Northamptonshire Healthcare NHS Foundation Trust & Anor v Ml (Rev 1) [2014] EWCOP 2

[2014] EWCOP 2

Case No COP 12204620

IN THE COURT OF PROTECTION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16/05/2014

Before

MR JUSTICE HAYDEN

Between

NORTHAMPTONSHIRE HEALTHCARE NHS FOUNDATION TRUSTApplicants

NORTHAMPTON AND NENE CCGApplicant

ML1 st Respondent

EL2 nd Respondent

BL3 rd Respondent

Mr John McKendrick (instructed by Bevan Brittan Solicitors) for Applicants

Mr Parishil Patel and Ms Amy Street (instructed by Irwin Mitchell Solicitors) for 1 st Respondent

EL and BL in person for in person

Hearing Hearing dates: 24-26 February 2014 & 3-4 March 2014

Judgment

MR JUSTICE HAYDEN

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Mr Justice Hayden :

[1]I am concerned with ML who is a young man of 25 years of age. ML has severe learning disability, developmental disorder, autism, epilepsy and diabetes. He has very limited conventional skills of communication or social interaction. With the exception of a period of admission to the Vale Hospital in 2012, ML has lived in the family home with his parents all his life. EL (his mother) is the primary carer providing full time care and support. BL (his father) has full time employment as a computer software engineer but he is very much involved with ML’s life in the evenings and at weekends. ML also has an elder brother who is important to him but who has now left home. 3 days per week ML attends the National Autistic Society Day Centre between 10.00am -3.00pm.

[2]At the Day Centre all the staff care about ML but he has a particularly strong relationship with a Mr Ian Weston. Mr Weston attended court to give evidence at my request and for reasons that I will refer to later in this judgment, Mr Weston is plainly fond of ML, knows him well, knows how to manage him and keep him happy. He is enthusiastic to develop ML’s potential. Some aspects of ML’s behaviour are very challenging, inevitably these have to be the focus of my attention when I come to consider the issues before me, but I should like to emphasise, that which BL has properly insisted upon at this hearing, there is a great deal more to ML than either his raft of problems or his, at times, violent outbursts. He is a young man who often radiates a sense of his own happiness and contentment to others; he has a real capacity for enjoyment, especially swimming. He can be warm and affectionate to those he trusts and knows well, particularly his mother. He has a sense of humour that is entirely his own, which occasionally has a subtlety and nuance to it that both delights and sometimes inspires his parents. He enjoys walking and visiting charity shops to root out DVDs and videos. His father tells me he is a great fan of videos. He was fortunate to have a very committed teaching assistant at school with whom he remains in contact.

[3]The most important people in ML’s life are his parents. They are a strong articulate couple utterly committed to their son. Their love for him is powerful and unconditional and they are tenacious advocates on his behalf both within and outside these proceedings. They have opposed the declarations being sought by the Northamptonshire Healthcare NHS Foundation Trust and the NHS Nene Clinical Commissioning Group (‘the Applicants’). The applications are supported by the Official Solicitor acting on ML’s behalf. The parents have opposed the applications for a complexity of reasons which I will analyse in due course but the sincerity of their opposition is beyond question. ML is very lucky to have his parents, they have provided him with a secure and loving home and set a template for his relationships which, many professionals in the case have observed, has equipped him well for forging new relationships in the future. They would say, without hesitation, that they are equally lucky to have ML.

[4]The Applicants seek declarations that:- i) ML lacks capacity to litigate and/or to make decisions about his care and /or residence; ii) it would be in ML’s best interest to reside at Bestwood Hospital; iii) it would be in ML’s best interest to undergo treatment at Bestwood Hospital until such time as he is able to be discharged to a suitable assisted living package in the community.

[5]Behind these deceptively simple draft declarations is a history of professional and family conflict which has frequently been bitter and occasionally rancorous (amongst the professionals). It is a case which has engendered many high emotions in people who feel strongly about the important nature of the work they are involved in and who are very highly motivated to achieve the best outcomes for ML. Some, though certainly not all, witnesses have overstated their cases, been selective in their use of material, emotive in their use of language, disrespectful to those who hold contrary views. In consequence, despite their laudable objectives, they have made it difficult for me, at times, to get a clear picture of how ML functions and how his needs might best be met. If I accept the evidence of Susan Freeman, Nurse Consultant, ML is one of the most dangerous patients she has encountered still living within the community. She had, she told me, “only experienced one other person with more aggressive behaviour impact on others to the severity that ML’s does” and this was in the context of 30 Years of nursing people “whose behaviour challenges services” as she puts it. In her statement of the 31st January 2014 Ms. Freeman observed “I am a very experienced learning disability nurse. In all the years that I have been practicing ML is one of the most complex and challenging patients that I have been involved with, the range of his needs is quite vast”. Ms Freeman described ML as showing high levels of aggression “impacting on every area of his life and inhibiting appropriate health care intervention”. She believed his abilities were diminishing in an isolated routine. She said “If ML is not transferred out of his current environment and routines his world is going to continue to decrease”. ML’s diet said Ms Freeman was entirely unsatisfactory. By way of example she said ML ate only jam sandwiches and that little attempt was made to vary the diet. Certainly jam sandwiches, as Mr Weston, later confirmed were all ML ever ate at the Day Centre. I have heard in evidence that this resistance to new experiences, taste or routines is a feature of his autism, not uncommon at this severe end of the spectrum. Ms Freeman was uncompromising in her professional criticism of the National Autistic Society Day Centre. Their approach to ML’s care was she said “fundamentally flawed” it was “managing him at a distance” it involved withdrawing from him to avoid outbursts, it left him isolated and under stimulated and it served to reinforce his reliance on aggression.

[6]In respect of the parents Ms Freeman said that they believe ML is simply unable to make progress or develop new skills. They are, she considered, over reliant on medication and believe its restorative powers will ultimately manage ML’s aggressive behaviours.

[7]There was, however, a radically different picture of ML presented by other witnesses namely the parents, Ian Weston (the support worker at the NAS Day Centre) and Ms Heather Eyers.

[8]It was not possible for the mother (EL) to come to London, it would have required an intolerable and unsustainable interruption to ML’s routine. I took her evidence by telephone link so all could hear it. She told me that she had made progress with ML’s diet, that he was now eating a broader range of foods: ‘pasties’, ‘crisps’, ‘sausages’ she said, by way of example, not particularly nutritious but an important improvement . She and her husband had attributed the peak in ML’s violent behaviour at the end of 2012 and early 2013 as being a consequence of his distress during his term as an inpatient in the Vale Hospital, where they considered he had been too readily ‘secluded’ (locked in a partially padded room) and for extended periods of time (4 ½ hours on one occasion). He had since calmed down and become more manageable. They had experienced no difficulty in managing him at home for months. Both parents said he was happy at home, well known and protected in their local community. He enjoyed seeing his brother and enjoyed the Day Centre. They have a padded room at home and both BL and EL told me that ML goes willingly to it when required. They simply do not see the extent of aggression that is attributed to ML and believe that the documented case gives only a partial picture. “We do not keep records at home”, they say. Moreover, they assert, the case papers inevitably concentrate on problem episodes rather than the many times when ML is relaxed and content. In their carefully presented closing submissions they undertook an analysis of the advantages of their proposals. It purported to be a comparative analysis but in truth, it was, understandably, largely one sided. They wish the present arrangements to continue and submit Home / NAS Day Centre i) We accept that there are no community living placements currently suitable for ML but there is no immediate need for ML to be moved from his family home. We are very happy for him to remain living here with us. We have managed to look after ML for 25 years and see no reason why we cannot continue to do so for the future. ii) We are able to provide physical and medical care for ML. He is not disadvantaged in any way by living at home. We believe that we have the best understanding of ML’s medical needs having had to deal with them over his life. iii) We believe that ML has gained enormously from moving back into his family home. He is happy and enjoys his life. He has daily contact with the outside world. His life is full and he is happy and secure in his routines. iv) We believe that the work we have been doing at home with ML and the plans given in the recent NAS (National Autistic Society) witness statement give a solid base for work to develop ML’s functional skills using methods that take his autistic limitations into account. We believe this is likely to result in slow but steady progress for ML. v) ML is an integral part of a loving family. We have always accepted his challenging behaviour and dealt with it. We have come through the difficult times with him and never gave up on him. We strongly believe that ML enjoys his family life and would want it to continue if he were able to choose.

