Case No: CoP11694156
IN THE HIGH COURT OF JUSTICE
Court of Protection
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/07/2009

Before:

MR. JUSTICE RODERIC WOOD
- - - - - - - - - - - - - - - - - - - - -
Between:

	W Primary Care Trust	Applicant	
	- and -		
	TB
(An adult by her Litigation Friend the Official Solicitor)
-and-
V
-and-
S Metropolitan Borough Council
-and-
C & W Partnership NHS Foundation Trust
-and-
W Metropolitan Borough Council	1st Respondent

2nd Respondent

3rd Respondent

4th Respondent

5th Respondent	
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Miss Bridget Dolan for the Applicant
Mr. Alex Ruck Keene for The Official Solicitor
The 2nd, 3rd, 4th and 5th Respondents were unrepresented

Hearing date: 13th July 2009
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Judgment

MR. JUSTICE RODERIC WOOD

This judgment is being handed down in private on 17th July 2009.  It consists of 13 pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported.

 The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Mr. Justice Roderic Wood:
The Proceedings: 

1.	These proceedings are brought in the Court of Protection.  The applicant is the W Primary Care Trust (“The PCT” or “The Applicant”).  The respondents are respectively TB (by her Litigation Friend the Official Solicitor) (“TB”); “V” (the establishment currently providing her with care and treatment on a day-to-day basis; S Metropolitan Borough Council, the local authority in whose area is to be found the first of the care homes at which TB resided, and thus the “Supervisory Authority” responsible for authorising the detention of TB under the “Deprivation of Liberty Safeguards” (provided for by statute – see below); C and W Partnership NHS Foundation Trust, which supplies psychiatric care to TB and also provides services to her under the aegis of the Community Mental Health Team (the “CMHT”); and the W Metropolitan Borough Council, which provides social and welfare care for TB, and which also employs Mr. H, the care co-ordinator for TB.  The proceedings were commenced on 20th March 2009 in circumstances which will become clear in due course.

