Should mental health deprivation of liberty cases be heard by courts or tribunals? The pros and cons are considered.

1. 1
DOLs: COURTS v TRIBUNALS
Professor Anselm Eldergill
Judge, Court of Protection
Saturday 8 April 2017

2. 22
How it
was

3. C. DOLs: Defining the population
A. Introduction to the Law: Mental Capacity Act 2005
B. Introduction to the Law: DOLs Provisions
D. The Tribunal Model & Its Origins
E. The Law Commission’s Report
F. Scenarios
G. Different Models
H. Critical Issues
Annex: The Case for a Mental Health Commission
ContentsContents

4. 4
A. Introduction to the Law: MCA 2005

5. Law today
Treatment of patients under the
Mental Health Act
• Statutory detention/guardianship
criteria based on significant mental
disorder + significant risk
Judicial involvement
• No judicial involvement in the
decision to section a person
• Right to apply after the event to a
Mental Health Tribunal/First-Tier
Tribunal
• Appeals from tribunal decisions on
points of law to Upper-Tier Tribunal
MCA 2005: Treatment Outside the
Mental Health Act
Patient has capacity
• Treatment requires their consent
Patient lacks capacity
• The MCA applies whenever you wish to
give care or treatment to an
incapacitated person outside the
Mental Health Act
Judicial involvement
• Specialist court: Court of Protection is
available if needed
55

6. 6666
“Outside the Mental Health Act”
Treatment or care falls outside the Mental Health Act 1983 if it is …
Treatment or care for a
physical health problem,
eg heart or liver disease
Mental health treatment or care
which is not authorised by the
Mental Health Act 1983

7. 7777
Making decisions — MCA
Mechanisms
MAKING DECISIONS
ADVANCE DECISION
LPA DONEE
COURT OR DEPUTY
USE OF SECTION 5
Require
capacity

8. 8888
Example
Mr Smith is in a care home. He
suffers from dementia and angina
and requires treatment and care for
both conditions.
Applying the
MCA 2005

9. 9
B. Introduction to the Law: DOLs Provisions

10. Three streams and a murky river
 How has
this come
about?

11. 11
StandardAuthorisationNewsupportedliving
Ownhomeform
XApplicationtoCoP
PW Application
e.g.
Residence
Contact
Removal
UsualCOP1Application
PW
Personalwelfaredispute
1 April 2009 20151 October 2007
Threestreamsandamurkyriver

12. DoLs 2015-2016
0
10
20
30
40
50
60
70
80
0
20
40
60
80
100
120
140
160
DEPRIVATION OF LIBERTY (S.16) 2015 19 33 40 32 27 46 41 40 29 49 29 41
DEPRIVATION OF LIBERTY (S.21A) 2015 10 11 13 17 34 37 43 45 45 45 62 70
REXAPPLICATIONS (POST CW) 2015 20 31 59 52 71 72 50 55 38 68 55 70
DEPRIVATION OF LIBERTY (S.16) 2016 28 34 35 38 34 32 46 51
DEPRIVATION OF LIBERTY (S.21A) 2016 50 88 88 59 73 98 81 87
REXAPPLICATIONS (POST CW) 2016 67 135 151 128 147 134 122 135
JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC

13. 13
C. DOLs: Defining the population

14. A lowering of the detention threshold
SECTIONABLE
NOT SECTIONABLE
1983 Act detention
threshold
MENTAL HEALTH ACT MODEL MCA DOLs MODEL
DOLs DOES NOT
APPLY
(ELIGIBILITY
REQUIREMENT)
DETENTION UNDER DOLs

15. Hidden dangers
IT’S ALL POSITIVE!
 No new or extra population is
being detained.
 We were always detaining these
people — but doing it without any
legal authority.
 Correctly interpreted, the DOLs
scheme (inelegantly) plugged the
Bournewood gap for care homes
and hospitals. A proper legal
authority or order is required for
all deprivations of liberty.
POTENTIAL NEGATIVE
 The order not only protects the
vulnerable — it empowers those in
whose power the incapacitated
person is.
 The care home and hospital now
have, or think they have, legal
authority to deprive the person of
liberty in every and all areas of
their daily life.
 Interference with liberty is no
longer occasional, guilty, tentative
or furtive but confidently asserted
against a person incapable of
resisting.
If a standard authorisation is in force the managing authority ‘may
deprive P of his liberty by detaining him’ ‘in circumstances which amount
to a deprivation of liberty’. Schedule A1, paras 1 and 2
‘Insofar as orders’