[9]Having heard in evidence that ML had a particularly good relationship with his care assistant Ian Weston, I asked if Mr Weston could attend court because I hoped to be able to reconcile these differing accounts of ML’s general behaviour. Mr Weston could not have been more positive: he told me that ML enjoys walks but had, for example, easily been distracted from his usual routine when routes were impassable due to recent flooding. That was a good indicator of some of the progress being made he thought. He saw his role as “giving him the enjoyment that he needs”. I am impressed by the extent to which Mr Weston knew how ML was able to enjoy himself: ‘his Ipad’; ‘YouTube’, especially ‘Winnie the Pooh’ videos which he regularly enjoyed. He particularly likes swimming and likes Mr Weston repeatedly jumping into the pool. He enjoys the sound of the splash.

[10]Mr Weston described how he had developed a habit for deflecting repeat requests for him to jump in and to which ML had responded. ML had learnt to dry himself which had always been a problem in the past he said. He was very clear that ML was much happier. Mr Weston was a tall well built man, both his stature and his contagious enthusiasm undoubtedly gave him an advantage over some of his colleagues. This was recognised and he was more regularly selected by the Day Centre to assist ML. It was made clear to me that one or two of the more diminutive assistants were less comfortable.

[11]ML, it was agreed, likes “strong confident men”. I formed the view that whilst that strength and confidence was important it was not necessarily physical strength that he responded to (though that undoubtedly helps). He appears to respond to those he trusts well. I have seen photographs of him with his mother which reveal a capacity to display affection that the reports and evidence did not fully reveal to me.

[12]All this said I note that on one very unfortunate visit to the swimming pool ML lashed out against Mr Weston, causing him to fall to the ground and crack two ribs. Mr Weston had to take some time off work. It did not deter him though and his relationship with ML has continued to flourish. Mr Weston knew that ML’s parents want to keep him at home and attending the Day Care Centre. I am clear that he intended to support them in his evidence. However, his commitment to ML and I thought real affection for him also communicated a sense of his own evaluation of ML’s potential. He seemed to me to be enthusiastic, to go beyond ‘keeping him happy’ and to bring him on. Mr Weston had, in my judgement, a strong sense that ML had greater potential than was being realised. Both ML and the NAS Day Centre are very fortunate to have Mr Weston. It was very clear to me why ML would respond to such enthusiasm and energy.

[13]I also heard from Ms Helen Eyers, she is employed as the Nominated Individual and Safeguarding head at the National Autistic Society. She has known ML and his parents since October 2012 when she commenced her post. She has been involved in regular meetings with the Nene Clinical Commissioning Group and the Northamptonshire Healthcare NHS Foundation Trusts, the purpose of which was to focus the objectives and approach of the day service placement at the National Autistic Society. One of Ms Eyers’ many roles is to be what she describes as “an assessor of need for the The National Autistic Society, producing comprehensive support designs and care plans for those with an autism spectrum disorder both internally and externally to the NAS”. She described ML in these terms. “ML has an autism spectrum disorder and in my opinion demonstrates severe difficulties in his communication, social interaction skills and ability to sequence, plan and envisage the consequences of an action. These difficulties, coupled with some probable sensory sensitivity, mean that he finds the world hard to predict. Social interaction and communication with others is problematic and thus he chooses to spend time in an environment that he can control with limited interaction with others. When ML is out of this environment he needs to know exactly what is expected and the purpose of an activity and to be supported by someone he trusts or his levels of anxiety may increase to such a point that he is unable to regulate his behaviour, culminating in an incident of physical aggression”.

[14]Ms Eyers identifies the objectives of NAS: “The purpose of NAS day service is to provide ML with some activities that he enjoys, ensuring that he has time away from the family home and mixes with others outside of his immediate family. To support ML with strategies that will help him overcome the disabling affects of autism. This mainly takes the form of supporting him to develop meaningful communication skills, develop structure that gives him control and autonomy over certain aspects of his life, increasing his choice making skills and developing his ability to engage with and tolerate others. In addition the purpose of the day service is to increase ML’s motivation and occupation in areas that are meaningful to him”.

[15]In her evidence Ms Eyers confirmed that in January 2013 ML had been referred to the NAS Behaviour Support Team because those supporting him were concerned about increasingly challenging behaviour and the fact that ML was seen to be becoming increasingly socially isolated. Staff had adopted a strategy of closing a gate when ML was physically aggressive. A Behaviour Support Programme was put in place which had 4 aims: i) to increase the level of communication and interaction with ML; ii) to increase the number and variety of activities that ML participates in; iii) for ML to have an effective alternative method of communicating that he needs time in his own space; iv) to increase ML’s opportunities for social interaction. Ultimately returning to multiple occupancy rooms at the resource centre.

[16]In her report to the Court dated 11th February 2014, Ms Eyers evaluates the rationale and the success of the program. I propose to set her analysis out in full in order properly to do justice to it and so that it can address the criticisms made of it: “The rationale of our current approach to behaviour support is to ask staff to leave at set intervals, so that ML’s need for time alone is respected before he has to present with physical aggression, which automatically causes the staff to withdraw. This approach aims to weaken the relationship between the presentation of the behaviour of concern and the reinforcer. This is achieved because the reinforcer is delivered independently of the presentation of the behaviour of concern. At the same time staff are modelling a more socially acceptable way for ML to communicate that he would like to spend time alone (waving of the hand). The full rationale is outlined in exhibit HE3. Since the introduction of the behaviour support programme the day service has seen a drop in the amount of incidents to a maximum of 5 in one month, from up to 12 previously; with no incidents that have caused harm to others in a 3 month period. Analysis of the incident reports also indicates that the length of time of incidents has decreased from a maximum of 5 hours per day to a maximum 3 minutes. The intensity of incidents has also seen a decrease, with 55% of incidents post intervention requiring minimal response from his support team and not interrupting his activity, compared with 21% prior to the intervention - Exhibit HE4. I feel that the current approach to supporting ML is successful, although it is slow paced, and we have seen a decrease in both the frequency and intensity of behaviours of concern and an increase in the amount of time that staff are spending in the space that has been dedicated to ML. It must be acknowledged that ML only currently spends 15 hours per week at the day service. The aims of the Behaviour Support Programme are now to increase the amount of time that staff are actively engaged in meaningful activity with ML – Exhibit HE5 In terms of the NAS continuing to support ML it is my opinion that whilst his levels of anxiety and physical aggression remain at current frequency and intensity then ML is not posing a high risk to those supporting him, himself or others who use the service. I would be cautious about using any other approach at the day service than the current Behaviour Support Programme, which relies on Non-contingent reinforcement, in which staff give ML structured periods of time when they are not in his company, as well as teaching functionally equivalent skills for him to tell us that he wants us to leave (rather than use of physical aggression), as this is having the affect of decreasing the number of incidents that ML is having, however it is a slow process and would need ML to continue to have his own safe space at the centre and to be more tolerant of staff before we can begin to look at preference assessment to find other activities that interest him. The use of ‘extinction theory’ would not be appropriate at the day service due to the high risk of an ‘extinction burst’ challenging behaviour, the result of which would be of too high risk in this setting. The NAS are committed to providing a good support service to ML and I do feel that once we have worked on his ability to tolerate others we can introduce a range of techniques to develop his functional skills and this will include : i) Implementation of the Picture Exchange System to support his communication skills; ii) Intensive interaction sessions to support development of his social interaction skills; iii) Completing Sensory assessment and developing sensory based activities that meet his processing needs, especially in relation to tactile stimulation, olfactory stimulation and proprioceptive stimulation. iv) Preference assessment to discover activities that interest and motive ML.