TB:
2.	She is now 41, having been born on 17th June 1968.  She suffers from an acquired brain injury with an associated psychiatric disorder (sometimes referred to as a “chronic delusional disorder”).
3.	She was in fact born suffering from a very rare developmental bone disorder (tarso epiphyseal dyaplasia).  In the course of an operation for that condition carried out when she was 9 years old she suffered a respiratory arrest, and subsequently had a seizure; it is believed that the brain injury referred to above arose from hypoxia occurring during that event.  The degenerative nature of the brain injury has been evidenced in scans (a CT scan being carried out in 1999) and further scans in 2007 which show a progression from atrophic changes in the frontal lobes to significant frontal brain atrophy in more recent years.
4.	She has been complaining of sensations in her head, neck and stomach since at least 1995; is constantly pre-occupied with those sensations; and believes, for example, that blood is flowing from her brain into her stomach and down her left leg, a situation which she reports as finding (not surprisingly) both painful and distressing.  She has a fixed belief that her symptoms have a physical cause, and thus part of her belief system is based on a requirement for a physical medical solution to be offered to her.  This belief reflects itself in her social behaviour, she frequently calling the 999 emergency services, taxi firms, her general practitioner, and the CMHT (to name but a few) seeking medical help for the “bleeding”.  Again, not surprisingly, she is anxious and upset when such help is not offered.
5.	She has, in the past, been provided with a range of psychiatric treatments (including the provision of anti-depressant and anti-psychotic medication) for her condition both as a psychiatric in-patient and in the community.  All have more or less failed.  Her parents died respectively in 2001 and 2003, and her psychiatric state has deteriorated since that time.  She has until comparatively recently been cared for in the home of one of her brothers (JB) but a more recent deterioration in her circumstances and behaviour in the New Year have led to an admission to one of the homes run by V, although she has more recently been transferred to a new facility also run by them in Liverpool.
6.	It is the view of the CMHT that, pharmacological and other types of intervention not having produced any lasting beneficial effects, the only way likely to ameliorate her fixed delusional beliefs is by the provision of a “complex package of intensive neuro-psychological and neuro-behavioural therapies in a residential unit”.  I have seen a variety of reports from a variety of experts (some specifically instructed by the Official Solicitor for the purposes of this litigation) which set out her circumstances in the recent past.  At the time of the hearing before Hogg J. on 22nd April 2009 (see below) there was unanimity of professional evidence to the effect that it was in TB’s best interests to be detained at V for at least a number of months.  However, more recent expert evidence has brought to light two key areas of disagreement.  They are summarised in the Official Solicitor’s position statement for this hearing and may be set out as follows:
i)	There appears to be a real issue of whether or not it is in TB’s best interests to undergo a neuro-psychiatric assessment prior to undergoing any neuro-behavioural treatment at V.  That is the course recommended by Dr. Bradbury, the independent psychiatrist instructed by the Official Solicitor, but it is a view not currently shared by either Professor Thompson (the independent social work expert) nor by the professionals employed by the CMHT who have overall responsibility for TB’s care, or others.
ii)	There is further controversy over whether V has the necessary expertise to provide the treatment programme currently identified as necessary for TB by the experts (other than Dr. Bradbury).  In other words, has V the expertise in terms of its staff to provide a clinical neuro-psychological programme of sufficient sophistication?
7.	The Official Solicitor has accordingly raised, entirely properly, whether or not V is the appropriate placement for TB for any period other than the very short-term.  It is proposed by the Official Solicitor that there be a further meeting of clinicians to discuss the issues thrown up so recently, and one is scheduled to take place on or about 24th July 2009, to be chaired by the solicitor acting as agent for the Official Solicitor.  I have accordingly identified a date (19th August 2009) when any issues arising as a matter of urgency can be brought back to the court for further consideration.  I have reserved it to myself.  I have, however, made provision in the order arising from this hearing for the parties to vacate that date by consent if, on analysis, it proves to be unnecessary.  I have, however, also ordered that there be a further substantive hearing with a time-estimate of one day after 1st October 2009.  The Court at that hearing should be in a position to consider further evidence, not least a report from a neuro-psychologist who is to be instructed by the Official Solicitor to provide a report as to appropriate treatment options for TB, the options to include specialised psychiatric, psychological and/or behavioural treatment.  The current array of experts does not include that particular expertise, but I regard it as essential that that material should be made available.
Declarations Sought at This Hearing:
8.	The PCT and the Official Solicitor seek a declaration in the following terms:
“The first respondent is eligible to be deprived of her liberty at V pursuant to an authority under section 4A of the Mental Capacity act 2005”.
9.	This authority is sought because TB has expressed clearly that she does not wish to be at V, but wishes to be admitted to an NHS hospital for physical examinations to be carried out.  If she is to be detained at V in contravention of these clearly expressed wishes, and there is no lawful authority to detain her, her rights under Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, now part of domestic legislation as Schedule 1 to the Human Rights Act 1998, would unquestionably be infringed.
10.	Going to the heart of the matter, I am asked whether or not, assuming residential treatment of her at the specialist rehabilitation unit V is in her best interests as defined by the provisions of the Mental Capacity Act 2005 (“the 2005 Act”) as amended by the Mental Health Act 2007 (“the 2007 Act”), depriving her of her liberty in order to provide this particular residential treatment can be authorised under section 16 of the 2005 Act or under schedule 1A of that Act (the “Deprivation of Liberty Safeguards” – the “DOLS” provisions).
11.	I am told by counsel that there is no reported decision on the issues which arise in this case, and I am requested to permit reporting of this decision which I do.
12.	I should record before going any further that the task set for me was made immeasurably easier by the provision of an agreed note of the written submissions on behalf of the PCT and the Official Solicitor, that note setting out their joint view of the law on this topic.  Those written submissions were initially drafted by counsel for the PCT (Ms. Bridget Dolan) and were the subject, on his own account, of only very modest contribution by Mr. Ruck Keene, counsel for the Official Solicitor.  If I may respectfully say so Ms. Dolan’s document was a model of succinct lucidity.  Having given careful consideration to the totality of that material as well as the reports provided for me from a number of experts, I agree with the analysis set out in that joint note, appearing at paragraphs 22 to 37, which I shall attempt to summarise in the paragraphs 27 to 40 below.

