When you got nothing ...

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... You got nothing to lose. So sang Bob Dylan, but is that always the case?

Is it possible that someone in detention retains a measure of freedom, even after his liberty has been taken away? A recent decision of the Court of Appeal suggests that he does, at least if he is a prisoner (Iqbal v Prison Officers Association, 2009).

But hasn’t the court already told us that in the case of mental health patients, the reverse is true?

Mr Iqbal is serving a 15-year prison sentence. In August 2007, when he was at HMP Wealstun, there was a one-day strike by prison officers. All prisoners were locked in their cells by order of the governor and as a result, Mr Iqbal lost the five hours he would have spent at work or in the gym. He claimed that he had been falsely imprisoned by the prison officers, but he lost his case in the Court of Appeal.

The governor could not be liable to Mr Iqbal, because the Prison Act 1952 says that a prisoner may be lawfully confined by the governor. If a prisoner enjoys no ‘residual liberty’, that would, of course, have been a further reason for rejecting Mr Iqbal’s claim, but it did not figure here.

The Court of Appeal felt that there was such a thing as residual liberty. One of judges said, “even if [he is] lawfully within a prison by order of a court, a prisoner enjoys the liberty not to be further restrained by unauthorised action whether by fellow inmates or prison officers”.

But that idea seems inconsistent with the decision in the Munjaz case, which, of course, concerned a patient detained in a high secure hospital under the Mental Health Act 1983 (MHA). He was placed in seclusion for days on end and claimed that he had seen a doctor too infrequently (Munjaz v Mersey Care NHS Trust, 2003). The case turned upon the MHA Code of Practice and whether its requirements were fully met, but the Court of Appeal and the House of Lords also found that for detained patients, residual liberty – or what was called “prison within a prison” – did not exist.

Iqbal clearly has resonance in mental health cases, for under the MHA, the managers of a hospital enjoy powers similar to those endowed upon the governor of a prison: a valid detention application enables a patient to be detained, but also to be re-taken if he absconds, treated against his will and, following Munjaz, placed in seclusion (MHA, section 6(3)). In most cases, that authority will cover the hospital managers and those that do their bidding, but it won’t apply in other circumstances.

The cases of Iqbal and Munjaz are different, not least because the first was about a prisoner and the second about a patient, and also because they were decided according to substantially different authorities. Yet each concerned a man who said he retained some freedom, even after his liberty was lawfully taken away. It may be, therefore, that in entertaining the notion of residual liberty, the Court of Appeal has placed itself at odds not only with its earlier self, but also with the House of Lords.

And yet, the decision in this case goes to the heart of mental health care: it implies that in the right circumstances, a detained patient may challenge the decision to seclude him. No such challenge will lie against the principal detainers, of course: like the Prison Act in Iqbal, the Mental Health Act makes sure of that. But a claim might succeed where one patient locks another in a cupboard, or even where a formal decision to seclude a detained patient is inconsistent with established hospital policy.

(Bob Dylan, Like a Rolling Stone, copyright ©1965; renewed 1993 Special Rider Music)

Does the coroner owe you money?

It is becoming less common for coroners to make a charge for the documents they provide in connection with an inquest. Some do still charge - for copy post mortem reports, for example, and witness statements - and where they do, it’s usually under regulations introduced in 2002. But those regulations don’t just help coroners.

It is usually The Coroners' Records (Fees for Copies) Rules 2002 that coroners invoke when they send out their invoices. Rule 3 says, "The fee payable to coroners or other persons for furnishing photocopies of inquisitions, depositions or other documents in their custody relating to an inquest shall be £1.10 for each page" (emphasis added). Clearly, a coroner can charge for whatever he provides that relates to an inquest, but the reference to ‘other persons’, and to documents ‘other’ than inquisitions and depositions, suggests that this cuts both ways.

It is now common for NHS trusts, social services authorities and the like to be required to provide documents to the coroner. Usually, of course, that is done without demur and, crucially, without charge. Where, however, the coroner declines to reciprocate, or where he gives far less than he receives, public bodies might have something to gain by issuing invoices of their own.

Clearly, a coroner has ways of seeking documents that have been withheld. He might, for example, issue a summons for their production. It is sometimes possible, however, to have such a summons set aside, and the more so if the reason documents haven’t yet been provided is simply because the coroner hasn’t sent his cheque.

Because of the 2002 regulations, there would appear to be nothing to prevent an invoice being issued for copy documents that have already been disclosed to a coroner. If those documents represent five years-worth of medical records, say, the financial gain could be considerable. There might also be deterioration in relationships, of course, and that too will have to be taken into account. But there might also be a change in attitude: faced with the prospect of having to pay for everything they receive, some coroners might be a little more careful about what they demand.