[17]The Strategy referred to as ‘extinction theory’ has been the subject of much controversy in this case.

[18]I will return to the concept shortly. It is clear to me that Ms Eyer’s report was written not only to assist the court but to defend the NAS approach from the onslaught of Ms Freeman’s critique. I have referred to some aspects of this criticism already but they are set out in a document headed ‘Adult Safeguarding Referral form’, dated 18th October 2013.

[19]In that document Ms Freeman stated that the practices adopted by the NAS at the Day Centre are interfering with ML’s rights to personal autonomy, dignity, privacy, respect and freedom of movement: she also observes “It is appreciated that the level of behaviours ML can display can be very aggressive and the risks of injury to staff can be high, however I feel this does not make poor practice and an undignified approach to providing care acceptable”.

[20]It is clear that a very significant ideological schism had developed as to how ML’s best interests could most effectively be served. It is also equally clear that this difference did not engender any creative thinking in which both views were respected. Rather, in my judgment, it led to an oppositional approach in which, I regret to say, ML’s best interests were frequently eclipsed by disagreement in which the defence of theory and amour propre became the priority. The sadness of it, in my view, is that there is a real legitimacy in both perspectives. In her evidence Ms Eyers responsibly but with some regret recognised that the rate of progress made by ML at the Day Centre was very slow. The resources at the Day Centre were of necessity limited compared to the Bestwood option, so too was the time that they had with ML. I cannot say for sure, though I suspect that she had also seen in Mr Weston’s evidence, his strong sense of ML’s unfulfilled potential which emerged guilessly in his descriptions of him.

[21]Dr Peter Carpenter, a Consultant Psychiatrist at Litfield Home Medical Centre in Bristol attended court to give evidence. Dr Carpenter specialises in the assessment and care of adults and children with learning disabilities and has had a special interest in autism for nearly 30 years. His views evolved as the litigation progressed but by the time of the hearing before me he had clearly concluded that that the Bestwood option was right for ML. BL did not accept Dr Carpenter’s ultimate conclusion but he decided not to put it to the assay at the hearing, a course which in my view was sensible and pragmatic.

[22]Dr Ursula McCann is a clinical consultant psychologist employed by Northamptonshire Healthcare NHS Foundation Trust. Dr McCann expressed her views forcefully. She concluded that :- “ML has learned, mainly through a process of negative reinforcement, to display aggression in order to avoid non preferred tasks and/or stimuli. In other words, every time ML is aggressive or threatens to be aggressive, it typically results in the removal of the aversive stimulus which, for ML, is the proximity of a person, the expectation of interaction with a person or other unwanted task demands or a combination of these factors. Introduction of any of these absent elements automatically and often abruptly raises the probability of aggression”. She continues “It is my view that ML’s lengthy history of negative reinforcement has resulted in a reduction in tolerance over time for those non –preferred tasks or stimuli”.

[23]Dr McCann prepared several reports and gave quite extensive oral evidence. My summary of her central conclusions cannot do justice to the time and energy she has given to the issues in ML’s case. However, the core of her opinion is a strong belief that ‘intensive behavioural intervention’ is required to advance towards a clearly identified goal of ML living in the community with a supported placement. Dr McCann certainly did not accept the gains the NAS Day Centre considered were being made. In my view, however, the reality is that professional polarisation, and ultimately rather poor professional communication had obscured the picture to a degree that inhibited accurate assessment. Dr McCann emphasised the importance of a strategy known as the “Extinction Burst” to which I have alluded earlier.

[24]An Extinction Burst is defined as follows:

“Extinction…. involves eliminating the reinforcement contingency maintaining a response which can result in … a temporary increase in the frequency, intensity or duration of the target response, also called ‘Extinction Bursts’ ” (Cooper, Heron and Heward, 1987 in Leman and Iawatu 1955). I hesitate to attempt to reduce this concept into lay terms because, as has been emphasised, to do so runs the risk of oversimplifying what can be a subtle and complex process. Nonetheless, with that caveat in mind, it implies that if ML is confronted with something he does not like (stimuli of any kind) his fight instinct is aroused. The essence of the technique is to not respond in spite of the aggression and to continue the stimulus. It seems inevitable that until ML realises that his aggression is not causing the removal of the stimulus his aggression will accelerate. Breaking through this cycle, as I understand it, is termed the “extinction burst”

. As ML recognised, he and EL are simply not able to manage this strategy. The reality (as opposed to the theory) is very painful and distressing both emotionally and likely physically too. BL told me he was profoundly afraid for his son, frightened about the technique and about the consequences if as he puts it “it all goes wrong”.

[25]One of the reasons the parents are so anxious is that ML had a very unhappy period as an inpatient at The Vale Hospital. ML was admitted between March and August 2012 as his parents were struggling to manage him. He returned having been discharged under the Mental Health Act 1983, pursuant to the discretionary powers of the Mental Health Review Tribunal in August 2012. It seems clear that the approach of the The Vale had been challenging and, had broadly, pursued the ‘extinction burst’ strategy that I have referred to above. It was a very difficult period for ML and his family. It was his parents who ultimately applied for his discharge under the Mental Health Act, which was opposed by the Trust.

[26]In his 1st report, dated 24th October 2012, Dr Carpenter reviewed this period of admission. He saw no evidence that during the 5 months in hospital ML had learnt new self care skills sufficient to change his care needs. He observes “In hospital he appears to have been restrained at length and this often disturbed him later, it certainly seems to have encouraged him to use his teeth to get away from being held… He was then moved to another room to be secluded. My assessment is that as he had by then been in a struggling restraint for a period of time he enters the seclusion room very aroused and angry and then kicks and headbangs in a way that he was not prone to do – to the point of knocking himself unconscious and giving himself black eyes”.

[27]In Dr Carpenter’s assessment, based on his review of the notes, the lengths of seclusion needed for ML to calm down were 10 times longer than they had been at home. Dr Carpenter also added: “It is a challenge to find things that he enjoys. I feel we need to brainstorm the sensory likes he has and activities suitable for his development level”.

[28]I endorse his last observation and I would emphasise it because, in different ways, every witness indentified the importance of this. Had there been a more collaborative approach amongst the professionals I suspect that much of this work would already have been done.

[29]Annexed to Dr Carpenter’s report is a schedule headed ‘Hospital Seclusion record extracts’. I have found that to be a very disturbing document indeed. BL was unrepresented at this hearing and so I, on his behalf put this document under considerable forensic scrutiny. It is intrinsic to BL’s case that ML’s past treatment at the Vale Hospital has a direct bearing on future treatment and the declarations sought to enable such treatment to be implemented. Analysing carefully the periods of ‘seclusion’ whilst at the Vale Hospital is therefore crucial to this forensic process. BL is not a lawyer, he is a father. Though very effective in other aspects of the presentation of the case, the material relating to seclusion was something he found difficult to organise and evaluate. In my judgment that period was so full of pain for him as a father he could barely face revisiting it. His distress was visible despite his determination to remain controlled.

