England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		9 October 2007

1. MR JUSTICE CHARLES: I heard this case in September and at the end of a four-day hearing in two tranches of two days I gave an ex tempore judgment and granted declaratory relief. That judgment has now been transcribed and should be read with and as background to this judgment.
2. The declaratory relief I granted is, of course, also relevant background. Those declarations were granted under the inherent jurisdiction. On 1 October 2007 the parts of the Mental Capacity Act 2005 creating and giving statutory powers to the new Court of Protection came into force. The relevant transitional provisions provide that cases commenced under the inherent jurisdiction should continue to be dealt with under that jurisdiction, but it was in my view correctly common ground before me that I have power to transfer the proceedings commenced before 1 October 2007 to the Court of Protection and deal with them as a judge of that court. Under the Rules of the Court of Protection I have power to dispense with any requirement of those Rules.
3. At the last hearing SB, who is the mother of MB, the subject of these proceedings, appeared in person. At this hearing she has not appeared. She sent in a medical certificate showing that she had damaged her knee. She did not seek an adjournment. She has been in regular telephone contact with my clerk and has sent me and others a number of faxes. On the second day of the hearing she informed my clerk that her knee was much better. However, the news today is that the drugs she is taking are making her feel unwell.
4. In a number of her letters, SB refers to and relies on the Mental Capacity Act and appears to be of the view that it now applies to all aspects of this case, which it would not, absent a transfer of the proceedings to the Court of Protection. The general impact of her letters is that she wishes the new statutory regime to apply to the issues raised in these proceedings and in respect of the day-to-day affairs of MB and herself.
5. For different reasons, the other parties invite me to transfer the proceedings to the Court of Protection. Their primary reason relates to the statutory power given to the Court of Protection by section 15 of the Mental Capacity Act. I shall return to this.
6. In my view, the coming into force of that statutory power; the point that this case is likely to go on for some time and to raise points in respect of the day-to-day lives of both MB and SB that engage the Mental Capacity Act; the interrelationship between those statutory provisions and other statutory provisions and, in particular, the provisions and effects of the Mental Health Act and SB's general position warrant a transfer of the present proceedings to the Court of Protection. I indicated during the hearing that that is what I would do. I now formalise that position and make that transfer.
7. For the avoidance of any doubt in the future, I give permission for the transferred proceedings to continue in the Court of Protection as if permission had been given for them initially. Additionally, I join MB as a party to those proceedings and confirm his representation by the Official Solicitor in those proceedings notwithstanding SB's objections to steps taken by the Official Solicitor in connection with this matter. I also direct that all the evidence in the proceedings initiated under the inherent jurisdiction should stand as evidence in these proceedings. I also join the first defendant in proceedings for judicial review (which I shall come back to), OLDT, as a defendant to these proceedings. That was not objected to by that body.
8. The judicial review proceedings I have just mentioned were initiated by MB acting through the Official Solicitor. OLDT is the public body that is responsible for the doctors who before the last hearing carried out an assessment under the Mental Health Act and who have done so since the last hearing and my judgment and thus, in particular, Dr B who is referred to in my first judgment. It is also the public body who have immediate responsibility for the unit referred to in my first judgment and is thus the body commissioned or effectively commissioned by the PCT to provide a place for MB at that unit. It is, therefore, them rather than the PCT who previously were advancing arguments effectively on behalf of the unit who speak for the position and requirements of the unit as well as representing in the judicial review proceedings the doctors who have carried out recent and other assessments under the Mental Health Act.
9. The second defendant to the judicial review proceedings is the County Council responsible for the social worker who took part in that recent assessment. That Mental Health Act assessment followed my refusal on the last occasion to make any declarations concerning restraint and detention of MB and thus to make declarations that provided that MB could be taken to the unit, and to keep him there, against his will. I shall return to the most recent assessments under the Mental Health Act and the judicial review proceedings later.
10. The transfer of these proceedings to the Court of Protection has the consequence that I am now being invited to exercise a statutory jurisdiction conferred on the Court of Protection by the Mental Capacity Act and not the inherent jurisdiction. This means that I need to revisit the declarations I have already made. As appears from the order I made in September that is something that I would have to have done under the inherent jurisdiction in any event.
11. Very briefly, as appears from my September judgment, the subject of these proceedings is MB and a short summary of the history is set out in that judgment. The declarations I made were as follows:

"1. MB lacks capacity to make decisions as to his residence, care assessment and treatment for his learning difficulties, epilepsy, autistic spectrum disorder behavioural problems and as to the nature and extent of his contact with SB.

2. It is lawful, as being in MB's best interests, for him to reside at the Wincroke Unit of the Ridgeway Partnership Trust until further Order of the Court.

3. It is lawful, as being in MB's best interests, for the responsible healthcare professionals at the Wincroke Unit to assess and treat MB's learning difficulties, autistic spectrum disorder, behavioural problems and epilepsy at the Wincroke Unit, the assessment and treatment of his epilepsy being under the guidance of Dr Nicholas, Consultant Neurologist from Wexham Park Hospital.