16. Who is deprived of their liberty?
 Deprivation of liberty requires that the person has been
confined in a particular restricted space ‘for a not negligible
length of time’ (Storck). This is the ‘objective condition’.
 In addition, a ‘subjective condition’ must be met. This is
that the person has not validly consented to their
confinement — However, by definition, a person cannot
consent to being confined if they lack capacity to consent
(see eg HL and Storck).
 Of considerable importance is whether the
professionals exercise ‘complete and effective
control’ over the person’s care and movements so
that the individual is ‘under continuous supervision
and control and is not free to leave.’ (See eg HL,
Storck, DE, Cheshire West)

17. Interpretation in England & Wales
 If an incapacitated
person were to
seek to leave
would we allow
them to leave?
 If the answer is no
then they are
deprived of their
liberty.
De facto detention issue … but

18. DiDistinguishingstinguishing between liberty and autonomybetween liberty and autonomy
In the case of someone in the final
sad stages of dementia, confined to
bed and so cognitively impaired as
to be unable to form the idea of
swallowing let alone mobilising,
there is no coercion or interference
at all with their ability to do the
acts they will nor therefore with
what they can do.
Such a person’s actions are circumscribed by the ever-reducing inner
circles of their own abilities rather than by external lines and limits on
their freedom to act drawn and imposed by others. The boundaries
exist within the person not without. The need for strict legal safeguards
arises not from complete loss of liberty but from complete loss of
autonomy, which leaves the person wholly dependent on and at the
mercy of others, and so wholly vulnerable to abuse and inadequate
care.

19. Location
 Is there a risk that Article 5
is empowering the state to
interfere in the citizen’s
private life
...when the intention of
Articles 5 and 8 is to protect
the citizen against
interference by the state?
Image result for care home uk

20. AUTONOMY
CAPACITY
for autonomous action
FREEDOM
to act autonomously
Requires
Reduced by
LACK OF CAPACITY
for autonomous action
RESTRAINTS
on autonomous action
BENEFICENCE
Vicarious decision
Practical assistance
Liberal obligations
RISK-BASED, JUST,
LIBERAL, RULE OF LAW

21. Risk vs capacity model
THE PERSON CANNOT
UNDERSTAND OR WEIGH
RELEVANT INFORMATION
ABOUT THEIR PERSONAL
WELFARE
THEREFORE I MUST DECIDE OR
DO IT FOR THEM AND DO WHAT
IS BEST FOR THEM
THEREFORE THE PERSON IS
UNABLE TO DECIDE OR DO THE
THING IN QUESTION
We are not interfering at all with their freedom to
do anything they can do and wish to do. They
remain just as free as before to do everything they
can and wish to do.
THE
CAPACITY
MODEL

22. 22
D. The Tribunal Model & Its Origins

23. Origin of MH Tribunals:
(1) Franks Report of 1957
23
The history of mental health review tribunals can be traced back to two official reports published in
1957:
 The Franks Report
 The Percy Report
Franks Report of 1957
The Franks Committee addressed the issue of administrative justice and the work of tribunals.
According to Franks, the necessity for administrative justice should not lead to the creation of tribunals
for their own sake where ordinary courts could well take the decisions in question: a ‘decision should
be entrusted to a court rather than to a tribunal in the absence of special considerations which make
a tribunal more suitable.’
It was in the context of this developing tribunal system that a decision was taken to depart from the
Lunacy Act principle that decisions affecting individual liberty should be predetermined judicially, and
be reviewable instead by a specialised tribunal held after the event.

