| SPOTLIGHT |
Alex Ruck Keene KC (Hon) examines a recent High Court case concerning the Mental Health Act, ‘detainability,’ and judicial scrutiny (and the real underlying problems of children with complex needs).
At the heart of the decision in Re SB [2024] EWHC 2964 (Fam) is the ongoing crisis in supporting children with complex needs. Those issues are discussed in detail in chapter 14 of the Law Commission’s consultation paper on disabled children’s social care needs, and have been highlighted in detail by (amongst others) the Nuffield Family Justice Observatory and the Children’s Commissioner for England. Continuing work started by the previous Government, the Labour Government has announced steps including “[u]ndertaking joint work with NHS England to develop integrated, multi-agency community provision to provide care and/or treatment where restrictions that amount to deprivation of liberty can be imposed.”
In the meantime, SB’s case is grim, but not unusual. It concerns a 15 year old diagnosed with autism and learning difficulties. As Keehan identified at paragraph 11:
In 2020, her parents separated and the mother left the family home. These events greatly distressed SB who felt she had been abandoned by her mother. This distress was considerably exacerbated when SB became aware that her mother had given birth to a baby. Overlaying this was the alleged sexual abuse that SB had suffered by an older male relative which had repeatedly taken place since she was 12 years of age. The perpetrator was arrested in May 2024 and is the subject of an ongoing police investigation.
In turn:
4. Since April 2024 SB has been exhibiting increasingly challenging and extreme behaviour which has placed herself and others at very real risk of very serious harm and, potentially, leading to her death or the death of others. She has been the subject of repeated referrals to the local authority, local psychiatric services, and the police.
5. SB is currently placed in a General Adolescent Unit located at the North Wales Adolescent Service (‘NWAS’) subject to a DoL. Betsi Cadwaladr University Health Board (‘the health board’) is responsible for caring for SB during her admission to NWAS. It was joined as the fourth respondent to these proceedings on 13 August 2024.
6. An issue has arisen between the local authority and the heath board as to which statutory body is responsible for the care and treatment of SB and under what legal framework. This issue culminated in the local authority seeking a declaration and ancillary orders from this court, in short form, that because SB was detainable under the provisions of the Mental Health Act 1983 (‘the 1983 Act’), the court did not have jurisdiction to grant a DoL pursuant to the inherent jurisdiction. In practical terms, the thrust of the local authority’s case was that it was the responsibility of the health board, pursuant to the provisions of the 1983 Act, to make provision for the care and treatment of SB, and not the responsibility of the local authority even with the benefit of a DoL, if authorised by the court.
7. The health board strongly opposed the position of the local authority. It asserted that this court had no jurisdiction to determine whether SB detainable in a hospital pursuant to the 1983 Act; it had no jurisdiction to exercise a reviewing or supervisory role of the decisions made by clinicians and professionals under the 1983 Act; and that for the court to make a declaration or findings as to whether SB was detainable under the 1983 Act put pressure on the health board to change its position, or otherwise, was an abuse of process.
As Keehan J identified:
53. In support of the proposition that this court can properly analyse and determine whether the 1983 Act is an available scheme, the local authority relied heavily on the decision in the case of Manchester University NHS Foundation Trust v JS & Others (Schedule 1A Mental Capacity Act 2005)[2023] EWCOP 33. […] The essential issue in the case was whether the 17 year old patient was ineligible to be deprived of their liberty pursuant to the provisions of the Mental Capacity Act 2005 (‘the 2005 Act’).
54. Schedule 1A of the 2005 Act establishes that certain categories of people cannot be deprived of their liberty under that Act. Schedule 1A sets out five situations (‘cases’) when a person is ineligible if they are “(a) within the scope of the Mental Health Act, but (b) not subject to any of the mental health regimes” (para 2 of Schedule 1A) andthey object to being a mental health patient, or to some or all of the mental health treatment (para 5(4) of Schedule 1A).
55. Paragraph 12(1) of Schedule 1A defines the term “within the scope of the Mental Health Act” as:
“P is within the scope of the Mental Health Act if –
An application in respect of P could be made under s.2 of s.3 of the Mental Health Act; and P could be detained in a hospital in pursuance if such an application, were one to be made.”
56. The meaning of the word ‘could’ in paragraph 12(1) of Schedule 1A was considered by Charles J in the case of GJ v The Foundation Trust [2009] EWHC 2972 (Fam). He concluded as follows at paragraph 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, s. 2 or s.3 MHA 1983 are met (and if an application was made under them a hospital would detain P).”
The Health Board came out swinging:
57. In the health board’s skeleton argument, it was submitted that the JS case was distinguishable as it was limited to a discrete ability of the Court of Protection to determine ineligibility of detention under the 2005 Act for case E patients (i.e., those not already detained under the 193 Act), and did not extend to children below the age of 16, such as SB, within proceedings before the Family Division. In the local authority’s skeleton argument, it was submitted that (i) by parity of argument with the ineligibility provisions of Schedule 1A of the 2005 Act, (ii) the interpretation of paragraph 12(1) of Schedule 1A endorsed by Charles J in GJ (above) and (iii) the approach taken by HHJ Burrows in the JS case (above), this court could and should find and declare that SB is detainable under s.3 of the 1983 Act. Accordingly, there is no lacuna for the inherent jurisdiction to deprive SB of her liberty in hospital where she is currently placed or in another placement.
