Conwy County Borough Council v PR & Ors

The inherent jurisdiction cannot be used to determine that a person is detainable under the Mental Health Act 1983 where that would require the Family Division to supervise or review decisions entrusted to clinicians and other mental-health professionals. A medical opinion that the statutory criteria are met does not itself result in detention. Nor may the court use its jurisdiction merely to influence statutory decision-makers. The inherent jurisdiction may nevertheless remain available where necessary and proportionate to protect a child.

The local authority applied for care and deprivation-of-liberty orders concerning a 15-year-old girl with autism, learning difficulties and highly dangerous behaviour. She was receiving care in a general adolescent unit under an order made pursuant to the inherent jurisdiction. The local authority sought findings and a declaration that she was detainable under section 3 of the Mental Health Act 1983, so that the inherent jurisdiction could not be used.

The health board challenged the court’s jurisdiction to review clinical decisions or make findings intended to influence statutory decision-makers. The local authority ultimately did not pursue the declaration, but the court considered the issues because of their public importance.

1. The Family Division has no jurisdiction, when considering whether to authorise deprivation of liberty under the inherent jurisdiction, to determine or declare that a child is detainable under section 3 of the Mental Health Act 1983. That would amount to an impermissible supervisory or review function over decisions entrusted by Parliament to clinicians and mental-health professionals.
2. Schedule 1A to the Mental Capacity Act 2005 expressly enables the Court of Protection to determine whether a person is within the scope of the 1983 Act for the limited purpose of deciding ineligibility for deprivation of liberty under the 2005 Act. It does not confer a wider power on the Family Division exercising the inherent jurisdiction.
3. Even if the court preferred an expert opinion that the section 3 criteria were satisfied, that opinion would not itself secure detention. Admission and detention depend on the statutory process, including decisions by the relevant professionals and hospital managers. An order intended merely to influence those decisions would be an abuse of process.
4. The proposed declaration could leave the child without either statutory detention for treatment or protective deprivation of liberty in a safe placement. The inherent jurisdiction therefore continued to be available to authorise deprivation of liberty at the existing hospital, pending discharge to a suitable community placement. The order was necessary and proportionate.
5. The local authority’s applications for findings and a declaration were refused.