BB v AM  EWHC 1916 (Fam)
(1) BB was not ineligible to be deprived of her liberty within the meaning of Case E of MCA 2005 sch 1A as the psychiatric evidence was that the criteria under s2 or s3 MHA were not made out. (2) In relation to whether or not there was a deprivation of liberty: on one hand (a) BB was under sedation; staff exercised control over her care, movements, assessments and treatments; staff also exercised control over her residence and the contacts she had with other people; her family were hostile to her placement; the court was refusing to sanction the discharge of BB into the care of her parents pending the conclusion of investigations being carried out by the police; on the other hand (b) BB was apparently happy where she was; she had a degree of freedom within the hospital; in addition if she asked to leave, she was allowed to do so, although only under the supervision of accompanying staff; in conclusion (c) she was being deprived of her liberty as she was away from her family, in an institution under sedation in circumstances in which her contact with the outside world was strictly controlled, her capacity to have free access to her family was limited, now by court order, and her movements were under the strict control and supervision of hospital staff.
In this case, Baker J was concerned with a thirty-one year old Bangladeshi woman known as BB. She was said to have very complex needs, being profoundly deaf and with a diagnosis of schizoaffective disorder and probable learning difficulties. It was accepted by all parties to these proceedings that for material purposes BB lacked the capacity to decide where she should live.
On 19 April 2010, BB was removed from the family home by support workers employed by Tower Hamlets Community Mental Health Team following reports that BB had been assaulted by her parents. She was admitted to the Roman Ward at Mile End Hospital which is managed by the East London NHS Trust. On 29 April, the Official Solicitor filed an application in respect of BB in the Court of Protection. On 6 May, NHS Tower Hamlets (formerly Tower Hamlets PCT) authorised BB’s deprivation of liberty under a standard authorisation under the Mental Capacity Act 2005. On 28 May, BB was transferred to the Old Church Hospital in Balham, managed by the South West London and St George’s Mental Health NHS Trust. On 7 June, BB’s, deprivation of liberty was authorised by that Trust under an urgent authorisation under the 2005 Act.
Following a sequence of events that are not relevant here, on 5 July, the Official Solicitor wrote to the other parties indicating that it appeared that there was no longer any lawful authorisation for BB’s deprivation of liberty and that in the circumstances it would be necessary to restore the matter to court pursuant to the President’s order. The matter came before Baker J on 7 July. At that hearing, a number of matters were resolved by consent, including residence and contact. Baker J was, however, asked to make a declaration that BB was currently being deprived of her liberty at Old Church. As he identified (paragraph 6), that was a necessary preliminary step because, if a person is ineligible to be deprived of liberty, a court may not include in a welfare order any provision which authorises that deprivation of liberty. Plainly this issue only arises if the circumstances in which the person is being accommodated amount to a deprivation of liberty.
Baker J held (at paragraph 12) that the statutory provisions contained in the MCA 2005 do not appear on their face appear to extend to making declarations as to whether or not circumstances amount to a deprivation of liberty. He concluded that it might be that the court’s power to make such a declaration arose under its inherent jurisdiction, and noted both that no party sought to persuade me in this case that he had no power and clearly it was necessary to make a decision on the question whether circumstances amount to a deprivation of liberty and to recite that decision in the order seemed eminently sensible.
Baker J summarised the statutory provisions contained in the MCA, and in particular those in Schedule 1A relating to eligibility to be deprived of one’s liberty, endorsing in the process the approach taken by Charles J in GJ v The Foundation Trust  EWHC 2972 (Fam). Having done so, he drew the points together as raising the following questions (paragraph 25):
“(1) Are the criteria in sections 2 or 3 of the Mental Health Act met in BB’s case and if so would the hospital admit her under the Mental Health Act if an application was made? In other words, is she suffering from a mental disorder warranting assessment or medical treatment? If yes, BB is ineligible to be deprived of her liberty. If not,
(2) Do the circumstances of her detention considered together amount to a deprivation of liberty having regard to the guidance set out in the DOLS Code of Practice?”
On the facts of the case, Baker J found that that the medical evidence was that BB was not “detainable under the Mental Health Act because she is happy to stay in hospital and take medication. She has made no attempts to leave. She reports being happy. She changes the subject when asked about her home and family but she does so without showing any negative emotion or particular interest… if she said she wished to be discharged or to return home, we would assess her mental state and assess for detention under the Mental Health Act. It might be she would be easily persuaded to stay; it might be she would be detainable”. In the circumstances, he found (paragraph 27) that she was not ineligible to be deprived of her liberty within the meaning of the eligibility requirement in MCA 2005 Sch 1A, and as a result the Court was not prevented from including in a welfare order provision which authorised deprivation of her liberty.
Baker J then concluded as follows on the question of whether BB was deprived of her liberty:
“30. In considering the submissions, I have, as recommended in the guidance in the DOLS Code of Practice, had regard to the rapidly expanding case law in this field, including not only the decision of Charles J in GJ v Foundation Trust (supra) , and my own decision in G v E, A Local Authority and F (also supra), but also the recent decision of Parker J in Re MIG and MEGM and the very recent decision of Munby LJ (sitting at first instance) in Re A, A Local Authority v A M. It is necessary to have regard to these authorities because, whilst all cases turn on their own facts, it is important that there should be consistency in the interpretation and the implementation of these complex provisions.
31. Furthermore, it should be borne in mind that I am only deciding this case at an initial stage, on the basis of limited evidence, and with limited opportunities to consider the details of BB’s circumstances. There is of course a danger that such an assessment will be somewhat superficial. It is, however, important to take a proportionate response to these matters. The courts simply do not have the time and resources to spend lengthy periods of time considering arguments at an interim stage as to whether or not detention amounts to a deprivation of liberty. The court has to make a quick and effective assessment at the interim stage on the best available evidence.
32. To my mind, having regard to all the factors identified in the DOLS Code of Practice and the circumstances of BB’s current accommodation at Old Church Hospital as set out in the evidence before me, I conclude that she is being deprived of her liberty. She is away from her family, in an institution under sedation in circumstances in which her contact with the outside world is strictly controlled, her capacity to have free access to her family is limited, now by court order, and her movements under the strict control and supervision of hospital staff. Taking these factors altogether, the cumulative effect in my judgment is that BB is currently being deprived of her liberty and I so declare.”
This case is of some importance both for its confirmation of the approach taken by Charles J to the interaction of the MHA and the MCA in GJ (GJ v The Foundation Trust  EWHC 2972 (Fam)), and also for the clarification regarding the approach to be taken to assessments of the deprivation of liberty. The comments made by Baker J as to the need for consistency of approach is welcome although does, again, raise the stark issue of the difficulty of dissemination of judgments. Somewhat more troubling, perhaps, is the indication that the courts will take a robust approach to determinations of deprivation of liberty questions on an interim basis. Whilst limited judicial resources available (adverted to by the Court of Appeal in G v E  EWCA Civ 822) mean that this is a reality, in many cases, an interim conclusion as to whether or not a situation constitutes a deprivation of liberty is likely to hold sway for many months, with significant consequences in terms of the obligations upon the relevant local authority/PCT to review the position.
Thanks to Alex Ruck Keene (39 Essex Chambers) for providing the judgment.
Possible Bailii link (not there when checked last night, but might have appeared since)