Some mental health claims will now be easier to defend, and correspondingly harder to bring

Where he says he is the victim of acts performed under the Mental Health Act, anyone wanting to claim damages will now face a more difficult task. That is the result of an interlocutory decision in Johnston v The Chief Constable of Merseyside Police [2009] EWHC 2969 (QB), which concerned a proposed claim by a man who had been apprehended by the police.

In January 2006, Mr Johnston, who has a history of mental health problems, was at a property on Merseyside. An occupier of the property became concerned about his behaviour and summoned an ambulance. In accordance with usual practice, the police attended as well. Mr Johnston acknowledged that he had needed medical help, but said he had not wanted the police to be called.

On the basis of the witness statements and other evidence, there is a profound conflict between the parties as to what happened next. It appears to be common ground, however, that Mr Johnston was sprayed with CS gas and sustained severe blistering to the skin on his face, left ear and chest. He was detained, put in handcuffs and taken to hospital, but he was not subsequently charged with any criminal offence.

Mr Johnston alleges that these acts amounted to false imprisonment and assault. The Chief Constable, however, claims they were covered by section 136 of the Mental Health Act 1983 (MHA), which applies where someone who appears to be suffering from mental disorder is found in a public place, and permits a constable to take that person to a place of safety. Under section 139(2), no claim concerning the use of MHA powers may proceed without the permission of the High Court. The Chief Constable argued that Mr Johnston should be denied such permission.

The leading authority on permission claims of this kind is still Winch v Jones [1986] 1 QB 296, in which Sir John Donaldson, MR said, “The issue is whether, on material evidence immediately available to the court, […] [the claim] deserves the fuller investigation which will be possible if [it] is allowed to proceed.” Subsequently, the House of Lords said that by this test, “the threshold for obtaining leave under section 139(2) has been set at a very unexacting level […] an applicant with an arguable case will be granted leave.” (Seal v Chief Constable of South Wales Police [2007] UKHL 31, per Lord Bingham at [20])

For the Chief Constable, it was argued that, 25 years on, the Winch v Jones test should be tightened. It was noted that the Civil Procedure Rules now provide, amongst other things, that summary judgment may be given where a claimant “has no real prospect” of success (rule 24.2(a)(i)).

Notwithstanding the changes wrought by the CPR, the judge, Mr Justice Coulson said “it would be wrong to modify in any significant way” the Winch v Jones test. (See [12]) He went on, however, to permit himself one modification, noting that it would be “absurd” for a court to grant permission under section 139 where, had it asked itself the “CPR Part 24 question”, it would have concluded that the proposed claim had no real prospect of success. (See [13]) For that reason, the judge said the CPR question should indeed be asked upon any claim under the MHA. (See [14])

In fact, Coulson J concluded that the Mr Johnston’s proposed claim did have a real prospect of success, and he therefore granted the necessary permission under section 139. (The proceedings also included a limitation point, which, again, was decided in the claimant’s favour.)

It isn’t every potential defendant whose position will be strengthened by this decision. For esoteric, historical reasons, no permission has ever been required for proceedings concerning the acts or omissions of the Secretary of State or the NHS under the MHA. (MHA, section 139(4)) Where a claim relates to the use of section 136, however, or to the initial decision to detain a patient in hospital, this case will make a difference.

The Winch v Jones test for permission under section 139 has not been displaced. In fact, it is now considerably tighter, with a potential claimant having to show that his case is not merely arguable, but that it has a real chance of success. That is a palpable change, whose effect might well be to forestall claims that would otherwise have proceeded all the way to trial. And plainly, therefore, the change is a good deal more ‘significant’ than the judge was prepared to allow in Mr Johnson’s case.

The DoLS gather speed

The Deprivation of Liberty Safeguards are currently being used far less often than the government forecast. Eight months after they were introduced, however, the DoLS have already begun to produce a body of case law.

