every six months by the multi-disciplinary team. AB was aware that if he did not adhere to his care and risk management plan it would be likely that he would be recalled to hospital very quickly.
The court recognised that AB required an extremely high level of monitoring and support without which his feelings of anxiety and self-isolation could result in repetition of his offending behaviours. AB’s multi-disciplinary team supported the care plan and considered it appropriate to authorise his continuous support and supervision in the interests of his well-being and to reduce the risk of his re-offending. The care plan allowed AB to live safely in the community and to keep others and AB himself safe from harm.
The care plan to which AB was subject was the sort of care plan that had been declared unlawful in the MM case and to which AB could not consent. The applicant local authority was therefore concerned that these arrangements could be challenged by way of judicial review and/or a claim for damages under the Human Rights Act 1998.
One of the options would have been for the local authority to amend the care and risk management plans to remove arrangements that amounted to a deprivation of liberty. However, that would have meant a significant reduction in AB’s supervision that would have resulted in a real risk that AB would be recalled to compulsory detention in hospital. This highlighted the differences in the situation of a patient such as AB with capacity to consent to conditions in the care plan to that of a patient without such capacity. Had AB not had capacity to consent he could have been discharged by the First Tier Tribunal on conditions in his care plan as the deprivation of liberty arising from the conditions could have been lawfully authorised. Accordingly, the local authority had decided to ask the court to authorise the deprivation of liberty that AB’s care and risk management plan gave rise to through the use of the court’s inherent jurisdiction.
The court’s inherent jurisdiction
The court analysed the possible bases for the exercise of the court’s inherent jurisdiction in the circumstances of AB’s situation. The court referred to the case of Anderson v Spencer, a decision of the Court of Appeal about the use of the court’s inherent jurisdiction, that the local authority’s barrister had drawn to the attention of the court. He submitted that:
- there was no legislative provision governing the position of a capacious person in that the Mental Health Act provided no remedy;
- it was in the interests of justice; and
- there were sound and strong public policy justifications.
The lawfulness of AB’s care and risk management plan could be resolved in the case of an incapacitated restricted patient by making an application to the Court of Protection. It would therefore be wrong for there to be no such opportunity in respect of capacitous restricted patients.
The court noted that if AB’s care and risk management plan was ruled unlawful the consequences were stark for AB. He would either be detained again in hospital or be subject to a change in the restrictions in the care plan so that they no longer amounted to a deprivation of liberty, with the negative results that that would bring.
The court considered that it was appropriate and in the interests of AB and the general public to authorise the extension of the inherent jurisdiction to regularise AB’s care plan and to do so by declaring that it involved a deprivation of liberty and providing for a regular court review of the plan.
The decision of the court is of significance and will have a practical benefit. Had the court not exercised its inherent jurisdiction a considerably higher number of patients may have been detained in hospital in the future.
 Hertfordshire County Council v AB  EWHC 3103 (Fam)
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