MK: Deprivation of Liberty and Tier 4 Beds, Re

A person may satisfy the statutory definition of mental disorder and be detainable under the Mental Health Act 1983 even where their presentation is attributed to emotional distress, environmental factors or behaviour, and detention may not be therapeutically beneficial. In an acute crisis, the immediate protective purpose of intervention may be to keep a patient alive. Where those responsible know, or ought to know, of a real and immediate risk of suicide, Article 2 ECHR requires all reasonable steps to prevent it. The court may authorise deprivation of liberty in an unsuitable setting where it lacks power to compel admission to a Tier 4 bed.

The Applicant Trust sought authority to continue depriving MK, a 17-and-a-half-year-old looked-after child, of her liberty in a general hospital paediatric ward. MK had a significant history of self-harm and repeated overdoses, with a recent deterioration involving suicidal conduct, absconding and refusal of treatment.

Although assessments indicated that the criteria for detention under section 2 of the Mental Health Act 1983 were met, the Tier 4 access assessment group repeatedly declined to offer a specialist bed. The local authority could offer only an unsuitable community placement. The central issues were whether MK was detainable, the relevance of the therapeutic disadvantages of Tier 4 admission, the State’s Article 2 obligations, and the appropriate interim protective order.

1. Detention criteria. The court held that the conditions for detention under section 2 of the Mental Health Act 1983 were met. The statutory definition of mental disorder includes personality disorder. That remains so whether the disorder is emerging in a young person or established in an adult. The fact that detention may not benefit the person therapeutically does not remove detainability.
2. Immediate protective purpose. Although Tier 4 admission might be countertherapeutic in terms of psychological treatment and future functioning, that consideration was secondary in the immediate crisis. The relevant need was a sufficiently high level of supervision and containment to prevent absconding, overdose and death.
3. Article 2. Applying the principles stated in Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74, and noting their endorsement in Rabone v Pennine Care NHS Trust [2012] UKSC 2, the State was on notice of a positive operational obligation under Article 2 ECHR. The known real and immediate risk required all that could reasonably be expected to prevent MK from committing suicide. A locked Tier 4 unit was more likely to meet that obligation than the general paediatric ward or proposed community accommodation.
4. Relief. The Article 2 analysis was expressly obiter because the court could not compel NHS England or the Tier 4 assessment body to provide a bed or treatment. The court therefore authorised the Applicant Trust to continue depriving MK of her liberty on the general hospital paediatric ward.