[30]The way in which and the extent to which vulnerable adults are ‘secluded’ or deprived of their liberty is one of the indexes by which we measure our maturity as a democratic society. The necessity and proportionality of restriction of an individual’s personal autonomy requires constant vigilance and effective independent review. Both the framework of the Mental Health Act 1983 and the Mental Capacity Act 2005 are rigorous in affording a regime of both protection and review. Public funding for family members in both systems is rarely available and so they regularly appear unrepresented. This inevitably imposes an even greater burden on the offices of the Official Solicitor to ensure that those who they represent are fully protected. The enquiry into the extent and safety of ML’s detention in the Vale Hospital here was Judge led. It ought not to have been necessary for it to be so. The facts ought to have triggered, at very least, forensic curiosity. The Official Solicitor has provided, valuable assistance on the legal issues the case raises but the welfare investigation was, in my judgement, not sufficiently searching.

[31]On the 10th April 2012 ML was kept in seclusion for 5 hours. That was unusual, but the records show that he was regularly secluded between 1 hr and 1hr 30 minutes.

[32]‘Seclusion’ is defined in the Mental Health Act Code of Practice “15.43 Seclusion is the supervised confinement of a patient in a room, which may be locked. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others. 15.44 Alternative terminology such as “therapeutic isolation”, “single-person wards” and “enforced segregation” should not be used to deprive patients of the safeguards established for the use of seclusion. All episodes which meet the definition in the previous paragraph must be treated as seclusion, regardless of the terminology used.”

[33]Further features of the codes need to be highlighted: “15.45 Seclusion should be used only as a last resort and for the shortest possible time. Seclusion should not be used as a punishment or a threat, or because of a shortage of staff. It should not form part of a treatment programme. Seclusion should never be used solely as a means of managing self-harming behaviour. Where the patient poses a risk of self-harm as well as harm to others, seclusion should be used only when the professionals involved are satisfied that the need to protect other people outweighs any increased risk to the patient’s health or safety and that any such risk can be properly managed. 15.46 Seclusion of an informal patient should be taken as an indication of the need to consider formal detention. 15.47 Hospital policies should include clear written guidelines on the use of seclusion. Guidelines should:• ensure the safety and wellbeing of the patient;

• ensure that the patient receives the care and support rendered necessary by their seclusion both during and after it has taken place;

• distinguish between seclusion and psychological behaviour therapy interventions (such as “time out”);

• specify a suitable environment that takes account of the patient’s dignity and physical wellbeing;

• set out the roles and responsibilities of staff; and

• set requirements for recording, monitoring and reviewing the use of seclusion and any follow-up action.

[34]The Codes of Practice at para 15.60 at seq. require that careful written records are kept:

“Record keeping: (15.62) Detailed and contemporaneous records should be kept in the patient’s case notes of any use of seclusion, the reasons for its use, and subsequent activity. Records should also be kept in a special seclusion recording system which should contain a step-by-step account of the seclusion procedure in every instance. Responsibility for the accuracy and completeness of these records should lie with the professional in charge of the ward. Local policies should require the records of each episode of seclusion to be reviewed by a more senior professional.”

[35]Susan Freeman drew the hospital’s attention to what she considered to be inadequate padding to the door of the seclusion room. She is very experienced, she is, as is already evident from this judgment, forthright in her manner of expression. I should have thought that anyone hearing her views on this particular issue would have responded immediately and with some alarm. Astonishingly, and I do not use that word lightly, what followed was an email exchange that challenged the necessity of the additional padding largely on the grounds of expense. On one occasion ML knocked himself unconscious and on another may have sustained two black eyes. I say ‘may’ here because there is a possibility that the black and swollen eyes were the consequence of rubbing eyes affected by hay fever. ML is very resistant to physical examination and the Doctor who saw him was unable to come to a conclusion. Ms Freeman preferred the more benign explanation but with respect to her the proper course was to have remained open minded.

[36]The fact of injury coupled with the frequency and the duration of some of the periods of seclusion is profoundly disturbing. The tardiness in responding to Ms Freeman’s concerns, (the padding was eventually rectified) and the reasoning behind the delay is to, my mind, unjustifiable. ML’s safety and his dignity were avoidably compromised. At the end of the case I heard from Mr Richard Mc Kendrick , the Chief Operating Officer of the Northamptonshire Healthcare NHS Foundation Trust. He had, I think, been present throughout most if not all of the evidence in this case.

[37]He told me from the witness box:

“Hearing the evidence I share the concern expressed. I am very disappointed at the quality of care ML received at the Vale Hospital. I find it unacceptable. On behalf of the Trust I apologise to the L family for making mistakes and getting it wrong. In my experience, listening to and reading the evidence we should have been more proactive from the first point of ML’s head banging to ensure the seclusion room was safe and properly padded…. The whole circumstances of ML’s admission falls far short of the standards our staff and services aim to provide. I can only say the staff acted with good intentions but made mistakes. I apologise unreservedly on behalf of the Trust.”

[38]Mr McKendrick went on in his evidence to state “I will take on board the lessons of this hearing to see that this does not happen again.”

[39]That fulsome apology was well judged and nothing less would have been appropriate. When I heard it I asked BL for a response. He told me that he was ‘astonished’. He accepted it with dignity, though he commented that it was too late to afford him any reassurance.

[40]BL feels that if ML goes into care at Bestwood for the lengthy period (18 - 24 months) contemplated, it will, because of his Autism, weaken his relationship with his family, who he does not respond to well out of the context of the home environment. It is distinctly possible he will not want to see them in hospital. If his behaviour were to deteriorate, as it did following the Vale admission, he would potentially be entirely unmanageable in the community (as Ms Freeman already feels he is) and there would in effect be no way back. ML would have lost the delicate security of the present status quo and be consigned to permanent institutional care. For BL that heartbreaking prospect is simply too great a risk.

[41]I hope I have done proper justice to BL’s primary arguments. It is not difficult to see how in the light of the painful experience that Mr McKendrick has now acknowledged BL should be so deeply resistant to the care course planned. No parent or compassionate individual could fail to have anything other than profound sympathy for him and his wife.

[42]If I were determining whether the competing alternatives are within the parameters of reasonable disagreement I might have concluded that they are, but that is not my task. My responsibility is to identify what is in ML’s best interest, mindful that the course proposed by the Applicants undoubtedly, as all agree, amounts to a deprivation of liberty. As the Supreme Court has recently restated P (by his litigation friend the Official Solicitor v Cheshire West and Chester Council and another; PQ (by their litigation friend, the Official Solicitor v Surrey County Council [2014] UKSC19, “human rights have a universal character”. In determining best interests, I must be careful here to focus on what is right for ML by independently and dispassionately evaluating his personal situation. BL’s perception of best interests is relevant only in so far as he is a crucial component of any plan and as such any plan which has his whole hearted support is more likely to succeed. But BL’s views have no further weight than that. (See subsection 4 (7) (b) of the Mental Capacity Act 2005 which imposes an obligation to take into account, if it practicable and appropriate to consult them, the views of anyone engaged in caring for the person or interested in his welfare).

[43]The forensic process in this court has not permitted any witness to seek refuge in any particular professional ideology. It has kept an intense focus on ML and what is right for him. In the end the picture that emerged is an amalgamation of the views, contributions and experiences of all the professionals, from the varying disciplines and, of course most importantly from the parents. As BL recognised there was ultimately a professional consensus, though not one to which he could subscribe.

