Bickering (or the ever decreasing circle of life continues)

[Grateful to @dilettantevoice for highlighting this case to me on Twitter]

You may recall the Court of Appeal taking Mostyn J to task for taking them to task for taking him to task.

https://suesspiciousminds.com/2015/10/22/ever-decreasing-circles-court-of-appeal-take-mostyn-j-to-task-for-taking-them-to-task-for-taking-him-to-task/

Well, none of you thought that it would end there, did you?

Re CD 2015

http://www.bailii.org/ew/cases/EWCOP/2015/74.html

An exceptionally tricky case, and one absolutely can’t underestimate just how difficult a job High Court Judges have to do. This one involved a woman with very severe mental health problems, who after she stabbed herself in the stomach, the hospital found that she had tumours in her stomach that needed to be removed. Although the woman was detained under the Mental Health Act, the power to perform treatment against a person’s will under that Act is really confined to treatment for their mental health, and this was a physical treatment. As the woman would be under anesthetic at the time, the High Court has previously ruled that this would be a deprivation of liberty.

A NHS Trust v A [2013] EWHC 2442(Fam) [2014] Fam 161

Additionally, there’s the complication of some wording in the Mental Capacity Act which suggests that a deprivation of liberty can only be dealt with under the Mental Health Act if the person is detained under the Mental Health Act.

• he confusion surrounding the main test is mirrored by the confusion that the interface with the MHA gives rise to. I recently have had to grapple with this in Re A [2015] EWCOP 71. Mr Justice Baker has given a characteristically exhaustive judgment on the subject in A NHS Trust v A [2013] EWHC 2442(Fam) [2014] Fam 161 as has Judge Parry in A Local Health Board v AB [2015] EWCOP 31. The confusion arises from the highly ambiguous and double negative laden terms of para 3(2) of Schedule 1A to the MCA 2005. This states:

“P is ineligible if the authorised course of action is not in accordance with a requirement which the relevant regime imposes”

• In this case CD is P. “Ineligible” means ineligible to be deprived of liberty by the 2005 Act. The “authorised course of action” is the surgical removal of the ovarian masses. The “relevant regime” is the MHA regime whereby CD is compulsorily detained in a mental hospital. So, for our purposes, para 3(2) reads:

“CD is ineligible to be deprived of liberty by the 2005 Act if the surgical removal of the ovarian masses is not in accordance with a requirement which the MHA regime whereby CD is compulsorily detained in a mental hospital imposes.”

• Mr Auburn rightly says that there are two ways of reading this which give rise to directly contradictory results. The first is in a pitilessly literal way, as argued by Mr Matthewson. It is this: if the surgical removal of the ovarian masses is not in accordance with a requirement of the MHA regime whereby CD is compulsorily detained in a mental hospital then CD is ineligible to be deprived of liberty by the 2005 Act. It isn’t, he says, so she is ineligible and so the necessary orders have to be made under the inherent jurisdiction of the High Court. The problem with this interpretation is that it gives rise to a result directly contrary to the intention of the statute and to the express terms of the Code of Practice, as I explained in Re A at paras 10 – 14 (accepting the submissions not only of Ms Butler-Cole but also of Ms Dolan, on that occasion instructed by the Official Solicitor).
• The alternative interpretation, which I adopted in Re A, and which I maintain to be correct is this: if the MHA regime whereby CD is compulsorily detained in a mental hospital imposes a specific requirement for dealing with the problem of the ovarian masses then CD is ineligible to be deprived of her liberty under the 2005 Act for the purposes of dealing with the problem by a different procedure under that Act. It doesn’t (obviously) so she isn’t ineligible. As I said in Re A this is plainly what the scheme of section 16A and Schedule 1A intends and the matter is conclusively confirmed by paras 4.50 and 4.51 of the Code of Practice. In my judgment it would be ridiculous if the whole case had to leave the Court of Protection with its statutory powers and enter the High Court exercising common law inherent powers by virtue of a pedantically literal reading of para 3(2).
• The orders which I make will be made by me sitting in the Court of Protection under powers granted by Parliament in the MCA.