Some judgments depend entirely on the facts of the case, but some are of much wider relevance. (DCC v KH and others, 11 September 2009; GJ v The Foundation Trust and others, 20 November 2009) In recent weeks, for example, Court of Protection judges have:

* Suggested that to transport an incapable person 100 miles (on a journey that was likely to take 2.5 hours) would be simple restraint, and not a deprivation of liberty, and so be covered by section 5 of the Mental Capacity Act 2005.
* Suggested that where a DoLS authorisation is in place, it will even permit a patient to be returned to the place in which he can be deprived of liberty.
* Ruled that when someone has to decide whether a patient could be detained under the Mental Health Act (and so be fall outside the DoLS), it is his view that counts, not the view of some notional reasonable man.
* Established a procedure to be followed by decision-makers in such circumstances.
* Given guidance on the approach to be taken when deciding whether a mental health patient objects to his care (and therefore can’t be brought within the DoLS).
* Confirmed that someone in a care home (as opposed to a hospital) who is receiving mental health care can be subject to the DoLS, even though he objects to that care.

It's too early, of course, to make generalisations. At the moment, however, the courts do seem to be taking a restrictive approach to what it means to be deprived of liberty. It seems that section 5 of the Mental Capacity Act allows doctors, nurses and social workers to do everything they could have hoped and more besides. Experience suggests, however,that the pendulum will start to swing back at some point. It's likely to be a case that does it, and there's a few of them coming down the line.

Are police using the Mental Health Act to deal with public disorder?

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Where a person is in a public place and seems to be suffering from mental disorder, a constable may arrest him and take him to a place of safety. Once there, the person may be held for up to 72 hours, while he is assessed for detention under the Mental Health Act.

The relevant power is contained in section 136 of the Act and there have long been concerns that in some cases, mentally disordered people are present in a public place only because they have been enticed there by the police. Now, we have to ask whether section 136 is being used against people who aren’t even suffering from mental disorder.

This question is raised by the latest statistics on the use of the Mental Health Act. Anyone arrested under the Act may be taken either to a hospital or to a police station. The new statistics concern only the first group of people (which is probably smaller than the second), and they show that in the year to April 2009, the section 136 power was used almost 8,500 times. That represents an increase of 20 per cent on the year before, and of more than 300 per cent over the decade.

Perhaps there are more mentally disordered people outside hospital, and perhaps more of them find their way into public places. And yet the new statistics show that the number of people detained under the Mental Health Act has gone up, by two per cent in a year and by six per cent over the decade.

And the conversion rates are equally troubling, for of the people held in hospital under section 136, almost three-quarters were not detained once they had been assessed. That figure is itself up a quarter on the previous year, and by 330 per cent over the last ten years. Only 1,751 of these people were subsequently detained under section 2 or 3, which means that anyone taken to hospital as a place of safety is almost four times less likely to be discharged than to be detained.

These statistics concern only a minority of people arrested under section 136, yet they beg some uncomfortable questions: are constables really getting it so wrong? Are the signs of mental disorder so hard to discern, or is there another possibility? Could it be that the Mental Health Act arrest-power is being used to deal with people who are merely troublesome or inconvenient; that in many cases, it is directed at public - not mental - disorder?

Some mental health patients might have missed out on tribunal hearings they were entitled to

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Where a detained patient is placed on compulsory community treatment before his case can be heard by a tribunal, he won’t have to make a fresh appeal. That was the decision of the new Upper Tribunal in an appeal considered recently in its Administrative Appeals Chamber. (AA v Cheshire and Wirral Partnership NHS Foundation Trust, ZZ and the Secretary of State for Health [2009] UKUT 195 (AAC))

The patient concerned had been detained in hospital under section 3 of the Mental Health Act 1983 (MHA). An application for his discharge was made to the inelegantly named First-tier Tribunal (Health, Education and Social Care Chamber) - the successor to the Mental Health Review Tribunal – but by the time it could be heard, the patient had been discharged from hospital onto Supervised Community Treatment (SCT). So-called community patients have a separate right of access to the tribunal, so the question here was whether the original application would survive. The Upper Tribunal held that it would, and that the First-tier Tribunal, which decided that the application had lapsed and therefore refused to consider the patient’s case, had made an error of law.

Supervised Community Treatment was introduced in amendments to the MHA made in November 2008, and the Upper Tribunal said the wording of those amendments was clear: the First-tier Tribunal may discharge a community patient, even though he was still detained in hospital when the relevant application was made. Yet earlier decisions had suggested something different.

In the case of M, too, a fresh application was held to be unnecessary and a tribunal was ordered to continue to hear a patient’s case, even though his status had changed. (R v South Thames MHRT, ex parte M [1998] COD 38, QBD) The court said the patient’s right to a tribunal arose not from his detention, but from his admission, which happened in a single moment of time. In that case, however, the change – from section 2 of the MHA to section 3 - had been relatively un-dramatic, and the patient had remained detained in hospital throughout.