24. Origin of MH Tribunals:
(2) Percy Report of 1957
24
Prior to 1959, the order of a justice of the peace, or other judicial authority, was generally necessary
before a person could be compulsorily admitted to hospital or received into guardianship. Under
mental health laws The Royal Commission advocated the repeal of these certification procedures:
‘We consider that a sufficient consensus of medical and non-medical opinion on the need to compel
a patient to accept hospital or community care would normally be provided through (an)
application for the patient's admission made by a relative or mental welfare officer, ... two
supporting medical recommendations, the acceptance of the patient as suitable for the form of care
recommended, and the continuing power of discharge vested in the nearest relative, the hospital
or local authority medical staff, the members of the hospital management committee or local
authority, and the Minister of Health. To refer the application and medical recommendations to a
justice of the peace before the patient's admission would not in our view provide a significant
additional safeguard for the patient ...’
Report of the Royal Commission on the Law relating to Mental Illness and Mental Deficiency, Cmnd.
169 (1957)

25. Percy Report of 1957 (2)
25
‘We shouldmakeit clearthat thesereviewtribunalswouldnot beactingasanappellatecourtof law
to consider whether the patient's mental condition at the time when the compulsory powers were
first used had been accurately diagnosed by the doctors signing the recommendations, or whether
there had been sufficient justification for the useof compulsory powers at that time, nor to consider
whether there was some technical flaw in the documents purporting to authorise the patient's
admission...Thereviewtribunal'sfunctionwouldbetoconsiderthepatient'smentalconditionatthe
time when it considers his application, and to decide whether the type of care which has been
provided by the use of compulsory powers is the most appropriate to his present needs, or whether
anyalternativeformofcaremightnowbemoreappropriate,orwhetherhecouldnowbedischarged
fromcare altogether.’

26. Court or Tribunal: Is there any difference?
26
Is it increasingly just a matter of terminology?
What is the fundamental difference, if any? For
example:
•Some tribunals now consist of a single member who
is called ‘a tribunal judge’ and who receives exactly
the same salary as a district or circuit judge.
•The law to be applied by tribunals is often extremely
complicated.
•The procedures applied by tribunals are increasingly
elaborate.
•There is now a single court and tribunal service
•Could the Court of Protection be renamed the
Incapacity Tribunal. What would the objection be?

27. Characteristics of tribunals (mental health)
27
Unless the distinction has become/is to become meaningless, I would suggest that the
following features are typical elements of a tribunal system approach:
1.They are suited to specialised areas of life and practice and therefore often have a
multi-disciplinary panel of members with expertise across a number of inter-related
fields.
2.They have relatively simple rules and procedures which (a) can be understood by
citizens acting in person; (b) enable hearings to be relatively informal, and (c) enable the
tribunal to determine a large volume of cases relatively speedily and inexpensively.
3.They often review administrative or quasi-administrative decisions by public officials
4.Legal aid and free legal representation is usually not available.
5.Hearings are usually not held in conventional court buildings and often take place
locally.

28. 28
E. The Law Commission’s Report

29. Law Commission Report on DOLs: CoP or MHTs
 However, the advantages and disadvantages not clear-cut according to the final report.
Law Commission recommends that Lord Chancellor, LCJ and Senior President of
Tribunals ‘review the question of the appropriate judicial body’ (para 12.72).
 CoP ‘has been justifiably criticised for being slow, cumbersome and expensive’ (Final
report, para 12.65)

30. Law Commission: In favour of Tribunals
 Greater mental health law expertise — CoP relies on
generic judges (but tribunal increasingly so also)
 Membership includes psychiatrists and expert lay members
 Relatively informal
 Flexibility and simplicity (but increasingly less so)
 Accessibility: Attends on P
 Cost efficiencies
 Supported by a majority of consultees

31. Law Commission: In favour of CoP
 Has built up considerable expertise in MCA matters
 Higher CoP cost may be a function of the greater complexity of cases
 DJs relatively informal and can visit P (Possible on the scale required?)
 Accessibility: CoP has introduced a regionalisation programme (But query
mental health law expertise)
 Flexibility and simplicity: CoP has introduced a case management
programme (but does not apply to DOLs and does it make case
management more or less simple and flexible?)
 Impractical for tribunals to sit in care homes (really?)
 Setting up costs of a new, more extensive, MHT
 Problems of parallel jurisdictions, transfer of cases and/or demarcation, eg
MHT does DOLs case and other concurrent MCA applications dealt with by
CoP (significant issue)
 MHT for Wales is not part of HMCTS; funded by the Welsh Government.