4. It is lawful as being in MB's best interests for him to be transferred from his current residence at Monument Cottages to the Wincroke Unit in accordance with the Transfer Plan (attached).

5. It is lawful being in MB's best interests that his contact with SB whilst he resides at the Wincroke Unit be restricted as to its location, duration and whether it is supervised in the discretion of the healthcare professionals at the Wincroke Unit. It is intended that MB have telephone contact with SB twice a week initially at a time to be arranged between MB, SB and the healthcare professionals at the Wincroke Unit and that SB and MB have supervised face to face contact on the day of his monthly Care Programme Approach meetings. It is intended that the arrangements for contact will be reviewed at the monthly Care Programme Approach meetings which will be convened to discuss MB's assessment and treatment and that a decision to vary contact will be made following consultation with the Official Solicitor.

AND IT IS ORDERED THAT:

6. SB be forbidden from having contact with the healthcare professionals responsible for the care of MB save as follows:

(a) SB shall be entitled to raise any issues she has concerning MB's treatment at the Wincroke Unit or MB generally to the Unit by making not more than (i) two telephone calls when she speaks to the relevant member of the team caring for MB, or (ii) sending two faxes or (iii) making one telephone call when she speaks to a relevant member of the team caring for MB and sending one fax, per week, upon the understanding that Dr A or one of his colleagues shall respond to those issues by telephone SB once per week following the ward round.

(b) SB shall only be entitled to contact Dr Nicholas by using his land line telephone and fax number at Wexham Park Hospital.

7. SB be forbidden from discouraging MB from going to the Wincroke Unit or from co-operating in his transfer and his assessment and treatment there.

8. SB be forbidden from criticising to MB, the staff, facilities, care and/or treatment at the Wincroke Unit.

9. SB be forbidden from telling MB that any other placement is superior to Wincroke Unit in any respect.

10. SB be forbidden from discouraging MB from taking up any offer of care or treatment made to him by the health and social care professionals responsible for MB at the Wincroke Unit.

11. SB be forbidden from having contact with MB whilst he resides at the Wincroke Unit save as agreed in writing with the healthcare professionals at the Wincroke Unit.

12.1 The orders in paragraphs 6,7,8,9,10 and 11 hereof shall continue until further order of the court (and shall have a penal notice attached to them).

12.2 There be liberty to any of the parties to these proceedings and to the Ridgeway Partnership Trust to apply to restore this matter to seek directions or other relief, including a variation or discharge of the orders in paragraphs 6,7,8,9,10 and 11 hereof. Such an application to be made no one working day's notice if practicable."