Previous Declarations:
13.	When the matter came before Hogg J. on 22nd April 2009, she approved the joint invitation of the PCT and the Official Solicitor to make a number of interim declarations.  They are as follows:
1.	By reason of her acquired brain injury, TB does not have capacity to decide upon:
(a)	where she should reside; and
(b)	whether to undergo psychological, psychiatric and behavioural treatment.
2.  The first respondent is not ineligible to be deprived of her liberty   pursuant to an authorisation under the Mental Capacity Act 2005.
3.  Notwithstanding TB’s inability to consent, it shall be lawful and in her best interests for her treating clinicians and care workers including the Applicant’s and Second Respondent’s employees, servants or agents to:
(a)	Admit TB to units provided by V at either S House, or T Avenue, for the purpose of caring for her welfare and providing her with psychological, behavioural and psychiatric treatment;
(b)	Provide her with psychological, behavioural and psychiatric treatment in accordance with the care plan(s) provided by V;
(c)	Use such reasonable restraint as may be necessary in conveying TB to and preventing TB from leaving the V unit, including measures that may amount to the deprivation of her liberty, for the purpose of caring for her welfare and providing her with psychological, behavioural and psychiatric treatment.”
Further directions were given, some of which relate to the trial of the issue I am considering.  I need not set them out in elaborate detail.

Specialised Treatment Options:
14.	The CMHT has identified three specialist treatment centres which, it is considered, might provide appropriate treatment for TB.  One is in Liverpool, one in London and one in York.  The one in York is designated an “independent hospital” for the purposes of section 34 of the 2005 Act, being so registered pursuant to the provisions of section 2 of the Care Standards Act 2000.  I shall return to the significance of this designation in due course.
15.	The first such establishment (V in Liverpool) does not accept patients under the Mental Health Act 1983 (“MHA 1983”).  For the significance of this see below.

“Best Interests”:
16.	It would be possible, but in my judgment unnecessary, to set out extensive passages of the background material related to consideration of TB’s best interests.
17.	It is sufficient in my judgment to summarise the position thus:  Dr. Munro (Consultant Psychiatrist) indicates, and I accept, that it would not be helpful to detain TB under the MHA 1983 “as the specialist treatment [required] would not be available in main-stream psychiatric services”.  She goes on to say that such a placement may be detrimental to her welfare in any event as it would increase her level of distress.
18.	In coming to the above conclusion Dr. Munro had taken account of TB’s need to receive treatment as a matter of great urgency because of the risks she represented to herself and others.  She was not eating properly; losing significant amounts of weight; not caring for herself; there was a risk of suicide there having been several previous attempts; she displayed aggressive behaviour; and there was a further risk of exploitation of her by others given her general behaviour towards strangers.  This is not a complete list of the problems but gives a flavour of it.  Given the above she was quite clear that specialist treatment in the community or indeed in her own home had to be ruled out.
19.	Why V?  Apart from offering what Dr. Munro considers to be an appropriate regime of care for TB, it has the enormous advantage of being in the Liverpool area, and thus within reasonable proximity to the homes of her brothers who are considered to be an essential part of her treatment and rehabilitation given the close historical association she has with them, and in more recent years in particular with her brother JB, with whom she has been living until about March 2009.  All who have considered this relationship between TB and her brothers have concluded that their continued involvement in her life on a regular and frequent basis is “critical in terms of implementing the proposed care plan as part of a treatment plan”.  Happily, her brothers share that view.  It follows, by virtue of each of those brothers’ domestic commitments that a medium to long-term placement in either York or London would not be appropriate, significantly reducing, if not extinguishing, their practical ability to take such a part.
20.	Furthermore, V has been perceived by a number of the experts to provide appropriate residential care and opportunity for treatment, and furthermore represents continuity of such, TB having been placed there earlier this year.  See paragraph 6 above, however, for the recent questioning of this.
21.	Nevertheless, as I recorded earlier, TB has frequently expressed a wish to leave V and seek medical treatment for the “bleeding” to which I have also referred.  So far, by the deployment of distraction techniques and verbal dissuasion, the staff have managed to persuade her to remain, and it is my understanding that no force or physical restraint has to date been used.  That these techniques have succeeded should not necessarily be regarded as an optimistic sign that they will continue to be efficacious.  As one of the care planners at V has said in the past:
“As we can in no way detain her if she really wishes to leave, there is a limit as to how far we can go with persuasion and distraction”.
22.	There is little discussion in the papers of how any authorised physical restraint upon her liberties will be exercised, although sufficient for me to reach a determination for today’s purposes.  The methods will include, in the event that the current techniques cease to operate, the application of mild physical restraint, and the use of fob locks to prevent her leaving parts of the building in which she resides.