32. 32
F. Scenarios

33. 3333
Examples
Classic Older Persons DOLs case
Mr Smith has dementia. He has been discharged from an acute hospital to a
care home. He wishes to go home. A ‘DOLs order’ is in place.
As above but in addition:
The local authority has applied for a property and affairs deputyship order and
for power to sell Mr Smith’s home in order to pay the care home fees and other
care expenses. Mr Smith objects to this and to the need for a deputy.
As above but in addition:
The care home bans Mr Smith’s son from visiting him on the ground of his
allegedly disruptive behaviour. The son applies/wishes to apply to court for a
declaration or injunction in relation to contact with Mr Smith.
As above but in addition:
The local authority applies for a declaration or injunction preventing the son
from visiting or having contact with Mr Smith.

34. 3434
Examples
As above but in addition:
Having obtained an injunction preventing the son from visiting or having contact
with his father, it is alleged that the son has breached it. The local authority
apply for a penal notice and subsequently apply for the son’s committal for
breach of the penal notice.
As above but in addition:
The local authority apply for £7500 in costs against the son.
As above but in addition:
An interesting point of law has arisen in the DOLs proceedings and the tribunal
receives detailed legal submissions. The tribunal judge prefers the local
authority’s interpretation but his ‘wing members’ disagree.
As above but in addition:
The tribunal refuse a request for an expert report because the tribunal already
includes an expert psychiatrist and expert social worker.

35. 3535
Examples
As above but in addition:
Mr Smith objects to some of his medication.
As above but in addition:
Mr Smith is prevented from having a sexual relationship with a fellow resident.
As above but in addition:
A statutory Will and gifting application is made in respect of Mr Smith’s assets.
As above but in addition:
The public and/or press wish to attend the tribunal.
As above but in addition:
The press wish to report the proceedings.
As above but in addition:
It turns out that Mr Smith has made a PW LPA, the validity of which is disputed …etc etc etc

36. 36
G. Different Models

37. Court & Other Structures
Into court
Litigation friend for P
See learned person
Present the facts
Present expert evidence
Present the law
Make findings
Apply the law
Grant remedies
Tribunal goes to person
P instructs own lawyer
Expert membership
More inquisitorial
Fewer legal rules
Make findings of fact
Simpler laws
Simpler remedies
Usually no costs awarded
DELEGATES
 Guardians
 Deputies
 Appointees
 Litigation friends
 Court officers (ACOs)
COMMISSIONS
 Mental Health
Commission
 Public Guardian
HYBRID COURT AND
MH TRIBUNAL
HYBRID FAMILY
COURT

38. Contentiouswork
Or to OPG, as
with LPA and
EPA
Applications
+ Objections
to CoP
Non-contentiouswork
&Casemanagement
Solicitor
Team Ldr
Solicitor to the Court of Protection
Solicitor
Team Ldr
Solicitor
Team Ldr
Exec Off
Admin
Exec Off
Admin
Exec Off
Admin
A MENTAL HEALTH COURT
President, Vice President, HCJ: Full CoP Rules, Serious Medical Trt, etc
CoP Judges
Circuit Judges, DJs
MHTs,
MHT Judges
Other ticketed
Judges
Allocation

39. Mental Health Commission Role
 See the Annex

40. 40
H. Critical Issues

41. Some Critical Issues (1)
 The simplicity of the legislative scheme. Laws should be a last resort;
impose minimum powers, duties and rights; be unambiguous, just, as short
as possible, in plain English, provide a mechanism for enforcing duties and
a remedy when powers are exceeded.
 Professional and judicial culture
 Resources (judicial, court space, local authority, NHS)
 Availability of Legal Aid/different legal aid rates/OS involvement
 Availability of representation
 Applications and/or references
 Interface with the Mental Health Act
 Rules, procedures, forms, formality
 One, two or three person courts or tribunals/use of assessors
The basic court/tribunal structure may be considerably less
important than:

42. Some Critical Issues (1)
 Role of non-legal members: decision-makers or evidence gatherers
 Costs provisions
 Fees for issuing applications and hearing fees
 Public and press access, publicity, reporting.
 Availability of injunctions, committals and enforcement powers
 Training
 Specialist or generic judges
 Delegation of powers to civil servants
 Use of the MH Panel of Solicitors
 Appeals procedures (High Court and/or Upper Tribunal)
 Transfer of case regulations

43. 43
The Case for a Mental Health Commission
Annex

44. International Standards
‘Professor Anselm Eldergill … argued that the
standards set for mental health services in
England and Wales should be comparable with
those adopted by other European countries and
those ratified under international conventions and
declarations. He believed that the observance of
draft recommendations agreed by the Committee
of Ministers of the Council of Europe will require
the existence of an independent and adequately
funded authority with responsibility for the
implementation of mental health legislation. In his
evidence, Professor Eldergill suggested in detail
the functions such an authority would need.’
Joint Committee on the Draft Mental
Health Bill (House of Lords, House of
Commons), Session 2004-05, Volume I,
HL Paper 79-I, HC 95-I

45. Functions
1 Keep the operation of
the law under review
To keep under review the exercise of the powers and duties
exercisable under the Mental Health Act and the Mental Capacity
Act [‘the Acts’] and the implementation of the Human Rights Act
1998 in respect of incapacitated patients and patients subject or
liable to compulsion, and the implementation of any
international legal standards or principles prescribed by
regulations.
2 Legality of compulsion To scrutinise all statutory documents completed by or under the
Acts that are received by the Commission, to advise those
furnishing them of any irregularities, and to correct or amend
them where appropriate and in whatever way is deemed
appropriate.
3 Visiting of patients Unless the patient objects, whenever requested by a person or
body specified in regulations, to review the care and treatment
of an incapacitated patient or a patient subject to compulsion
under the ActS. (Having been notified that a person is subject to
compulsion, the Commission would write to the patient, with an
information leaflet, following up with contact by telephone.)

46. Functions
4 Visiting of hospitals Whenever reasonably requested by a person or body specified
in regulations, to review the way in which the Acts are being
applied in respect of incapacitated patients or patients subject
to compulsion under them by any person, group of persons,
establishment or body.
5 Ill-treatment, neglect To review any case where it appears there may be ill-
treatment, neglect in care or treatment, or the improper
detention, compulsion or supervision of any person who may
be suffering from mental disorder; and, where appropriate, to
undertake or order their independent investigation.
6 Patient deaths, harm to
patients
To review the circumstances surrounding the death or
physical harm of any person of persons subject to
compulsion; and, where appropriate, to undertake or order
their independent investigation.

47. Functions
7 Use of solitary
confinement or
restraint
To review, and where deemed appropriate to order the
termination of, any use of solitary confinement (seclusion) and
mechanical restraint.
8 Restrictions on right to
communicate
To review, and where deemed appropriate to order the
termination of, any restrictions placed on patients’ rights to
communicate with others.
9 Prosecution of offences To investigate and prosecute offences under the Acts (ill­
treatment, neglect, etc)
10 Code of Practice To publish a code of practice on the Acts.
11 Annual Report To publish an annual report.
12 Other functions To perform such other functions in relation to mentally
disordered persons as may be prescribed by regulations.

48. Need for visiting function
‘We consider that the list of tasks suggested by Professor Eldergill
has much to commend it, with the exception of the proposal that
the codes of conduct should be published by the monitoring
body.
We recommend that the Bill set out powers and duties that will
ensure the preservation of a specialised system to monitor
patients subject to compulsion. In doing so, we suggest that the
Government pay particular attention to the duties proposed by
Professor Eldergill, save the proposal relating to the codes of
practice. This includes duties in relation to all patients subject to
the powers in the Bill, including restricted patients.
We recommend, too, that the body charged with monitoring
patients subject to compulsion have a duty similar to the visiting
duty already imposed on the Mental Health Act Commission. That
role includes a duty to visit routinely mental health facilities to
interview patients.’
Joint Committee on the Draft Mental
Health Bill (House of Lords, House of
Commons), Session 2004-05, Volume I,
HL Paper 79-I, HC 95-I