Perhaps slightly surprising, given the vigour with which the arguments had been put:
58. […] at the conclusion of the health board’s oral submissions and the court indicating that (i) the case of JS was distinguishable from the legal framework and factual matrix pertaining in this case, and (ii) did not provide material assistance to the court in respect of the issue to be decided in this case, the local authority did not oppose the submissions made by the health board and did not pursue its application for a declaration. No other party, in particular the children’s guardian, sought to make any oral submissions in support of or in opposition to the case originally advanced by the local authority.
Keehan J did then wonder whether he should give a judgment, given that there was no longer any dispute, but decided to do so, and set out his analysis thus:
59. The leading authorities are abundantly clear that this court has no role to supervise or review decisions which have been entrusted by Parliament to another public authority. The 1983 Act is an obvious example where Parliament has provided for a statutory code in respect of the detention of people with a mental disorder for treatment in hospital.
60. Schedule 1A of the 2005 Act makes statutory provision for finding that a person is ineligible from being deprived of their liberty under the 2005 Act, where in case E, they could be detained under the provisions of the 1983 Act. This express statutory provision enables the Court of Protection to consider and determine the question of whether a person could be detained under s.2 or s.3 of the 1983 Act. It is limited to the exercise of determining the specific question of whether a person is ineligible to be detained under the provisions of the 2005 Act. I cannot see any basis for concluding that this provision is to be read as having a wider application, and, in particular, to permit the court to determine whether a person is ‘within the scope of the Mental Health Act’ when exercising its powers under the inherent jurisdiction.
61. There is no authority for the proposition that a court contemplating the exercise of the inherent jurisdiction to deprive a person of their liberty had jurisdiction to encroach upon the issue of whether a person was detainable or could, or would, be detained in a hospital under s.3 of the 1983 Act. In the absence of clear authority, I am satisfied that for this court to make findings and/or declarations about whether SB was detainable under s.3 of the 1983 Act would be to exercise an impermissible supervisory or review function of the clinicians and mental health professionals acting pursuant to the provisions of the 1983 Act. This court has no jurisdiction to make such findings or orders.
Keehan J was also concerned as to the practical point of making a declaration that SB was detainable:
62. Further, and in any event, even if this court did find favour with the opinions of Dr Vaidya over those of Dr Hales and made a finding that SB was detainable under s.3 of the 1983 Act what would that achieve? It would not, of itself, lead to SB being detained in a hospital for treatment under the 1983 Act. It might lead to the clinicians and professionals charged with making the decision to detain her under the 1983 Act, to change their professional opinions and decisions. However, to make orders in these circumstances would, as Hoffman LJ set out in ex p T(above), be an abuse of process.
63. If the court did make such a finding, and then went on to make the declaration initially sought by the local authority that the court could not then exercise the inherent jurisdiction to authorise the deprivation of liberty, SB could find herself in a position where she was not afforded protection by being detained for treatment in a hospital nor afforded the protection of being deprived of her liberty in a safe place. This would be an intolerable and unconscionable state of affairs.
Keehan J made clear that he did not “intend any criticism of the local authority in making their applications” in refusing their application for declarations as to the detainability of SB, but:
68. By reason of the above, the court will continue to authorise SB’s deprivation of liberty at NWAS pursuant to its inherent jurisdiction. Such an order is both necessary and proportionate having regard to the aim that is sought to be achieved, namely, to prevent SB, in the interim, causing harm to herself or others, pending her imminent discharge into a community placement.
Comment
Many people, I suspect, would be more troubled by the underlying facts of SB’s case, and the lack of appropriate support for her (driven, no doubt, as much by lack of resource as anything else) than by the procedural minutiae of the judgment. It is, however, clearly right, although subject to an important nuance. Paragraph 59 could not be right to the extent that it is suggesting that the High Court cannot consider the lawfulness of decisions of those discharging duties under the MHA 1983. It is self-evidently the case that the High Court can judicially review decisions made by clinicians in relation to treatment: see, for instance, R (Wilkinson) v Broadmoor Hospital, Responsible Medical Officer & Ors [2001] EWCA Civ 1545 (in relation to decision-making in respect of treatment).[1]
The leading authorities are abundantly clear that this court has no role to supervise or review decisions which have been entrusted by Parliament to another public authority. The 1983 Act is an obvious example where Parliament has provided for a statutory code in respect of the detention of people with a mental disorder for treatment in hospital.
Further, in Surrey County Council v MB [2007] EWHC 3085 (Fam), Charles J considered arguable judicial review proceedings against both doctors and the local authority responsible for (what would now be called) the AMHP in respect of a refusal to make an application under the MHA 1983 in a complex interface case. He noted that:
49. It is acknowledged that a challenge to a decision under the Mental Health Act, being a clinical and professional decision, at public law is a difficult one to establish. However, in my judgment the grounds of challenge that are put forward in the judicial review claim to the decisions of both doctors for whom and for which the first defendant in the judicial review proceedings takes responsibility, and of the social worker, which is the reason for the second defendant being in the proceedings, are arguable.
The case did not, in fact, ultimately proceed to a substantive hearing, and it is important to note that Charles J was not proceeding on the basis that he might be making a determination, himself, that MB was ‘detainable,’ but it does confirm that such decision-making is not beyond review by the courts.
Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.
[1] There is a separate question about whether the possibility of judicial review really meets the requirements of Article 8 ECHR as regards the requirement that patients have the ability to challenge decisions in relation to involuntary treatment. That was a matter addressed by the Independent Mental Health Act review, and has led to proposals in relation to tighten up safeguards around such treatment in the Mental Health Bill.