Past Interim Measures:
23.	On 1st April 2009 the DOLS provisions of the 2005 Act came into force, and an “Urgent Authorisation” of deprivation of liberty was made by V on 9th April as a managing authority pursuant to the provisions of section 4A (5) and schedule A1 of the 2005 Act.  However, such authority only lasts for a maximum of 21 days.
24.	A further assessment was immediately begun to see whether or not a “Standard Authorisation” of deprivation of liberty under schedule A1 of the 2005 Act could occur, but the eligibility assessor appointed questioned whether the circumstances of TB properly fell within the scope of the MHA 1983 rather than the 2005 Act as amended.
25.	As I earlier noted, Hogg J. on 22nd April 2009 made interim declarations and orders consequential thereon to preserve the position until my determination as to this issue.

More Recent Events:
26.	As I earlier identified, although hitherto there has been unanimity of evidence that TB’s best interests were served by being detained at V for a number of months, psychiatric evidence commissioned for the purposes of these proceedings has raised a question mark as to whether or not residence and treatment at V would be the appropriate provision in the medium to longer term.  Following the advice of that expert (Dr. Bradbury) consideration is urgently being given whether or not a “detailed neuro-psychiatric assessment” should be carried out, and if so, where, and to the instruction of an independent neuro-psychologist.  However, I should emphasise that the current placement at V is on balance considered to be the appropriate provision whilst those further enquiries and assessments are being made.  Given that, the urgent issue outlined at the start of this judgment in paragraphs 8 and 9 arises.

The Law:
27.	There are two streams of statutory provision under which it may lawfully be authorised that an incapable person may be deprived of their liberty in order for them to be given any necessary re-habilitative mental health care.  The two streams are under the MHA 1983 and the 2005 Act.

Who May Authorise Deprivation of Liberty in Relation to an Incapable Person?
28.	The answer appears in S.4A of the 2005 Act which provides that the authorisation to deprive an incapable person of their liberty can come from either an order of a judge of the Court of Protection or under the “Hospital Care Home Residents Deprivation of Liberty” procedures (the “DOLS” procedures) in Schedule 1A of the 2005 Act. 
“s.4A MCA: Restriction on deprivation of liberty”
“(1) This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty. 
...
(3) D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court... made by an order under section 16(2)(a) in relation to a matter concerning P’s personal welfare. 
(5) D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (Hospital and Care Home Residents: Deprivation of Liberty)”.
29.	As is clear from the quotation from that section above, section 16 (2) (a) of the 2005 Act becomes relevant.  That sub-section provides as follows:
“s.16 (2) (a) MCA: Powers to make decisions and appoint deputies”. 
“The Court may, by making an order, make decisions on P’s behalf in relation to [personal welfare or P’s property and affairs].”
30.	However, as has been pointed out to me in submissions, section 16A of the 2005 Act circumscribes the powers of the Court of Protection to make a welfare order which incorporates an element of deprivation of liberty.  The relevant provision reads as follows:
“s.16A MCA: Section 16 powers: Mental Health Act Patients etc 
(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….
(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).”
31.	It would follow that if by operation of section 16A (2) (b) above TB is ineligible to be deprived of her liberty under this Act the only potential option for detaining her lawfully would be under the MHA 1983.  But if I were to take that jurisdictional route she could not, for the reasons earlier adverted to, be detained at V.

Ineligibility: Statutory Provisions:
32.	How am I to decide whether or not TB is an “ineligible” person to be deprived of her liberty under the above section?  The section itself directs my attention to Schedule 1A of the 2005 Act.  In paragraph 2 of that schedule is set out the circumstances in which a person would be considered ineligible to be deprived of their liberty under the 2005 Act, the provision reading as follows:
Schedule 1A MCA:  2. Determining ineligibility
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—
(a)     subject to the hospital treatment regime, and
(b)     detained in a hospital under that regime.	P is ineligible.	
Case B	P is—
(a)     subject to the hospital treatment regime, but
(b)     not detained in a hospital under that regime.	See paragraphs 3 and 4.	
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—
(a)     within the scope of the Mental Health Act, but
(b)     not subject to any of the mental health regimes.	See paragraph 5.	
[Emphasis added]
33.	By a process of elimination, the other factors not applying to TB, it is Case E which may provide the answer.  But the relevant grid directs my attention to paragraph 5 of schedule 1, sub-paragraph 2 of which is of particular import.  It reads as follows:
“(2)     P is ineligible if the following conditions are met.
(3)     The first condition is that the relevant instrument authorises P to be a mental health patient.
(4)     The second condition is that P objects—
(a)     to being a mental health patient, or
(b)     to being given some or all of the mental health treatment.”
34.	I must also look, as paragraph 6 of that schedule directs me to, to a number of features so as to come to a conclusion on whether or not the patient objects in the terms described above.  So far as reasonably ascertainable I should have regard to all the circumstances, including [in this case TB’s] behaviour, expressed wishes and feelings, views, beliefs and values.
35.	I have no doubt at all from what I have read and heard that TB’s expressed objections to remaining at V are ones which qualify for the purposes of this schedule as real objections.
36.	But her objections are not enough of themselves.  As paragraph 5 (3) of the above schedule shows, I must determine whether or not TB is a “mental health patient” within the meaning of the MHA 1983.