12. As I have already mentioned, on that occasion I did not grant any declaratory relief relating to the restraint and detention of MB to procure his transfer to the unit mentioned in those declarations and his continued assessment and/or treatment when he arrived there. If it is not already quite clear from what I have said, such declarations are sought now. Before turning to the issues relating to them, as I have indicated, I shall revisit the earlier declarations in the light of the events that have happened since September and the change in the jurisdiction I am exercising.
13. The declarations were accompanied by a transfer and care plan. I also wrote a letter to MB. That letter was based on a helpful draft provided by the parties after consultation with relevant doctors. During September MB telephoned my clerk and, as I understand it, left a message on my clerk's answering machine. I record that I have not heard that message and it is no longer available. However, since that order was made, MB has refused to move voluntarily to the unit, although he has visited it on the basis of an assurance that he would not be kept there. He has also been seen by the solicitor appointed by the Official Solicitor, who has reported to me the upshot of that meeting. From that report and, indeed, from the recent Mental Health Act assessment report, it is clear that, as before, MB (it seems with the support of SB) maintains that he should live in a house acquired with the assistance of SB and thus in the community, and that he should continue to receive support equivalent to that presently being provided for him by the claimant. That is 7 days a week, 24 hours a day support. In the meantime, his expressed wish is that he should stay where he is. Thus his expressed wish is for a continuing placement in the community.
14. He also expressed the view that the NSE would not obtain possession of his present cottage, and some of SB's letters indicate that she is still of that view and that if the NSE did seek to enforce the order they have for possession it would be acting unlawfully. MB's expressed view was that he would have the NSE arrested and he would not let them kick him out. The upshot of that is that there is a high risk that MB will not move to the unit on a voluntary basis and his eviction will be a traumatic event for him. I will return to this.
15. Turning now to the heads of relief granted on the last occasion. Capacity: for present purposes, the statutory provisions and thus the principles set out in section 1 and the provisions of sections 2 and 3 essentially codify the position at common law and thus the approach I took before. I confirm that for the reasons given in my last judgment MB lacks capacity to make the decisions that are the subject of the declarations sought. I confirm that nothing arising from the views of the doctors who have carried out the most recent Mental Health Act assessment alters this conclusion.
16. The moves to and the assessment and treatment at the unit and thus the declarations in paragraphs 2, 3 and 4. For present purposes the best interests test under the Mental Capacity Act effectively codifies the approach under the inherent jurisdiction. See, for example, section 4. As appears from that section, the decision maker is directed to have regard to a number of matters, included in them being the views and wishes of MB (and matters that would have been likely to inform him) and the views of SB. In my last judgment I dealt briefly with SB's reliance on powers of attorney and the prospect that MB would seek to give her a lasting power of attorney and that she would then seek to have it registered under the Mental Capacity Act. One of her letters indicates that that is a course that is being taken. As I indicated previously, considerable doubt exists as to MB's capacity to enter into that document but, in any event, as I have said, his entry into it, and its registration, would not in my judgment make SB a decision maker on the issues presently before the court. The decision maker is the court.
17. In my last judgment I approached this issue as to best interests, as a matter of reasoning, by putting initially on one side the point that MB was facing an imminent threat of eviction from his present accommodation. In my judgment, in considering this issue whether in the context of a best interests test, or in the context of whether MB should be detained in a hospital pursuant to the Mental Health Act, that is the correct approach. It is one that, therefore, approaches the matter on the basis that both options are practically available and is not influenced by issues relating to urgency of a move. If on that basis the conclusion reached was that given a choice between MB remaining in the community and being placed in a hospital, which might be the unit or might be the David Lewis Centre or might be MIETS as indicated on the last occasion, it seems to me that at the very least the claimant County Council would be required to seek and support such a placement.
18. Accordingly, a placement in a hospital should not be selected because it is available and convenient for the relevant public authorities in circumstances when, having carried out the appropriate judgmental and balancing exercise, the court has concluded that the best interests of the relevant person are served by him remaining in the community.
19. For the reasons I gave in my last judgment, I remain of the view that it is clearly in MB's best interests to move from supported accommodation in the community to an appropriate hospital placement, firstly for assessment and then for assessment and treatment. It follows that I reject the view advanced by SB, and MB's wishes, that MB's best interests would be served by him remaining in the community and if necessary a move to a house in the community with support as presently provided by the claimant County Council.
20. Although MB has been at his present placement for some time and violent incidents have not been regular or, happily, had a serious consequence, I agree with the evidence of Dr H that having regard to the history and the updated position, the situation that continues to exist in the cottage is one that can fairly be described as a situation in which a disaster is waiting to happen. I confirm that in my view the balancing act comes down firmly in favour of a move for MB from a community placement to the unit for assessment on the basis that that assessment could lead to a wide range of results. That range was confirmed by Dr A on the last occasion and certainly could include a return to the community or, for example, a placement at the David Lewis Centre.
21. This was essentially, as I understood it, common ground between all the expert witnesses, including the doctors who had carried out the recent assessment under the Mental Health Act and who, in doing so, have highlighted a point made by Dr A on the last occasion, that the benefits of a placement in the unit would be enhanced if MB went there voluntarily, and potentially those benefits could be seriously damaged if he was compelled to go to the unit and compelled to remain there. On the last occasion Dr A, and thus the PCT, effectively on behalf of the unit and the PCT, recommended that if MB would not go to the unit voluntarily he should be compelled to go. The doctors who have carried out the recent Mental Health Act assessment are, as I understand it, effectively of the same view (and this is why I said that there is effectively common ground) because although they support and express the view that further attempts to persuade MB to go to the unit voluntarily should be carried out, and are not at present prepared to make an application under the Mental Health Act or commit to making such an application, they do support the submissions made to me on behalf of the OLDT that I should make a declaration that has the effect that MB can be compelled to go to the unit and be compelled to stay there.
22. In my judgment, the risks pointed out in the recent Mental Health Act assessment mirror those which I considered on the last occasion. The risks attendant on a compulsory move to and stay at the unit and the possible disadvantages and harm of such a compulsory move to the unit do not lead to the conclusion that it should not take place in MB's best interests. Indeed, one of the main problems is assessment and management of MB's behaviour when he opposes a particular course of action. In short, in my view there is a vital and urgent need for an assessment as proposed at the unit.
23. Against the background of that conclusion on best interests, the point arises that the claimant County Council can lawfully and properly assert that they do not have a duty to provide continuing support to MB because he should go to the unit. That is a point which seems to me to be correct and it adds to the urgency of the situation because that local authority are expending much needed funds in continuing to provide that support, even though it might be outside the ambit of their statutory powers and duty. Also against that background, the imminent threat to MB's present accommodation adds urgency and supports the view that the available place at the unit should be taken, and the course of waiting to see if another placement would become available at another unit, such as the David Lewis Centre, should not be pursued for the reasons I gave in my last judgment.
24. The NSE have now given a date of 26 October 2007 as the backstop date for the execution of the warrant for possession that they have. Attached to one of the letters sent in by SB during the course of these proceedings is a copy order showing the order for possession that was made. That is dated 6 June 2006 and indicates that the order was made without a hearing and that the parties may apply to set it aside. As appears from its date, it was made some time ago. I am satisfied on the information presently before me that the NSE have a warrant and are in a position to evict MB on 26 October 2007 as they have stated to be their intention. As to their approach and attitude, I covered this in my earlier judgment.
25. The declaration in paragraph 5 concerning, for example, contact with SB at the unit: The range of statutory powers are either the same or equivalent to those which I exercised before. Here I refer to sections 17 and 47 of the Mental Capacity Act and to section 37 of the Supreme Court Act. For the reasons given in my last judgment, I consider that the orders made are in MB's best interest. Paragraphs 6 to 12 of the declaration relate to actions to be taken by SB and forbid her from doing a number of things. Again, for the reasons given on the last occasion, in my judgment those injunctions remain warranted and should continue. Indeed, I would add that my assessment is confirmed both by the amount and the content of SB's faxes during the course of this round of the proceedings. I imagine that the claimant County Council will say that that opens the eyes of others to the matters which they have been dealing with over a long period of time. Again, it seems to me that the relevant statutory jurisdiction for that injunctive relief is to be found in sections 17 and 47 of the Mental Capacity Act and section 37 of the Supreme Court Act.
26. I therefore return to the issues relating to compulsion and detention. As I have already mentioned, on the last occasion I was asked to make, but made no, declarations under this heading. The declarations I made would have complemented and operated in tandem with a compulsory move exercising the powers under the Mental Health Act. At that stage, as appears from my judgment, I was unclear why those responsible for deciding whether an application for admission of MB under either or both sections 2 and 3 of the Mental Health Act had concluded that such an application would not be appropriate. I was then concerned with the exercise of the inherent jurisdiction and thus a jurisdiction which fills gaps in the common law and statute and acts as a safety net. Principles as to when a common law or prerogative power has been displaced or suspended by a statute, therefore, arose for consideration. That issue has been considered in a number of contexts and cases. For example, Harrison v Tew [1990] 2 AC 525 and Laker Airways Ltd v The Department of Trade [1977] QB 643. Other cases in respect of this issue were referred to me.
27. As I have indicated, that position has now changed because I am now being invited, following the transfer of the proceedings to the Court of Protection, to exercise a statutory power conferred by section 15 of the Mental Capacity Act and, in particular, section 15(1)(c), which reads:

"The court may make declarations as to the lawfulness or otherwise of any act done, or yet to be done, in relation to that person."

That is a person who lacks capacity.

28. The first question that arises is whether that power enables the court to make a declaration that compels MB to go to the unit, and detains him there, and thus restricts his liberty. The next question relates to the interrelationship of that power, if it exists, and the powers conferred by the Mental Health Act. In my view, the answer to the first question is plainly yes because:

(a) Such an order is clearly within the language of the subsection.

(b) Such orders may be appropriate and necessary in the best interests of a person who lacks capacity, "P", in a situation when the Mental Health Act has no application at all.

(c) Injunctive relief and declarations have been made, including orders compelling or enabling compulsion in support of decisions and declarations as to a person's best interests in the past and there is nothing in the Act to indicate that a change was intended.

(d) It has been held by Mumby J, and I respectfully agree, that such an order would not be in breach of Article 5 of the ECHR if a number of conditions are met. They are that MB is incapable of making a decision whether or not to go or stay himself; being required to remain in the unit would be in his best interests; the court has declared it to be in the best interests of the person to be taken there (MB) and to be compelled to remain there by using reasonable and proportionate measures, and there is a mechanism for review of MB's capacity and best interests with regard to him remaining in the relevant unit or hospital.

29. As to that, I was referred to two decisions of Mumby J: JE & DE v Surrey County Council [2006] EWHC 3459 (Fam), and City of Sunderland v PS & CA [2007] EWHC 623 (Fam) at 16230 in particular. The first case contains what to my mind is a helpful discussion as to what is meant by depriving someone of his liberty, particularly in paragraphs 76 to 79. I note that that was a case in which counsel who appeared before me on behalf of the Official Solicitor and thus MB and the OLDT also appeared. So far as the City of Sunderland case is concerned, paragraph 30 of the judgment indicates the order that was made, which is essentially similar to the order sought here. In paragraph 23, Mumby J points out that the guidance he gives as to the conditions that should be attached to any such declaration should be dealt with on a case-by-case basis. It is common ground between all counsel before me, and particularly counsel for the Official Solicitor and OLDT who have taken on the main task of dealing with these points, that those decisions of Mumby J are correct and ones that I should adopt and follow.
30. Returning to the statutory provision, the fact that the section by its terms gives the relevant jurisdiction pursuant to the exercise of a judicial discretion does not mean that it would be lawful or proper to exercise it in a given case. The discretion is to be exercised judicially and, therefore, it needs to be exercised by reference to principles that exist and have been established in connection with other statutory provisions, and it will in the future need to be exercised having regard to principles that are developed in relation to the principles and guidance that are developed and decided in relation to the Mental Capacity Act.
31. In my view, an existing principle which is akin to points arising in the exercise of the inherent jurisdiction, when the court was concerned as to the filling of a gap, is to consider in the exercise of a widely expressed judicial discretion what are possible alternatives and, in particular, alternative statutory solutions. So, for example, if Parliament has provided a statutory route containing tests, triggers and safeguards and specific provisions for review and challenge, which is available in a given case or could be available in a given case, it seems to me that that is an important and significant factor to be taken into account by the court, in exercising a widely expressed judicial discretion to effect the same or a similar result.
32. In that context the questions arise: Why should the court exercise its wide discretion when a statutory alternative is open? And therefore, why should the court not refuse to do so by requiring the Applicant and others to utilise and take an available statutory route with all its detailed provisions? To my mind, in the context of the consideration of the deprivation of the liberty of a subject, this point has particular force. Why should the court, and how can it properly, in the exercise of a discretion, which it has, to build in safeguards and procedures relating to review, exercise that power and jurisdiction when Parliament has provided for such matters specifically in other legislation? Alternatively, the question arises whether if the trigger in the other legislation here, the Mental Health Act, is in the view of the court not available so that statutory regime could not be implemented, should the court in the exercise of a wider statutory discretion nonetheless take a course which has the same or a similar result?
33. Translating that to this case:

(a) Why should, or can, the court exercise its Mental Capacity Act powers to detain MB if the same result is available or could be available under the Mental Health Act?

(b) If the Mental Health Act triggers are not, in fact, satisfied and so that Act could not be utilised to detain MB, should the court nonetheless exercise its powers under the Mental Capacity Act?

34. Before discussing those issues further, I shall deal with some further preliminary points. SB has consistently, and still, says that MB does not suffer from any mental disorder or any other mental condition that would trigger the Mental Health Act. Her consistent theme is that that Act does not apply to him and that an earlier admission to hospital under it of MB was illegal. Her position is that MB suffers from complex epilepsy and all of his problems and behaviour flow from that. In support of that contention, as on the last occasion, in her recent correspondence she has referred me to reports of a Professor B, who is a consultant neuropsychiatrist. In my view, as on the last occasion, those reports do not support her contention that the Mental Health Act does not apply, although they do, of course, confirm the common ground between all the doctors that MB suffers from complex epilepsy.
35. I accept the evidence of effectively all of the doctors, including those who have in the more distant past and recently concluded that an application for admission of MB to hospital should not be made under sections 2 and 3 of the Mental Health Act, that he does suffer from a mental disorder for the purposes of section 2 and mental impairment for the purposes of section 3. If, and to the extent that, my understanding of the evidence of Drs B and A, who have carried out the most recent assessment, is incorrect in that respect and they hold a different view, my conclusion on the present evidence is that those conditions in sections 2 and 3 are satisfied.
36. In this context I pause to mention section 48 of the Mental Capacity Act. In my view, that section is at least a pointer in respect of the exercise of statutory discretions available under the Mental Capacity Act, where the court will often be faced with situations that change over time, that the court can focus on and make decisions on the evidence and argument as they presently stand. This has a linkage with issues I grappled with in a case concerning the grant of interim declarations under the inherent jurisdiction, namely NHS Trust v T [2004] EWHC 1279 (Fam). Many orders made in the past under the inherent jurisdiction, and for the future under the Mental Capacity Act, in the course of proceedings have the potential for not being interim orders in the sense that they simply prevent or delay something from happening. Rather, they will authorise something that simply cannot be undone, whether by way of treatment or, in this case, by way of taking MB compulsorily to the unit.
37. At this stage I also pause to comment and confirm, as was urged on me on behalf of the defendants to the judicial review proceedings, that I accept that the issues in the judicial review proceedings remain unresolved both as to issues of fact and issues of law. As to that, the defendants to those proceedings wish to put in further evidence. Their participation in these proceedings has come about within a very short timeframe and I accept that they also wish time to hone and develop their arguments. Thus I expressly accept and confirm that views I express relating to issues in those proceedings and as to matters that will be the subject of argument in them are necessarily preliminary.
38. Returning to the interrelationship of the two statutes, the Mental Health Act and the Mental Capacity Act, the central questions in my view are, firstly, whether I have jurisdiction to make the declaration sought and then, if I do, whether I should make them. I have already indicated that I am not denied jurisdiction by reference to Article 5 of the ECHR.
39. Do I have the jurisdiction? My present and, as I have indicated, necessarily preliminary view is that as between the two statutes in this context the Mental Health Act has primacy. My reasons are:

(a) The Mental Capacity Act by, in particular, sections 5 and 6 contains provisions enabling decision makers on the ground to make best interest decisions and other decisions without going to court. That, it seems to me, is a clear pointer in favour of the conclusion that an application under the Mental Capacity Act should not be regarded as a first step, rather that it should be regarded and considered when other available solutions are thought not to be available.

(b) In my view, the requirement for permission to bring proceedings under the Mental Capacity Act confirms that view. That requirement exists in the context of cases concerning serious medical treatment.

