This session covered: - seclusion - the new law Commission proposals for changes to Deprivation of Liberty - case law update on conditional discharge/CTO and DoL (MM & PJ)

1. North West Mental Health Law Group
May 2017, Manchester

2. Today’s session
• Seclusion – key points
• Law Commission DoLS proposals update
• Recent case law developments – MM & MM (DoL and
conditional discharge/CTO)

3. Seclusion – the basics

4. New MHA Code of Practice – 1st April 2015
• The main changes to the code include:
– significantly updated chapters on the appropriate use
of restrictive interventions, particularly seclusion and
long-term segregation, police powers and places of
safety

5. What is Seclusion?
• Seclusion is the supervised confinement and
isolation of a patient, away from other patients, in
an area where the Pt is prevented from leaving
• If a Pt is confined in line with the above
(irrespective of whether they agreed or requested
to be secluded) then they are secluded and must
be afforded the procedural safeguards of the Code
• Using alternative terms for seclusion does not alter
the fact that a Pt is secluded

6. When and where to Seclude?
• Seclusion is necessary for the purposes of the
containment of severe behavioural disturbance
• It should only be used in relation to patients
detained under the MHA
• Seclusion should only take place in a room/rooms
specifically designed for seclusion
• Locking Pts in their rooms at night does NOT
equate to seclusion

7. When and where to seclude?
• If an informal patient requires seclusion – an
assessment for an emergency application for
detention under MHA should take place
immediately
• It must NOT be used as a punishment or threat
• It must NOT be part of a treatment programme
• It must NOT be used solely to control self-harming
behaviour

8. How to seclude
• Seclusion may be authorised by:
– A Psychiatrist
– An AC who is not a doctor (organisation’s own
policies should indicate the appropriateness of this)
– The professional in charge of a ward (eg. A nurse)
If the RC or an AC does not authorise seclusion, then
the patient’s RC or the duty doctor should be informed
ASAP

9. What to do when a Pt is secluded
• Record the patient’s behaviour at least every 15
minutes
• Instigate seclusion reviews
• Undertake four hourly medical reviews until the
first MDT
• After the first MDT, at least two medical reviews
every 24 hours
• After the first MDT, hold further MDTs at least once
every 24 hours

10. What to do when a Pt is secluded
• Nursing reviews every 2 hours by two registered
nurses (one of whom was involved in decision to
seclude)
• If a Pt is secluded:
(a) for 8 hours consecutively; or
(b) 12 hours intermittently
within a 48 hour period:
An Independent review should take place promptly

11. The Seclusion Record
• It is necessary for the seclusion record to include
specific information such as who authorised the
seclusion, the date and time of commencement of
the seclusion and the reasons for the seclusion
• The complete list of what to include can be found
at paragraph 26.149 of the MHA Code of Practice

12. Ending seclusion
• Seclusion should end immediately when an MDT,
medical review or independent MDT review
determines it is no longer warranted
• If the individual in charge of the ward considers
seclusion can end, they can end it AFTER discussion
with the patient’s RC or the duty doctor (in person
or by phone)
• Opening a door for toilet and food breaks does not
constitute ending of seclusion

13. Seclusion – Blue Room Case
• 18 year old boy – secluded in padded room in a
school
• Court held:
– From the age of 16, the MCA 2005 is more relevant
than the Children Act 1989
– As DoLS didn’t apply to P, an application to the CoP
should have been made for any DoL after 16th
birthday (should apply in preparation for 16th
birthday)

14. Seclusion – Blue Room Case
• From 16 onwards, there had been no authority to
detain P
• Court couldn’t make interim declarations as to whether
the DoL conditions were in P’s BI until it had heard oral
evidence from carers and experts
• MHA Code of Practice reflects best practice in relation
to seclusion
• Even when young person does not have a mental
disorder within the MHA, the Code should be applied

15. Seclusion – Blue Room Case
• Court also stated regarding the seclusion:
– To control aggressive behaviour (must be the least
restrictive option)
– Not lawful to seclude solely for nakedness – this
reflected an attempt at behaviour modification
– Not lawful to seclude as punishment
– Not lawful to seclude solely to prevent self-harming

16. Recent Developments/Case Law
- Mental Health Act 1983

17. MM v WL Clinic and MHS [2015] UKUT
0644 (AAC) UT (AAC)
• (Charles J)
• MM had pathological fire setting – arson conviction in
2001
• Hospital Order imposed + restriction order (MHA
s37/41)
• Conditionally discharged in 2006
• Recalled in 2007

18. MM v WL Clinic and MHS [2015]
UKUT 0644 (AAC) UT (AAC)
• MM wants to be discharged and applied to the FTT
seeking conditional discharge
• There is little doubt that the conditions would amount
to an objective DoL
• MM’s argument is that this is lawful as he has capacity
and is willing to consent
• The FTT disagreed
• The UTT allowed appeal
• Secretary of State appealed to the Court of Appeal

19. MM v WL Clinic and MHS [2015]
UKUT 0644 (AAC) UT (AAC)
• The Court of Appeal stated there is no power to
impose conditions amounting to a DoL
• The cited RB v Secretary of State as correct
• Consent in such a situation is ‘illusory’
• Options for the FTT are:
– Grant absolute discharge
– Grant conditional discharge that doesn’t amount to
a DoL

20. PJ v A Local Health Board & Otrs [2015]
UKUT 0480 (AAC)
• A CTO condition required PJ to live in a care home where he was
under continuous supervision and control and was not free to
leave. This led to a DoL which PJ, who had capacity, had not
consented to.
• This was a breach of Article 5 ECHR and the UTT held that the
tribunal should not have ignored this even though it did not impose
the CTO conditions and had no legal jurisdiction over them.
• A tribunal should specifically and clearly highlight the apparent
DoL in its decision so that urgent steps can be taken to either
change the conditions, obtain MCA authorisation or recall the
patient to hospital.
• The tribunal should also consider the statutory criteria to see if a
CTO is appropriate in principle.