[44]The key milestones to my conclusions are as follows: i) ML at 25 will at some point need to be afforded the opportunity of independent living, which will always require a support structure to underpin it. His parents will not be able to care for him for ever; ii) It is important that any move is planned and not the result of crisis, either in ML’s behaviour or in his parents’ health or general situation; iii) There is, when analysed, a consensus that ML has greater potential than his present situation is enabling him to realise; iv) The objectives of any regime of care ought to aspire to the goal of achieving independent living. v) That goal (iv) may not always mean that ML’s personal happiness is given priority; integral to improvement is challenge which by definition is not easy; vi) ML has a strong relationship with his parents, sibling and other key figures in his life. This relationship with his loving and committed parents has given ML a template from which to forge other relationships, as has been seen at the NAS Day Centre. All agree that this capacity is a very encouraging prognostic indicator of ML’s capacity to develop strategies that will equip him better for independent living; vii) It follows from (vi) above that in addressing the balance of risk in terms of likely outcome at the Bestwood Centre the preponderance of evidence is optimistic. This is of crucial importance when determining whether to retain the status quo or not; viii) Bestwood is a quite extraordinary resource. It is regarded by all the experts as a centre of excellence. It is finely tailored to the needs of those in ML’s circumstances. BL makes a very telling acknowledgement that if it were convenient to their home, so that they could call in frequently, he would now be supportive of it; ix) Bestwood is highly sought after by many patients, it is an expensive resource that rarely becomes available. It follows that if ML were moved in crisis it is highly unlikely to be available. Indeed this may be ML’s only chance to gain access to such provision; x) Whilst the Vale Hospital was not best equipped to manage the ‘extinction burst’ approach, predicated on exposure to stimuli, Bestwood is streamlined to put it in place and fully equipped to do so. I am persuaded that such approach is the correct one for ML.

[45]I am satisfied that it is in ML’s best interest to have this opportunity. There is no guarantee of success of course and I fully understand the parents anxiety. I have been struck by how similar their concerns are to the fears of every parent whose child leaves home on the first steps to independent living. I don’t intend in any way to trivialise the issues here by that observation nor to underestimate the impact of their bad experiences at the Vale Hospital. I say it because the sheer normality of their reaction signals to me that ML like any other young man is entitled to the opportunity to fulfil his potential, it is the opportunity and not the outcome that is his right. I would be failing to respect his personal integrity and autonomy if I did not afford him this chance. I hope BL and EL will embrace it.

[46]In what is, if may say so, an impeccable presentation of the Applicants’ case Mr John McKendrick (Counsel) identifies three potential options to give effect to my conclusions as to what is in ML’s best interest: i) Firstly, to conclude that ML is ineligible to be deprived of his liberty under the Mental Capacity Act 2005 (the MCA), but nonetheless to declare that it is lawful and in his best interest to reside at Bestwood Hospital and to receive treatment there (without authorising the deprivation of liberty) and to leave the question of authorisation of deprivation of liberty to sections 2 and 3 of the Mental Health Act 1983 (The ‘MHA’); ii) Secondly, to make orders and declarations under the MCA, to declare that it is in ML’s best interest to reside at and receive care from Bestwood Hosptial, to authorise the deprivation of his liberty and any further treatment, seclusion and restraint under the aegis of that Act; iii) Thirdly, to invoke the inherent jurisdiction of the High Court to authorise the deprivation of ML’s liberty pursuant to the Court’s conclusion that he should reside and receive care at Bestwood Hospital.

[47]Mr Parishil Patel and Ms Amy Street, appearing on behalf of the Official Solicitor agreed that these are the options at least theoretically available. Both Mr McKendrick and Mr Patel use these three options as the framework for their submissions and I propose to adopt that approach in the course of this judgment.

[48]Section 1 of the 1983 Act clarifies that its provisions may apply to those who have a ‘mental disorder’ and defines ‘mental disorder’ as ‘any disorder or disability of the mind’. Autism is included within the category of mental disorder as is apparent from the Mental Health Act 1983 Code of Practice (the “1983 COP”) at paragraphs 3.13 to 3.17. There is also particular reference to autism in Chapter 34. It is clear, to my mind, that such is the extent of ML’s difficulties stemming from his autism that he falls within the category of Learning Disability defined pursuant to section 1 (subsection 4). Here all agree that ML’s autism in and of itself is a mental disorder encompassed by Section 1 of the 1983 Act.

[49]Potentially there are 3 separate regimes: i) The Mental Health Act 1983; ii) The Mental Capacity Act 2005; iii) The Inherent Jurisdiction.

[50]The Applicant and the Official Solicitor diverge as to which is the correct framework. The Applicant submits that the Mental Capacity Act 2005 provides the Court with jurisdiction to authorise the deprivation of ML’s liberty and should be used for that purpose and to make the further orders and declarations necessary in these proceedings. The Official Solicitor disagrees, he contends that the Mental Health Act is the only regime by which ML can be detained at Bestwood Hospital. Any deprivation of ML’s liberty can not, the argument runs, be authorised under the Mental Capacity Act because ML is ‘within the scope of the MHA (within the meaning of paragraph 12 to schedule 1A and the conditions in paragraph 5 to Schedule 1A are met). I will analyse these below but I record here that the Applicants submit that if they are wrong as to the scope and reach of the MCA, a lacunae emerges which can be accommodated by use of the inherent jurisdictional powers of the High Court to authorise ML’s treatment and deprivation of liberty. That, counters the Official Solicitor, would be to subvert the will of Parliament as expressed in the MHA and absent a true lacunae would be an unlawful use of the inherent jurisdictional powers.

[51]BL aligns himself entirely with the Official Solicitor’s interpretation of the law. He does so not in a passive or uninformed way. On the contrary, BL is alert to the significant advantages and disadvantages of the two legal frameworks. From his own perspective he is acutely aware that his wife has historically been successful in discharging ML from detention under the MHA. Indeed in the light of my findings he and his wife will recognise that I have, by implication, endorsed the tribunal’s decision given my findings relating to ML’s detention whilst at the Vale Hospital. I have already stated that BL and EL are profoundly resistant to the Bestwood option. Their resistance is almost irrational because, as BL readily accepts, it is rooted in fear. The parents fear is that ML may in consequence of this decision be condemned to permanent institutional care if Bestwood is ultimately unsuccessful in its objectives. It has been emphasised that if the treatment at Bestwood is to be effective it would take between 18 months and 24 months perhaps even longer. It is simply not possible to be more precise about timescales. Undoubtedly there will be difficult and challenging times. It seems to be distinctly possible that at some point within this contemplated period there will be incidents which are so distressing to BL and EL and indeed to ML himself that BL and EL will feel compelled to try to derail the assessment, albeit as I emphasise through the best of intentions. In my judgement BL aligns himself with the Official Solicitor’s arguments because he believes he will have greater prospect of halting the treatment if he perceives that to be necessary, by application to the Mental Health Tribunal who will not have had the advantage of hearing everything that I have heard in this case. I do not intend to be in any way discourteous to BL by being so blunt. It is entirely natural that he should build what perceived advantages he can into the options available to him for the future given his fundamental resistance to the Applicants’ plan.