(c) The Mental Health Act provides a comprehensive statutory code and thus safeguards that the court should consider in deciding to exercise its discretion under the Mental Capacity Act should the court decide that it is appropriate to take that route and impose conditions.

40. Those reasons are based on a consideration of the Mental Capacity Act as it is presently in force and was originally enacted. The Mental Health Act 2007 has now been enacted and it makes amendments to the Mental Capacity Act which on present information are due to come into force perhaps a year from now. The changes are detailed and complicated. They are primarily directed to decision makers outside court making decisions as to a person who lacks capacity and the interrelationship of the provisions in the Mental Capacity Act and the Mental Health Act in that context.
41. They also, as I read them, contain provisions which enable disputes relating to the application of those provisions to be resolved by the court.
42. I heard widely divergent submissions as to the meaning and effect of these provisions, which as I have said are due to come in next year. It seems to me that those submissions are likely to be the subject of further consideration when this matter returns for further consideration by the court, either under one or both of the Mental Capacity Act proceedings or the judicial review proceedings relating to decisions made under the Mental Health Act.
43. In my judgment it is unnecessary and inappropriate for me to reach conclusions on those arguments at present, or to comment further on them, save to this limited extent. First, in my view, as a matter of general principle and approach, in the exercise of its discretion now under the Mental Capacity Act the court should take account of the decisions and intentions of Parliament as to how the Mental Capacity Act will operate when it is so amended. That recognises that the present amendments are not in force, but in my judgment gives proper recognition to the fact that Parliament has given thought and guidance to that inter-relationship and has provided for it by the amendments.
44. Additionally, in my view, this is not a situation which Parliament was addressing and identified need for change in, for example, the established interpretation or the established application of an existing statutory provision and in that context deliberately delayed the implementation of the amendment.
45. It seems to me that looked at generally these amendments provide strong support for my present view that it is the Mental Health Act which has primacy.
46. However, in my view all of these points go to the exercise of the discretion conferred by section 15(1)(c) rather than its existence. It seems to me that the statutory provision granting that discretion under the Mental Capacity Act is a free-standing one that coexists with the provisions of the Mental Health Act. In my view even if, in certain circumstances, that will not be the case after the amendments come into force the underlying point remains the same, namely that the two statutory provisions coexist.
47. That means that in answer to the first part of my question, whether this court has jurisdiction to grant the declaration sought, I have concluded that it does, and the limit placed upon that by the Mental Health Act at this stage impacts the exercise of discretion rather than the existence of the jurisdiction.
48. Should I exercise that jurisdiction? On the last occasion I was unclear as to the reasons and position of the doctors who had concluded that an application for admission should not be made under the Mental Health Act. As I have mentioned on a number of occasions a further assessment has now been carried out and one of the doctors who took part in that has again been Dr B. He carried out an assessment together with another doctor, Dr A, and their conclusion is that an application should not be made under the Mental Health Act now, and that the appropriate and correct course is for a declaration to be made pursuant to the Mental Capacity Act; that MB be detained if, after continued efforts to persuade him to go to the unit, he still refuses to go. Part of the reasoning that supports that conclusion seems to me to be based on arguments that have been put before me, rather than matters that were considered by the doctors at the time they made their assessment.
49. It is acknowledged that a challenge to a decision under the Mental Health Act, being a clinical and professional decision, at public law is a difficult one to establish. However, in my judgment the grounds of challenge that are put forward in the judicial review claim to the decisions of both doctors for whom and for which the first defendant in the judicial review proceedings takes responsibility, and of the social worker, which is the reason for the second defendant being in the proceedings, are arguable.
50. In that context I have not forgotten the points made on behalf of the social worker as to the weight the social worker would, and should, give to the views of the doctors. Nonetheless it seems to me that the grounds raise arguable points, which merit a full hearing.
51. They also, in my judgment, potentially raise important points as to the inter-relationship of the Mental Capacity Act and the Mental Health Act. Those would include a consideration of an argument advanced by counsel on behalf of the OLDT that clinical considerations mentioned by Doctors B and A, which on the last occasion were accepted as not being appropriate and relevant factors to take into account in the exercise of the judgments imposed by the Mental Health Act, are matters that can lawfully be taken into account, and therefore found a lawful decision not to make an application under the Mental Health Act for the admission of a person to hospital but to seek declaratory relief under the Mental Capacity Act.
52. At this preliminary stage I record that, in exchanges in court, counsel for OLDT accepted that his preliminary view on the effect of the amendments would be that this wider argument would not be open after the amendments to the Mental Capacity Act come into force.
53. Those arguments went back to, and in part relied on, the points I have already mentioned as to the advantages of persuading MB to go to the unit voluntarily. They also support the view that further attempts to persuade MB to go to the unit voluntarily should be made. As to that, although Dr H remained firmly of the view he expressed on the last occasion, that application should be made under the Mental Health Act, he accepted that those responsible for the relevant decisions should decide whether or not further attempts should be made to persuade MB to go to the unit, albeit that Dr H thought that those attempts would be highly likely to fail.