Mostyn J is utterly and completely right here, the wording of this piece of the legislation is ghastly (double-negatives are really not something that you want in a piece of legislation anywhere, particularly about something so serious) and it has left a serious lacuna in the law.  And you know how High Court Judges tend to solve lacunas in the law – that’s right, the ‘theoreticaly limitless powers of the inherent jurisdiction’  [Though not here, Mostyn eschewing Baker J’s inherent jurisdiction solution to say instead that the power must really remain under the MCA]

A very tricky case, and almost all of what Mostyn J says in the judgment is careful, apposite and fair.

Unfortunately, this passage decides to resurrect the quarrel with both the Supreme Court in Cheshire West, and the Court of Appeal

In KW & Ors v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054 at para 32 the Court of Appeal stated “even if Cheshire West is wrong, there is nothing confusing about it”. It may seem that way from the lofty heights of the Court of Appeal; and of course the literal words of the Supreme Court’s test are perfectly easy to understand. But for we hoplites who have to administer it at first instance the scope and ramifications of the test are, with respect, extremely confusing. As Mr Matthewson, instructed by the Official Solicitor for CD, rightly stated “anyone who deals with this day by day knows this is confusing”. What of the situation where, as here, the protected person actively and fervently expresses the wish to undergo the procedure that is said to amount to a deprivation of liberty? What of the situation, as was the case in Bournemouth Borough Council v PS & Anor [2015] EWCOP 39, where the protected person shows no inclination whatsoever to leave the home where he is cared for round the clock? What of the situation where the protected person is seriously disabled, perhaps bedridden, perhaps in a coma, and is thus physically incapable of exercising the freedom to leave? The answers I received from the Bar when discussing these scenarios belie the blithe suggestion that “there is nothing confusing” about the test. I do not accept the criticism that my approach to these cases is “distorted” by my “passionate” and “tenacious” belief that Cheshire West is wrong. Rather, it is a loyal approach which tries to apply literally and purposively the Supreme Court’s test while at the same time pointing out how confusing and curious it is, to say nothing of the cost it causes to the public purse

I think that there IS an argument about whether Baker J’s decision in Re A (that the surgical procedure amounts to a deprivation of liberty) actually meets the test in Cheshire West – I think that one can argue it either way and a strong case can be made for if a Court has declared that the procedure is in P’s best interests despite a lack of consent that the patient has had sufficient safeguards and an additional authorisation of a Deprivation of Liberty isn’t necessary.

It is also quite right that we now have a definition of deprivation of liberty which is utterly unworkable in practice due to resource implications (as we have seen, if every LA issued every deprivation of liberty application that they need to on the wording of Cheshire West, the Court would spend the next five years dealing with this years cases, and so on), and that the MCA on this particular issue is badly in need of reform. Such reform not likely to hit us until 2017 at best.

But the Rule of Law is the Rule of Law.  Whatever one might think of the Cheshire West test (and personal opinions and critiques of it are perfectly valid – it wasn’t a unanimous decision on all issues in the Supreme Court itself), the test has been set and it is now to be applied.  In the first of the two examples, it is really plain that the absence of resistance from P if they lack capacity is neither here nor there, that’s not a legitimate part of the test. After all, that was the very issue in Bournewood that led to the development of the MCA in  the first place. The latter question of whether you assess whether a person is being deprived of their liberty by looking at their physical characteristics has been squashed by the Supreme Court.

[There IS , I think an argument about whether someone who is physically prevented temporarily from getting up to leave – under anaesthetic for example, or that they have a broken leg that will heal, meets the Cheshire West test. But that’s for a Judge to determine when they are faced with an application of the test to those particular facts]

It is a fine line between a Judge being free to criticise the law when it is resulting in unfairness and staying out of politics and just applying the law as it is to the facts of the case.

I’m aware that I am being hypocritical here – because I do think that Judges can and should speak out when the law at present is unfair and makes unreasonable outcomes when it is applied.  Because when Mostyn J and others have attacked LASPO, I’ve supported and applauded them. That is a law whose application is currently unfair (particularly the Legal Aid Agency’s approach to granting exceptional funding where human rights require it, but ignoring when Judges tell them that this particular case would breach a person’s human rights if funding were not given).  I also disagree with LASPO itself, but I’m stuck with it unless and until Parliament changes it. So, am I just as unreasonable as Mostyn J considers the Court of Appeal to be – given that I’m happy for him to critique and attack the law when I agree with him, but criticise him when I think the law is right?

Damn, I’ve painted myself into a corner here.

Perhaps what we need is a case with the citation Mostyn J v Court of Appeal  (to be decided in the Supreme Court)