[52]Conversely, it is precisely because I have heard so much evidence on such difficult and sensitive issues that the Applicants are keen that I, as a Judge of the Court of Protection, retain conduct of the case. The only basis upon which I could achieve this they recognise is to make orders and declarations under the 2005 Act both in relation to ‘best interest’ and in authorising the deprivation of liberty and any further treatment, seclusion or restraint. The importance of judicial continuity as a protective measure in and of itself has been emphasised repeatedly in relation to vulnerable children in proceedings in the Family Division (see, for example, Re D (a child) sub nom F v M

[2004] 1 FLR 226

; [2004] Fam Law 490 in which Munby J, as he then was, emphasised not only the importance of judicial continuity but also consistency of judicial approach in shaping the strategy of a case.) These principles have distinct resonance in relation to incapacitous adults. I confess that I was very much attracted to this course and I applaud the efforts Mr McKendrick has made in seeking to analyse the law in such a way as to facilitate such an outcome. Ultimately however, I have come, somewhat reluctantly, to the conclusion that to follow the course the Applicants’ contend for would strain both the language and the underpinning philosophy in section 16 A (1) of the Mental Capacity Act, clunking and inelegant though the wording of that section is.

[53]It is perhaps also important to record that until the first day of this hearing the only regime advanced by the Applicants was that of the Mental Health Act 1983. I agree with Mr Patel on behalf of the Official Solicitor that properly analysed the Mental Health Act is the only framework in which ML can properly be detained at Bestwood Hospital. Section 16 A Mental Capacity Act 2005 provides:(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.

(2) If– (a) a welfare order includes provision which authorises a person to be deprived of his liberty, and (b) that person becomes ineligible to be deprived of liberty by this Act, the provision ceases to have effect for as long as the person remains ineligible.

(3) Nothing in subsection (2) affects the power of the court under section 16 (7) to vary or discharge the welfare order.

(4) For the purposes of this section– (a) Schedule 1A applies for determining whether or not P is ineligible to be deprived of liberty by this Act; (b) “welfare order” means an order under section 16(2)(a).

[54]‘Ineligibility’ is determined pursuant to Schedule 1A of the 2005 Act. Paragraph 1 of Schedule 1A makes clear it applies to section 16. Paragraph 2 determines ineligibility thus: A person (“P”) is ineligible to be deprived of liberty by this Act (“ineligible”) if– (a) P falls within one of the cases set out in the second column of the following table, and (b) the corresponding entry in the third column of the table — or the provision, or one of the provisions, referred to in that entry — provides that he is ineligible. Status of P Determination of ineligibility Case A P is– P is ineligible. (a) subject to the hospital treatment regime, and (b) detained in a hospital under that regime. Case B P is– See paragraphs 3 and 4. (a) subject to the hospital treatment regime, but (b) not detained in a hospital under that regime. Case C P is subject to the community treatment regime. See paragraphs 3 and 4. Case D P is subject to the guardianship regime. See paragraphs 3 and 5. Case E P is– See paragraph 5. (a) within the scope of the Mental Health Act, but (b) not subject to any of the mental health regimes.

[55]The question therefore has to be asked: is ML ‘ineligible’ under schedule 1 A para 2 (a). The task is to determine whether ML is caught by one of the ‘cases’ in the second column of the table in paragraph 2. All agree that the only case of significance or potential significance is case E which provides that P is—(a) within the scope of the Mental Health Act, but

(b) not subject to any of the mental health regimes.

[56]It is common ground that ML is not subject to any of the mental health regimes, as defined in paragraph 7 -10. Does he fall however ‘within the scope of the Mental Health Act’?

[57]Charles J provides a pragmatic suggestion as to how best to answer this question in J v The Foundation Trust

[2010] Fam 70

at para 80. “So, in my judgment the construction urged by the Secretary of State is the correct one, namely that the decision maker should approach paragraph 12 (1) (a) and (b) by asking himself whether in his view the criteria set by, or the grounds in, section 2 or section 3 of the Mental Health Act 1983 are met (and if an application was made under them a hospital would detain P)”.

[58]It is convenient here to set out section 2 and 3 of the Mental Health Act which provide as follows ‘Admission for assessment.E+W(1) A patient may be admitted to a hospital and detained there for the period allowed by subsection (4) below in pursuance of an application (in this Act referred to as “an application for admission for assessment”) made in accordance with subsections (2) and (3) below.

(2) An application for admission for assessment may be made in respect of a patient on the grounds that— (a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and (b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

(3) An application for admission for assessment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with.

(4) Subject to the provisions of section 29(4) below, a patient admitted to hospital in pursuance of an application for admission for assessment may be detained for a period not exceeding 28 days beginning with the day on which he is admitted, but shall not be detained after the expiration of that period unless before it has expired he has become liable to be detained by virtue of a subsequent application, order or direction under the following provisions of this Act. Admission for treatment.E+W (1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as “an application for admission for treatment”) made in accordance with this section. (2) An application for admission for treatment may be made in respect of a patient on the grounds that— (a) he is suffering from [mental disorder] of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and (b) […] (c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section[and (d) appropriate medical treatment is available for him.] (3) An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include— (a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and [ (d)] of that subsection; and (b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate. [ (4) In this Act, references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case.]

[59]Bestwood Hospital had requested an admission initially under section 2. To my mind the evidence that I have heard plainly indicates that what is contemplated is an extensive course of treatment rather than an assessment. As I have said the projection of 18 -24 months has been given. Accordingly an application pursuant to section 3 seems both apposite and honest. Mr McKendrick in his carefully analysed written submission charts the course of that process and highlights its potential disadvantages. Nonetheless he makes the following concession: “the applicant submits that it is probable that ML: a) has a mental disorder of a degree which makes it appropriate for him to receive medical treatment in hospital (subsection 3 (2) (a) ); b) it is necessary for the health and safety of the patient and for the protection of others that he receives such treatment and it cannot be provided unless he is detained (this must be read however as subject to such detention being unnecessary because it is available under the Mental Capacity Act 2005 or the inherent jurisdiction); c) appropriate medical treatment is available for him at Bestwood.

[60]Pursuant to section 145 (1) of the 1983 Act ‘medical treatment’ is defined as including ‘nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care’. Section 145 (4) states; “Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment a purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms manifestation.”

[61]These provisions require the consultation and cooperation of ML’s nearest relative. Here that is EL. ‘Nearest relative’ is defined for the purposes of the 1983 Act pursuant to section 26 (3) “In this Part of this Act, subject to the provisions of this section and to the following provisions of this Part of this Act, the “nearest relative” means the person first described in subsection (1) above who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the half-blood and the elder or eldest of two or more relatives described in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex.”

[62]It is necessary for the nearest relative to be consulted if reasonably practicable and consultation would not avoid delay, before a patient can be sectioned pursuant to section 3 of the 1983 Act. A nearest relative must also be informed and advised of their right to object to a subsection 2 assessment as provided in section 11.

[63]It is the case that an approved mental help professional (AMHP) is entitled to make an application for assessment under section 2 of the 1983 Act even if the nearest relative objects but that professional must then inform the nearest relative of their power to object to the detention (found in section 23 (2) (a) of the 1983 Act). If an application is made in pursuance of section 29 subsection 3 (b) or (c) of the 1983 Act to displace the nearest relative then a detention must be made pursuant to section 2 of the 1983 Act continuing in force until the application to displace has been resolved ( see subsection 29 (4) 1983 Act).