54. I agree that the advantages that would flow from a consensual or non-compulsory admission to the unit should mean that attempts to persuade MB, and perhaps SB, that MB should go to the unit voluntarily should continue.
55. I was told that both Drs B and A, when they carried out their most recent assessment, were unaware of the imminent risk of MB's eviction. During the hearing Dr B was made aware of this and indeed he helpfully attended during part of the hearing, although he did not give any oral evidence. He was also made aware of the date of 26 October.
56. As I understood it through counsel, there was an acceptance by him that that event, or the fact that it was about to occur, could result in a trigger event and thus the application of the Mental Health Act, it having been decided that a move to the unit as opposed to other accommodation in the community was in MB's best interests. But, at this stage Dr B was not prepared to commit himself to taking that course of action. He also fairly, through counsel, pointed out that even if he were to commit himself to that course of action he could not commit any other doctor to it, and another doctor may disagree with that view and not lend support to an application being made under sections 2 or 3 before, or on the occasion of, that potential trigger event; namely MB's eviction and the common ground that that could have disastrous results for him.
57. In those circumstances I therefore accept and agree with the arguments advanced by the claimant County Council, the Official Solicitor and, as I understood it supported by the PCT, and indeed the argument of the OLDT that as things stand an application would not, or may not, be made under the Mental Health Act.
58. As I have indicated, subject to further argument in the judicial review and/or in these proceedings I have concluded that this is a case in line with the evidence, for example, of Dr H, that an application should be made under the Mental Health Act. I mention that because it means that I am not faced with the problem that this is a case in which I think that trigger is not met and thus as to whether or not in that circumstance I should exercise the discretion under the Mental Capacity Act.
59. So, the problem I am faced with is that the practical situation before me is that the two doctors who have carried out the most recent assessment under the Mental Health Act, exercising their professional judgment and expertise and having regard to the legal advice they have received, do not agree with that view of mine and of Dr H. Also they are not, on the same basis, prepared to make a commitment as to what they will do in the future relating to the Mental Health Act.
60. The pragmatic situation is therefore that the court is not in a position to compel an application for admission under the Mental Health Act and the judicial review proceedings, even if they are successful and a further decision under the Mental Health Act were to be made as a result of them and declarations as to the correct legal approach were to be made in them, could not be made and occur before the present date identified for MB's eviction.
61. The pragmatic position is therefore the risk I have identified of no application being made under the Mental Health Act before that eviction takes place, or even when it takes place being made, exists. I repeat that as I understand it, it is common ground that such an eviction would have disastrous consequences for MB.
62. My decision as to whether or not to impose compulsion also has to be made against the background of the decision I made in September and have confirmed today as to the choice between a placement in the community and placement in the unit. That decision means, and I confirm, that I am not considering whether or not to authorise compulsion because it is a convenient course. Rather if I were to authorise it it would be to bring about the result which I have concluded is in the best interests of MB.
63. It would also bring about that result in situations where it needs to be brought about quickly because of the imminent risk of his eviction.
64. At this stage it seems to me that proper regard has been paid by the court and by the Applicants, the Official Solicitor and the Primary Care Trust, to the primacy of the Mental Health Act and, indeed by the OLDT, because they have carried out, or procured, that a further assessment under that Act be carried out. It has however resulted in the practical impasse I have referred to.
65. On the last occasion, but in a different context, I reminded myself of earlier decisions of my own that in exercising the best interests jurisdiction the court is not in a position to compel public authorities to take particular steps. As to that see also the decision of Mumby J in A v A [2002] 3 WLR 24. That means in my view that the court has to exercise its jurisdiction against the practicalities of a situation and thus as to approaches that are available.
66. As I indicated during argument it seems to me that I could by reference to the arguments relating to the primacy of the Mental Health Act, my own views as to the applicability of that Act and my acceptance that the relevant people applying that Act will apply their professional and clinical judgement to it, take the course of saying that the present impasse should be resolved by simply leaving the doctors to take the relevant decisions. Those doctors, as I have indicated, are represented both in the context of the decision to make an application for placement at the unit and as to what will happen at the unit by the ODLT.
67. However, in my view that would not be the correct course for the court to take in the exercise of its statutory discretion. That in effect "pass the parcel" approach to my mind is simply an inappropriate one for a court charged with making decisions as to what it considers to be in the best interests of a person who lacks capacity.
68. To my mind, for the reasons I have given, it is clear that it is in MB's best interests that he goes to the unit. If that can be achieved without compulsion so much the better. If, however, compulsion is needed, in my judgment in exercising the discretion I have, I should make that clear now, so that future uncertainties over the period during which further attempts are made to persuade MB to go to the unit, do not exist and a situation does not arise that at the eleventh hour the doctors are faced with having to embark upon a further consideration of the position under the Mental Health Act.
69. I pause to record that for essentially the same reasons I would have taken the same decision now if I had not transferred the proceedings to the Court of Protection because, in my view, I would have, for essentially the same reasons that I have given for exercising the wide statutory discretion, have been filling a gap by an application of the pragmatic course that the authorities show is to be taken to the exercise of this best interests jurisdiction.
