The continuing role of the High Court’s Inherent Jurisdiction in Deprivation of Liberty cases

On 14 December 2018 the High Court gave judgment in Re: AB (Inherent Jurisdiction: Deprivation of Liberty) and ruled that its inherent jurisdiction can be used to fill the gaps in cases where a capacitous, vulnerable, restricted mental health patient needs to be deprived of his liberty following discharge from hospital.

In two recent cases involving the issue of the deprivation of liberty of mental health patients following detention under the Mental Health Act 1983 (MHA) the Supreme Court has recently ruled that:

  • A Mental Health Tribunal does not have power under the Act to impose conditions amounting to detention or a deprivation of liberty upon conditionally discharged restricted patients irrespective of whether that patient consents to the same  – see Secretary of State for Justice (Respondent) v MM. Judgment was handed down on 28 November 2018.
  • A Community Treatment Order (CTO) for a civil detained patient under the Act would be unlawful if the terms sought to be imposed by it amounted to a deprivation of liberty within the meaning of the “acid test” set down in Cheshire West – see Welsh Ministers (Respondent) v PJ (Appellant). Judgment was given on 17 December 2018.

The publication of the AB judgment was delayed to allow for the handing down of the decision of the Supreme Court in MM as that case also involved the deprivation of the liberty of a restricted mental health patient.

The circumstances relating to AB were that, in 2008, he was convicted of the rape and sexual assault of a child. The criminal court imposed a hospital order upon him under section 37 of the Act, with a restriction under section 41. Although medical assessments prepared for the sentencing revealed that he had an assessed IQ of 71, which amounted to a mild learning disability, he did not lack specific capacity to consent to his proposed treatment and care plan and support and accommodation arrangements in the community.

As he had capacity to consent to those arrangements, the Mental Capacity Act 2005 did not apply to him and the Court of Protection had no jurisdiction to sanction his deprivation of liberty in the community upon discharge from hospital detention.  

Consequently, the High Court was asked to rule on whether its inherent jurisdiction could be used to sanction AB’s deprivation of liberty in the community. The High Court has ruled that it can and, in ordering his deprivation of liberty for 12 months, the Honourable Mrs Justice Gwynneth Knowles in her judgment at paragraphs 39 and 41 said:

“In circumstances where AB is subject to a plan which has been very carefully designed for this particular benefit and also to protect members of the public, the choice for him if the plan is ruled unlawful is stark, indeed, that choice amounts to either consenting to his return to confinement in hospital or indeed a consent to a relaxation of the restrictions in that care plan so that they would no longer amount to a deprivation of his liberty. That would in my view place AB in an invidious position. He would not receive the support which he clearly needs and which all the professionals involved in his care consider that he needs which would keep him safe and, indeed, importantly, keep members of the general public safe from his behaviour.”

“It seems to me that, in these particular circumstances this is precisely the use to which the inherent jurisdiction should be put, exercised cautiously and in the manner prescribed…Having given the matter a great deal of careful thought, having decided that I am able to do so.”

Do get in touch if you need advice on how to approach these difficult cases – we have a friendly, expert team available to guide you through what can be a complex area.

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