[64]Mr McKendrick draws my attention to the 1983 Act Code of Practice which he points out make perfectly clear at paragraph 4.56 to 4.65 the importance for consultation with the nearest relative. If the nearest relative objects to an application under section 3 of the 1983 Act, that is to say objecting to ‘treatment’ not the ‘assessment’ envisaged by section 2 then the application cannot be made. Consideration then has to given to displacing the nearest relative pursuant to section 29 of the 1983 Act which states 29 Appointment by court of acting nearest relative.E+W(1) The county court may, upon application made in accordance with the provisions of this section in respect of a patient, by order direct that the functions of the nearest relative of the patient under this Part of this Act and sections 66 and 69 below shall, during the continuance in force of the order, be exercisable by [the person specified in the order] . [ (1A)If the court decides to make an order on an application under subsection (1) above, the following rules have effect for the purposes of specifying a person in the order— (a)if a person is nominated in the application to act as the patient's nearest relative and that person is, in the opinion of the court, a suitable person to act as such and is willing to do so, the court shall specify that person (or, if there are two or more such persons, such one of them as the court thinks fit); (b)otherwise, the court shall specify such person as is, in its opinion, a suitable person to act as the patient's nearest relative and is willing to do so.]

(2) An order under this section may be made on the application of— [ (za)the patient;] (a) any relative of the patient; (b) any other person with whom the patient is residing (or, if the patient is then an in-patient in a hospital, was last residing before he was admitted); or (c) an [approved mental health professional] ; [...]

(3) An application for an order under this section may be made upon any of the following grounds, that is to say— (a) that the patient has no nearest relative within the meaning of this Act, or that it is not reasonably practicable to ascertain whether he has such a relative, or who that relative is; (b) that the nearest relative of the patient is incapable of acting as such by reason of mental disorder or other illness; (c) that the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment or a guardianship application in respect of the patient;[...] (d) that the nearest relative of the patient has exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient [...] under this Part of this Act, or is likely to do so [; or] (e)that the nearest relative of the patient is otherwise not a suitable person to act as such.]

(4) If, immediately before the expiration of the period for which a patient is liable to be detained by virtue of an application for admission for assessment, an application under this section, which is an application made on the ground specified in subsection (3)(c) or (d) above, is pending in respect of the patient, that period shall be extended— (a) in any case, until the application under this section has been finally disposed of; and (b) if an order is made in pursuance of the application under this section, for a further period of seven days; and for the purposes of this subsection an application under this section shall be deemed to have been finally disposed of at the expiration of the time allowed for appealing from the decision of the court or, if notice of appeal has been given within that time, when the appeal has been heard or withdrawn, and “pending” shall be construed accordingly.

(5) An order made on the ground specified in subsection [ (3)(a), (b) or (e)] above may specify a period for which it is to continue in force unless previously discharged under section 30 below.

(6) While an order made under this section is in force, the provisions of this Part of this Act (other than this section and section 30 below) and sections 66, 69, 132(4) and 133 below shall apply in relation to the patient as if for any reference to the nearest relative of the patient there were substituted a reference to the person having the functions of that relative and (without prejudice to section 30 below) shall so apply notwithstanding that the person who was the patient’s nearest relative when the order was made is no longer his nearest relative; but this subsection shall not apply to section 66 below in the case mentioned in paragraph (h) of subsection (1) of that section.

[65]The test for displacement of the nearest relative has been considered by the Court of Appeal in the case of Lewis v Gibson

[2005] EWCA Civ 587

at para 38 per Thorpe LJ “Para 38. In response to the Official Solicitor’s invitation, I would hold that, in order to succeed in an application under section 29, the applicant must demonstrate that the statutory criteria are met out both at the date of the application and at the date of the hearing. The Judge held that the language of the section indicated that the relevant date is the date of application. In that I think that he was right. The language of section 29 demonstrates jurisdiction arises upon an application being made in accordance with the provision of the sections. The identity of the applicant is set by subsection 2 on the grounds by subsection 3. The grounds so defined are described in the present tense as at the date of the application (grounds|) (a), (b) and (c) or, in relation to ground (d), the past and future tense are reference to the date of application. The Judge rightly looked to the decision Re M 1994 2AC 424 as a relevant analogy. The argument there approved applies even more strongly to section 29 which directly links the grounds to the making of the application whereas section 31 of the Children Act 1989 links the grounds to the making of the order. However the grounds in section 29 (3) not only specify the basis of the courts jurisdiction but also its power to make an order. In consequence I am of the opinion that the Judge must also be satisfied that the grounds exist at the date of the final hearing.”

[66]Mr McKendrick points to what he suggests is a potential minefield if ML is admitted and reacts badly to his treatment in an aggressive way. That seems to me not merely speculative but likely. Such a situation might trigger, he contemplates, an application by the ‘nearest relative’, already fundamentally resistant to the regime, to apply to discharge ML from his section under the Mental Health Act. Mr McKendrick then postulates a situation in which the tribunal come to consider episodes in isolation and without the history that this Court has to put them in context. From one perspective, albeit not one I agree with, this could be said to have happened in the past. The worst possible situation for ML I have been told by all involved is for the Bestwood plan to breakdown. That would have catastrophic consequences for ML’s welfare.

[67]It is this point that has caused me greatest concern and has led me to strain to see whether the necessary restriction on ML’s liberties can be regulated by the 2005 Act.

[68]Mr Patel confronts these concerns head on but contends that they should not be overstated: a) “Whilst there is a possibility that a court may not conclude that ML’s nearest relative is acting unreasonably in objecting to a section 3 application or that she is not likely to exercise her power of discharge without due regard to ML’s welfare, it is, in the Official Solicitor’s submission remote in circumstances where: i) The application is made very shortly after this court having heard extensive evidence and having considered the nearest relatives considers objections to ML moving to Bestwood Hospital and receiving treatment there will have concluded that it is nonetheless in ML’s best interest; ii) The application is made before his Lordship and before ML is ready to transfer to Bestwood Hospital b) It is likely that any exercise of the power of discharge by the nearest relative under section 23 MHA will be barred by an order by ML’s RC under section 25; c) In the event that the FTT discharges ML before the proposed treatment has been completed, ML can be kept at Bestwood Hospital authorising his deprivation of liberty under section 4 B of the MCA pending court consideration; d) As so far as the FTT decision is unlawful it can be quashed in judicial review proceedings and a stay of the decision preventing any discharge from the MHA.”

[69]Whilst that is an impressive analysis of the available options it does not seem to me to confront my major concern namely that at some point in a 2 year period an application may be made to discharge ML from his section in which the Mental Health Tribunal is not as well placed as I am to evaluate ML’s best interests. I can, as Mr Patel has alluded to, reserve to myself any application to displace the nearest relative by constituting myself as a Judge of the County Court but there is no equivalent opportunity for me to substitute myself as the Chair of the Mental Health Tribunal. I do however consider that some of these concerns can be addressed in the proposals that I set out below. It is suggested that the second limb of the test under paragraph 12 could not be met because ML could ‘not be detained in hospital because in relation to an application for detention under section 3 it is more likely than not his nearest relative would object.’ As I have said that is not an inference I feel able to draw at this stage. My real concern is an application to discharge the section at some stage in the treatment process. That would be particularly damaging because, as all the professionals have agreed, disruption of the therapeutic programme before it was completed could have catastrophic consequences for ML. Most likely of which being that he would have a very poor prospect of returning to community living at all.