21. PJ v A Local Health Board & Otrs
[2015] UKUT 0480 (AAC)
• The power to impose conditions on a CTO sits with
the RC
• CTO conditions can amount to a DoL (though the
principle is that they should be less restrictive than
as in-patient)
• The FTT’s remit is to decide whether to discharge
if the criteria for detention are still not met
• So, the FTT cannot assess the conditions on a CTO
• Appropriate remedy = Judicial Review

22. Implications of MM and PJ
• Conditional discharge:
– Difficult to see how s37/41 patients would be
conditionally discharged where hey have capacity
 It is likely conditions would amount to a DoL
 Having capacity means neither DoLS nor CoP can be
used to authorise a DoL
 The Tribunal also cannot authorise the DoL

23. Implications of MM and PJ
• CTO:
– The comments that the RC can impose conditions in
a CTO amounting to a DoL are contrary to the policy
of CTOs?
– This means a further appeal may occur!

24. Recent Developments
- MCA/DoLS

25. DoLS Law Commission update

26. DoLS – Law Commission update
• Law Commission report
• Draft Mental Capacity (Amendments) Bill 2017
• Key themes & likely timescales

27. DoLS – Law Commission update
• MCA (Amendment) Bill, Key proposals:
– Reforms to s.4 MCA
– Limitations to s.5 defence
– Revised s.4B
– The Liberty Protection Safeguards
 Any setting
 From age 16
 Authorisation by responsible body
 Additional scrutiny by AMCP where P objecting

28. Proposed changes to s.4
• Active (rather than passive) duty to consider P’s ascertainable wishes,
feelings, beliefs and values
• Duty to give more weight to this
• S.4B – express authority to deprive of liberty:
– whilst seeking authority from court
– whilst awaiting authorisation under LPS
– in an emergency
• In each case, you must reasonably believe that P lacks capacity to consent
to the steps being taken and necessary to deliver life sustaining treatment
or prevent serious deterioration
• S.4C / 4D – redress for unlawful dol in private care homes or hospitals

29. Proposed changes to s.5
• When:
– Public body moving P to long term accommodation (unless for 28 days
or less)
– Restricting P’s contact with others
– Provision of serious medical treatment
– Administration of treatment covertly
– Administration of treatment against P’s wishes
• The defence under s.5 MCA only available where written record of:
– steps taken to establish whether P lacks capacity
– steps taken to support P to make own decision
– why it is believed P lacks capacity
– Why act in P’s best interests; and
– duty to provide advocate has been complied with

30. Proposed changes to s.5
• Written record must be prepared before the act
unless you reasonably believe delaying the act
would harm P

31. Proposed Liberty Protection Safeguards
• Arrangements to enable care and treatment to 16+ giving rise to a
dol
• Can be any setting / multiple settings
• Can include arrangements for transport
• Can include arrangements to ensure return of P to placement
• Does not include arrangements for assessing/treating mental
disorder (exception for LD outside MHA). Therefore compliant
patients lacking capacity in hospital for treatment of their
mental disorder would need to be detained under MHA under
the proposed regime

32. Responsible Body
Responsible Body:
• If P in hospital, the hospital manager
• If CHC, the CCG
• Otherwise, the LA (on basis of ordinary residence)

33. Conditions of Authorisation
• Capacity assessment (can include fluctuating capacity)
• Medical assessment (of unsound mind?)
• Assessment re whether LPS necessary and proportionate weighing
up likelihood of harm to P/others
• Minimum of 2 assessors who must be independent of each other
• Mental health arrangements excluded
• LPS cannot conflict with decision of LPA/CAD on accommodation
• Cannot conflict with MHA decisions (e.g. CTO/s.17 leave)

34. Independent Review
• Thereafter reviewed by independent reviewer
• Person not involved in day to day care & treatment of P
• If Independent Reviewer satisfied conditions for LPS met RB can
authorise
• However some cases must be referred to an AMCP for
determination;
– Where P objects
– Where dol necessary and proportionate re: risk to others only
– Discretion to refer others
– AMCP provided by LA (similar to AMHPs)
– Cannot be involved in day to day care and treatment

35. AMCPs
• Required to determine afresh whether the conditions
are met
• If satisfied, must approve the arrangements and notify
the approval in writing to the Responsible Body
• If not – notify in writing, providing reasons and
describing steps to obtain approval
• Should review information and where practical meet P
• Fresh consultation discretionary

36. LPS – Authorisation and duration
Authorisation
• Authorisation record which can travel with P so long as the specific
arrangements are authorised
• Once authorisation in place, protection of liability to acts done in
pursuance to authorisation
• Duration
– Can be renewed, 12 months, 12 months, 3 years
– Suspension for short term mental health admission
– Reviews
– Advocacy throughout
– Recommends right to tribunal or CoP with improved accessibility &
incorporation of medical expertise

37. MCA (Amendment) Bill
• When can we expect a government response?
• Potential for pre-legislative scrutiny
• In the meantime, carry on with the system we have...
• Report and draft bill available at
http:/www.lawcom.gov.uk/project/mental-capacity-and-deprivation-
of-liberty/

38. www.brownejacobson.com/health
Questions?
Rebecca Fitzpatrick
E: rebecca.fitzpatrick@brownejacobson.com
T: 0330 045 2131
M: 07711 241 715

39. All information correct at time of production.
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document are no substitute for full legal advice. It is for
guidance only and illustrates the law as at the published
date. If in doubt, please telephone us on 0370 270 6000.
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