The Meaning of a “Mental Health Patient”:
37.	Paragraph 16 of schedule 1 A of the 2005 Act helps with the determination of this question.  The definition reads as follows:
“Mental Health Patient” means a person accommodated in a hospital for the purposes of being given medical treatment for a mental disorder”  
Is TB in a hospital for these purposes?  Paragraph 17 of the schedule defines “hospital” by giving it the same meaning as that set out in Part 2 and s.34(2) and s.145 of the MHA 1983: “hospital” is defined as follows:
s.34(2) MHA: Interpretation of part 2
Except where otherwise expressly provided, this Part of this Act applies in relation to a registered establishment, as it applies in relation to a hospital, and references in this Part of this Act to a hospital, and any reference in this Act to a hospital to which this Part of this Act applies, shall be construed accordingly.
“registered establishment” means an establishment—
…(b)     in respect of which a person is registered under Part II of the Care Standards Act 2000 as an independent hospital in which treatment or nursing (or both) are provided for persons liable to be detained under this Act
s.145 MHA: Interpretation
“hospital” means—
(a)     any health service hospital within the meaning of the National Health Service Act 2006 … and
(b)     any accommodation provided by a local authority and used as a hospital by or on behalf of the Secretary of State under that Act; …
and “hospital within the meaning of Part II of this Act” has the meaning given in section 34 above”.
38.	Further assistance in defining this term is to be found in section 275 of the National Health Service Act 2006 which reads as follows:
“Health service hospital” means a hospital vested in the Secretary of State for the purposes of his functions under this Act or vested in a Primary Care Trust, an NHS trust or an NHS foundation trust,
“hospital” means—
(a)     any institution for the reception and treatment of persons suffering from illness,
(b)     any maternity home, and
(c)     any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation”.

Discussion:
39.	As has been pointed out to me the evidence establishes that the care home (V) is a registered care home under the Care Standards Act 2000, but is not registered as an independent hospital.  Nor is it part of the NHS.  Thus it does not fall within the necessary definition of a “Health Service hospital” as defined under the relevant provisions of the MHA 1983.
40.	The argument accordingly runs that the declaration and orders sought by the PCT do not constitute declarations/orders seeking “to accommodate her in a hospital” as above defined, and thus she is not on this basis a “mental health patient” as defined under schedule 1A of the 2005 Act.  It thus follows that TB’s detention at V falls outwith the categories of ineligibility under paragraph 2 of schedule 1A of the 2005 Act.  It further follows that an order under that Act can be made, or standard authorisation pursuant to the DOLS authorisation.  However, such orders can only be made if there is sufficient evidence to establish her best interests construed in the light of all the circumstances.

Conclusion:
41.	I believe the analysis, proposed by Ms. Dolan and accepted by Mr. Ruck Keene, as summarised in the preceding paragraphs, to be the correct one.  Furthermore, on the basis of the material relating to her best interests which I have also summarised I have no doubt that in the short term the interim declaration set out in paragraph 8 above should be granted, and I do so.  It will be subject to frequent and rigorous consideration, and will be subject to the periodic oversight of the Court.
42.	I also make the other orders necessary for the progression of this litigation proposed by counsel.

That is my Judgment:

CODA:
43.	After I heard full legal argument on the above, and after drafting this judgment I was informed that, very sadly, TB died having been found hanging.  In view of what I was told during the hearing about the frequency with which this point is now arising, and in the absence of any reported decision on it, I have decided to take the unusual step of issuing the judgment even though no declaration or orders will now issue.