[70]The Official Solicitor doesn’t accept the Applicants’ construction of paragraph 12 for what are, as I see it three essential reasons. i) Paragraph 12 to schedule 1 A has to be construed, it is submitted, in the light of its purpose which it is said was self evidently to give effect to the Bournewood gap and not to allow decision makers to ‘pick and choose between the two statutory regimes as they think fit having regard to general considerations (e.g. the preservation or promotion of a therapeutic relationship) that they consider render one regime preferable to the other’. Support for that is undoubtedly found in the judgment of Charles J in GJ v The Foundation Trust & Others

[2009] EWHC 2972 (Fam)

para 45:

“In my judgement, the deeming provisions alone, and together with that view on assessments are strong pointers in favour of the conclusions that a) the MHA 1983 is to have primacy when it applies, and b the medical practitioners referred to in SS in 2 and 3 of the MHA 1983 cannot pick and choose between the two statutory regimes as they think fit having regard to general considerations (e.g. the preservation or promotion of a therapeutic relationship with P they consider one regime preferable to the other para 46. this is because they point to the conclusion that when the MHA 1983 is being considered by those who could make an application, founded on the relevant recommendations, under section 2 or 3 thereof they, like the decision maker under the MCA should assume that A the treatment referred to in section 3 (2) (see MHA 1983 cannot be provided under the MCA, and b) the assessments referred to in section 2 cannot be provided under the Mental Capacity Act in circumstances that amount to a deprivation of liberty. c) Also the assumption that the relevant recommendations will be made by the relevant medical protection practitioners points to the conclusion that Parliament intended that MHA 1983 to be used when, as provided by paragraph 12 (3) and (4) of schedule 1A to the MCA the grounds in section 2 (2) or section 3 (2) MHA are met in the relevant case”

[71]The Official Solicitor contends that the construction advanced by the applicants will be to enlarge the jurisdiction of the Court of Protection to an impermissible degree. They highlight the observations of Baroness Hale in Aintree University Hospitals NHS Foundation Trust v James

[2003] 3 WLR 1299

at paragraph 18 in a context of medical treatment:

“This Act is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further. On an application under this Act therefore, the court has no greater powers than the patient would have if he were of full capacity.”

[72]Thus says the Official Solicitor if ML had capacity to make the relevant decisions and his nearest relative objected to a Section 3 application or discharged him using her powers, he could not be compelled to receive treatment or to be detained at Bestwood Hospital.

[73]Thirdly, it is submitted that the interpretation advanced would rob Case E under Schedule 1A of its efficacy and would involve the Court of Protection interfering in the decision making process under the MHA, over which it has no jurisdiction.

[74]Though these are expressed as individual points, they are all, in my judgment, aspects of Charles J’s central analysis that where the MHA applies, it should have primacy.

[75]In my judgment, it can make no difference at all to ML whether his detention is authorised under the MCA, the MHA or the inherent jurisdiction, each contain rigorous safeguards to review his detention or in the case of the inherent jurisdiction can easily be adapted to do so.

[76]Having considered the case law and the statutory provision it is clear that the magnetic north when contemplating the deprivation of liberty of those who fall within Case E is and is likely to remain the Mental Health Act.

[77]My attention has been drawn to DN v Northumberland and Wear NHS Foundation Trust

[2011] UKUT 327

. In DN the Upper Tribunal noted that when Charles J described the 1983 Act having ‘primacy’ over the 2005 Act that applied only for the specific purposes of the decision in GJ. This was broadly the position of the Department of Health, as set out in a letter sent to the Upper Tribunal, and recorded at paragraph 18 of the judgment, which noted it was only in Case E that Charles J described the 1983 Act as having primacy of the 2005 Act because (quoting the DOH’s letter):- “The Government's policy intention was that people who lack capacity to consent to being admitted to hospital, but who are clearly objecting to it, should generally be treated like people who have capacity and are refusing to consent to mental health treatment. If it is considered necessary to detain them in hospital, and they would have been detained under the MHA if they had the capacity to refuse treatment, then as a matter of policy it was thought right that the MHA should be used in preference to the MCA . It was specifically in the context of the interpretation of Case E that Mr Justice Charles talked in J about the MHA having “primacy”. Outside that context, the Department does not understand him to have been making a more general statement about the relationship between the two Acts. Indeed, as set out above, the Department does not think it would actually be possible to say, in general, which has primacy over the other.”

[78]In AM v South London and Maudsley NHS Trust [2013] UKUT (AAC) Charles J refined his more generalised observations in GJ:

“I agree with the point made by the SSH to Upper Tribunal Judge Jacobs that my references to the MHA having primacy in J v Foundation Trust were made in and should be confined to the application of Case E in that case, and I add that even in that confined context they need some qualification to expand on the point I made that the two statutory schemes are not always mutually exclusive and so to acknowledge the point set out above that in defined circumstances Parliament has created alternatives that are factors for the relevant decision maker to take into account. In this case, there was general agreement that paragraph 59 of my judgment in J v Foundation Trust (and so the same passage in paragraph 45(2) thereof) are correct. To my mind, those paragraphs accord with my reasoning and conclusion in this case as they reflect the points that: i) each decision maker has to apply his or her jurisdiction and powers and thus the provisions of the statute governing that decision making process (the “Determinative Statutory Test”), and ii) as and when the existence and availability of an alternative under a different statutory scheme is relevant to the application of the Determinative Statutory Test, that factor and so the impact of that alternative must be assessed by the decision maker.”

[79]I am not persuaded by the suggestion, implicit in the DOH letter, that detention under M.C.A for the incapacitous is in someway discriminatory (if in equivalent circumstances the capacitous would be detained under the M.H.A) given that both regimes afford equally rigorous structures and either one might potentially be suitable on the facts. Nor can I easily contemplate the factual situation that would likely test the hypothesis.

[80]I am however quite sure that there is a pressing need for clarity and predictability at the interfaceof these two complex regimes, Charles J’s interpretation assists in that. Most importantly however he makes the point that the rationale of the legislation drives one to the M.H.A where the M.H.A 1983 is being considered by those who could make an application, predicated on the relevant recommendations under S2 or S3. They like the decision maker under the M.C.A should assume that the treatment referred to in S3 (2) cannot be provided under the M.C.A.

[81]In the closing paragraph to his additional submission Mr Patel states:

“It would, in the Official Solicitor’s submission, be extremely regrettable if, in the event that the court concludes that it is in ML’s best interest to move to Bestwood Hospital and reside and receive treatment there, he does not undergo or complete such treatment because his nearest relative objects to a Section 3 application and/or she or the FTT discharge him. However the risk that this may occur cannot provide the court with the jurisdiction under the MCA or the inherent jurisdiction to achieve that objective.”

[82]I have accepted the analysis in the Official Solicitor’s submissions. However, I emphasise that to describe such an outcome as “extremely regrettable” is in my judgment a very considerable understatement. It would be catastrophic to ML and wholly detrimental to his welfare interests.

[83]For this reason I propose to take an unusual course. As I have foreshadowed above, any application to displace the nearest relative is to be reserved to me (upon the relevant authorisation to sit as a County Court Judge). I also propose to release this judgment to the President of the First Tier Tribunal with an invitation to him to allocate a judge of the First Tier to hear any applications in this case, to ensure judicial continuity. I will provide that a copy of this judgment follows this case.

[84]By way of a postscript I would add that I am delivering this judgment in early May having heard evidence and submissions in late February and early March. To accommodate the hearing of this case it was necessary to sit long hours and to overrun into the following case. No time was allocated to read the extensive papers in advance. Two volumes of authorities were presented in closing submission, and no time at all had been allocated to reflect on the submissions to write the judgment or to reflect on the submissions.

[85]The consequence is that this judgment has been delayed to a degree that I consider to be quite unacceptable for ML. Those who practice within the Court of Protection must understand that it is part of the responsibility of the lawyers to ensure that there are realistic time estimates given to the court. The instinct to underestimate the timescale of a case in order that it might be heard more expeditiously is misconceived as this case certainly has proved. I make these observations because this case is far from an isolated example. That said I have received invaluable assistance from all Counsel to whom I am extremely grateful.

Cited in 1 later judgment

Manchester University Hospitals NHS Foundation Trust v JS & Anor 2023