In cases involving more profound change, the courts have generally taken the view that an existing tribunal application will lapse. In SR¸ for example, a patient had been discharged from detention under section 3 of the MHA and placed on supervised discharge by the time his hearing came round. The Administrative Court held that a fresh application would be required. (R (SR) v MHRT [2005] EWHC 2923 (Admin)) It did the same recently in MN, a case concerning a man who had been transferred to a mental health hospital from prison. Special restrictions applied to him when he made his tribunal application, but they had fallen away by the time it was ready to be heard. The court said this change in his status was highly significant. (R (MN) v MHRT [2008] EWHC 3383 (Admin))

The circumstances of the new case resemble those of the last two - particularly SR, for although SCT is not the same as supervised discharge, patients leaving detention for either would make a similar journey. And there was another reason to believe that in AA, the Upper Tribunal Judge would decide that a fresh application was required: when giving judgment in an earlier case, he had suggested precisely that. (Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4) His comments were obiter, however, and the judge did not consider himself bound by them.

This case was not, however, the same as its predecessors. Neither SR nor MN concerned SCT, nor was the legislation in either case so clear as it was here. So clear, indeed, that the judge was surprised that the First-tier Tribunal failed to notice it. The case was remitted for reconsideration. The tribunal will indeed have to decide whether the patient should be discharged, this time from SCT.

Proceedings such as these would have been inconceivable before last November: we have only recently lost supervised discharge and gained the First-tier and Upper Tribunals and Supervised Community Treatment. The case is therefore completely emblematic of the Mental Health Act changes made a year ago.

At first sight, this decision of the Upper Tribunal appears to confound established authority: the nature of a change-of-status is not, after all, the key determinant of tribunal rights. The decision is, however, likely to be significant for many community patients - not, perhaps, those that made a fresh discharge-application when they left hospital, but certainly any that imagined their tribunal applications had lapsed and so did not refresh them. It seems those patients, too, were entitled to their day in court.

Suicide by advance decision

Kerrie Wooltorton died because medical professionals decided not to treat her. She had made an advance decision, refusing life-saving treatment. When she arrived at hospital, having poisoned herself for the tenth time, the doctors took the view that her wishes were paramount and to treat her would have been an assault.

Now, however, the Catholic Bishops' Conference of England and Wales has said that it is 'crystal clear', on the basis of paragraph 9.9 of the code of practice to the Mental Capacity Act, that any advance decision framed as a means to commit suicide does not have legal force. I'm afraid I don't agree.

We have to remember, first, that these are the words not of the Act itself, but of the code of practice to the Act. Whilst the code must be given respect, it is simply the government's guidance on the statute. I'm not sure it sets out to make anything 'crystal clear'.

In fact, and with respect to the bishops, I don't think the code says what they say it says. The passage in question is about capacity: in order to make an advance decision that will be binding upon others - so that they cannot give you the treatment you don't want to have - you must possess the necessary mental capacity. All the code says is that if someone is clearly suicidal when they make their advance decision, that may raise doubt about their capacity. There are two points to bear in mind.

First, I'm not sure it has been proved that Ms Wooltorton was suicidal when she made her advance decision. She must, of course, have been considered incapable at the point she presented for treatment (otherwise she would have been asked whether she consented to treatment and the advance directive would have been irrelevant). But that is a quite different thing.

Secondly, all the code says is that in those circumstances doubt might be raised about the patient's capacity. In fact, any such doubt might be allayed by the other circumstances of the case, in so far as they are known to health care providers.

The clinicians who cared for Ms Wooltorton will speak for themselves on this point, but it seems likely they will say that they were satisfied on reasonable grounds that her advance decision was both valid and applicable, and, necessarily, that she was capable when she made it. In other words, they will say that any concerns raised by the code were allayed by their knowledge of the facts of the case. That seems to me to be a reasonable stance. The clinicians, after all, treated Ms Wooltorton; the bishops did not.

The same passage of the code of practice says something else: "It is important to remember that making an advance decision which, if followed, may result in death does not necessarily mean a person is or feels suicidal. Nor does it necessarily mean the person lacks capacity to make the advance decision" [emphasis added]. I don't think this helps the bishops at all. It certainly doesn't make for the 'crystal clarity' they seem to think they have found.

In fact, the position is relatively clear: the MCA says that if, when capable, a person has made a valid, applicable advance decision, the treatment specified in that document cannot be given to him or her. If treatment is given in defiance of the advance decision it might well be an assault and result in challenge under the criminal and/or the civil law, and also in professional disciplinary proceedings.

In my view, the statutory provisions about advance decisions have a delicate balance to strike, but they do that admirably.