70. I also add that as I have mentioned earlier I have taken some comfort in reaching the conclusion I have from section 48 of the Mental Capacity Act, albeit that I would have reached the same decision if that section had been absent.
71. As I have indicated I accept that the decision I have made authorising compulsion is of the type that cannot be undone, but it seems to me that it is a decision of a type which from time to time will have to be taken in proceedings of this nature and thus I take comfort from the provisions of section 48.
72. Finally I confirm that in reaching this decision as to authorising compulsion I have assumed that despite her general support for the application of the Mental Capacity Act, and her arguments as to the non-applicability of the Mental Health Act, SB would have strongly opposed the making of any such declaration. Also, as I have indicated, I have had full regard to MB's wishes and thus his feelings as expressed to me both through the Official Solicitor and his mother and from the other assessments that have been made of him.
73. The period for the declaration sought by the OLDT was for a period lasting for four months. The period for assessment and/or treatment could go on longer than that, and longer periods, of six to nine months, have been mentioned.
74. The basis of that submission was, and I accept, that when the court makes the decision a longer period of authorisation can be given than if the decision is made at an administrative level. However, in my judgment that is an inappropriately long period for the declaration in all the circumstances of this case.
75. In my judgment, having been persuaded to make the declaration on the basis that it needs to be supervised and reviewed, the first review should take place as soon as is sensibly practicable having regard to the timetable of the court and other matters. In that context I have been able to secure that this matter can return for further consideration by me on 21st-23rd November and therefore I shall grant the appropriate declarations over 4.30pm on 23rd November or further order in the meantime.
76. I appreciate that by that time the assessment may not have gone very far and there may well be, and indeed there is likely to be, uncertainty as to what its results will be. I also appreciate, and indeed it seems to me appropriate, that on this occasion arguments that have been covered at this stage will be revisited. But it seems to me that that is correct in the circumstances of this case even if the Mental Capacity Act is the appropriate statutory vehicle for further authorisation of detention of MB.
77. Whether a declaration was for four months or, indeed, for a longer or shorter period, the problem as to where MB should be placed when it ends will exist. The care plan as I understood it on the last occasion accepted the need for close consultation and discussion between the unit on the one hand and the County Council on the other to deal with issues as to placement as and when the assessment and treatment came to an end.
78. So far as the detail of the declaration is concerned I invited counsel to prepare drafts and I will deal with it when discussing the detail of the order.
79. I turn now to the proceedings for judicial review. As I have already indicated I give permission for those proceedings as against both defendants. I have already indicated that I see force in arguments advanced on behalf of the second defendant, having regard to the respective roles of the doctors and social workers, but it seems to me that the grounds raise arguable points for review and also points of wider impact which will affect decision-making by both doctors and social workers.
80. If the second defendant does not want to take any active part in the proceedings it seems to me that that is a matter for them.
81. I will also indicate that it seems to me that the suggestion made that the Department of Health should be notified of the proceedings is an appropriate one.
82. The decision that is the subject of the present judicial review will, by the time the review is dealt with substantively, be an historical decision and in that sense it might at that stage be said that the issues are academic. However, in my view it is necessary in the context of the issues that have arisen in this case for the court to have before it both proceedings under the Mental Capacity Act and proceedings under the Mental Health Act in the sense of public law proceedings challenging a decision that has been made under the Mental Health Act.
83. As I have indicated it may be that the widest of the arguments advanced before me on behalf of the OLDT did not form part of the doctors' thinking at the time they made their decisions, but at present, as I understand it, they do form part of the thinking and argument within the present proceedings by reference to the draft summary grounds of resistance relating to alternative remedies. It does seem to me that those arguments need to be addressed and if on them the OLDT were to fail in the judicial review there would need to be possibly a re-consideration of an assessment under the Mental Health Act having regard to the court's decision as to what can and cannot properly be taken into account in reaching decisions under that Act. In broad terms that argument relates to the place within the application of the relevant statutory provisions of the clinical matters raised by Doctors A and B and put to me on behalf of the OLDT.
84. As I have indicated, the defendants to the judicial review proceeding have had only a very short time in which to react and to put their position before the court. I express my gratitude to them for the efforts they have made and for the arguments they have put before me. That stance gives me confidence that within the judicial review proceedings a flexible approach will be taken so that the underlying issue can be the subject of a relevant public law argument potentially resulting in declaratory relief and/or directions as to the appropriate legal factors to be taken into account in the proper performance of sections 2 and 3 of the Mental Health Act.
85. In that context, therefore, I will consolidate the judicial review proceedings with the proceedings under the Mental Capacity Act and invite counsel to agree or make directions to ensure that both matters can be considered on the dates I have given.
86. So, what I propose to do is to continue the declarations made in the previous order and to hear counsel on the detail of the declarations relating to the authorisation of compulsion and as to directions so that the matter can return to be dealt with again on 21st November.