https://www.bailii.org/ew/cases/EWCOP/2023/33.html
This case was brought as an appeal by Manchester University Hospitals NHS Foundation Trust (the Trust) from a decision in April 2023 which can be found here. The initial case concerned JS being deprived of her liberty following the lapse of a detention under s2 MHA. The Judge found that she was ineligible to be deprived of her liberty under the MCA 2005, instead opining that the MHA not only could be used but should be used.
The Court of Protection Rules 2017 rule 20.14 states that an appeal will only be allowed if the decision of the judge was wrong for any reason, or unjust due to a procedural error.
The case concerned 17-year-old JS who lives with diagnoses of ASD, ADHD, learning disability and attachment disorder. Following detention under s2 MHA, discharges and repeated s2 detentions, and a couple of s5(2) detentions, she remained on a hospital ward and the Judge declared that once the s2 authority had expired, JS had been deprived of her liberty. She was ultimately placed on a s3 but this Judge set out an analysis of the Mental Health Act 1983 and Mental Capacity Act 2005, with useful guidance on how to decide which Act to use in situations such as this, as well as rationale for why, in this case, use of the High Court’s inherent jurisdiction was unnecessary.
The appeal concerned the interpretation of Schedule 1A to the MCA. The policy behind Schedule 1A is such patients, with or without capacity, who were considered to require detention for the purposes of medical treatment for mental disorders should be treated in the same manner: it sets out a list of ‘persons ineligible to be deprived of their liberty’ under the MCA, whether through DoLS or the Court itself.
A person (“P”) is ineligible to be deprived of liberty by this Act (“ineligible”) if—
(a) P falls within one of the cases set out in the second column of the following table, and
(b) the corresponding entry in the third column of the table —or the provision, or one of the provisions, referred to in that entry — provides that he is ineligible.
The Judge in the original case concluded that JS:
‘’was ineligible to be deprived of her liberty in the Hospital under MCA. She was within the scope of the MHA under Case E [P is – (a) within the scope of the Mental Health Act, but (b) not subject to any of the mental health regimes.]. I have concluded for the reasons I have given that she could have been detained and treated under the MHA. I would go further and say that she should have been so detained and treated.
The MHA should have been used. It was available. There is no gap for the inherent jurisdiction to patch. Secondly, the MHA is a long-established bespoke code dealing with the difficult regulation of the treatment of detained patients in Hospitals. The use of the inherent jurisdiction or the MCA for that matter would have the perverse result of a Judge having to make decisions over the management of medical treatment when that code exists and is available for use. For the Court to assume that role would (a) place Judges in an impossibly difficult position and (b) act as an incentive for those entrusted with using the MHA, clinicians and Hospitals, not to use it.”
What was considered
The appeal Judge recognised the complexity of cases involving young people where an issue has arisen in the identification of the appropriate legal framework to be used in order to deprive them of their liberty and highlighted, rightly, that neither the MCA nor the MHA have primacy over the other [neither being pre-eminent or more important].
She highlighted GJ v The Foundation Trust [2009] EWHC 2974 (Fam) where Charles J addressed the question whether GJ was ineligible to be dealt with via the MCA on the grounds that his circumstances fell more properly within the scope of the MHA. [CASCAIDr’s write-up of that case can be found here].
In GJ’s case, the Judge highlighted that ‘’it is not lawful for medical practitioners referred to in [the MHA 1983], decision makers under the MCA, treating doctors, social workers or anyone else to proceed on the basis that they can pick and choose between the two statutory regimes as they think fit having regard to general considerations (e.g. the preservation or promotion of a therapeutic relationship with P) [in] that they consider one regime preferable to the other in the circumstances of a given case’’.
For the purposes of Case E
“Within the scope of the Mental Health Act” is defined by paragraph 12 of Schedule 1A as
“(1) P is within the scope of the Mental Health Act if-
(a) an application in respect of P could be made under s.2 or s.3 of the Mental Health Act, and
(b) P could be detained in a hospital in pursuance of such an application, were one made.
(2) The following provisions of this paragraph apply when determining whether an application in respect of P could be made under section 2 or 3 of the Mental Health Act.
(3) If the grounds in section 2(2) of the Mental Health Act are met in P’s case, it is to be assumed that the recommendations referred to in section 2(3) of that Act have been given.
(4) If the grounds in section 3(2) of the Mental Health Act are met in P’s case, it is to be assumed that the recommendations referred to in section 3(3) of that Act have been given.
(5) In determining whether the ground in section 3(2)(c) of the Mental Health Act is met in P’s case, it is to be assumed that the treatment referred to in section 3(2)(c) cannot be provided under this Act.
For JS, all parties agreed that the questions to be answered, in order to identify the proper legal framework to be applied were as follows:
(1) Is P a ‘mental health patient’?
(2) Is P an ‘objecting’ mental health patient?
(3) Could P be detained under s 3 MHA 1983?
The appeal Judge found that the previous conclusions were not wrong and did not fall into error. She found the Judge was justified in his conclusions based on the evidence before him but recognised there are widespread misunderstandings in cases such as this. She highlighted that a practical step that could be take in cases where Schedule 1A Case E issues arise would be to utilise the GJ framework to address the issue. The purpose of this would be to focus the relevant professionals’ minds on the issues to be addressed.
Charles J [the Judge in the GJ case] said:
I have concluded that the correct approach for the decision maker to take when applying paragraph 5(3) [MCA: the first condition is that the relevant instrument authorises P to be a mental health patient. The second condition is that P objects (a)to being a mental health patient, or (b) to being given some or all of the mental health treatment.] is to focus on the reason why P should be deprived of his liberty by applying a “but for” approach or test. And to do that he should ask himself the following questions, namely:
(a) what care and treatment should P (who will usually have a mental disorder within the MHA 1983 definition) have if, and so long as, he remains in a hospital:
(i) for his physical disorders or illnesses that are unconnected to, and are unlikely to directly affect, his mental disorders (the package of physical treatment), and
(ii) for (i) his mental disorders, and (ii) his physical disorders or illnesses that are connected to them and/or which are likely to directly affect his mental disorders (the package of treatment for mental disorder).
And then:
(b) if the need for the package of physical treatment did not exist, would he conclude that P should be detained in a hospital, in circumstances that amount to a deprivation of his liberty?
And then, on that basis
(c) whether the only effective reason why he considers that P should be detained in hospital, in circumstances that amount to a deprivation of liberty, is his need for the package of physical treatment.
He went on to say:
‘’I have concluded that a “but for” approach…..provides a practical approach that should help to minimise gaps and the potential for persons who lack capacity suffering harm by falling between the two statutory regimes, particularly in cases of emergency.’’
In JS’s case, she did not have a need for physical treatment and the Trust argued that this distinguished the two cases, and that JS was only accommodated in hospital because of the absence of a robust package of care, making a return home unsafe for her.
The Trust further tried to say that JS’s medical treatment for mental disorder in hospital was central or key to her placement and would have been administered irrespective of where she was residing on a best interests basis.
It further requested the court ‘not to overrule GJ but to distinguish it, and to equip decision makers with the tools to manage the inevitable ‘stalemate’ that arises from its application in cases such as this.’
The Secretary of State submitted that if it is proposed that a person should be detained in hospital but authorisation has not been given under the MCA 2005 or MHA 1983, professionals should meet and discuss the position in the spirit of co-operation to seek a resolution.
Consideration should be given to what can be put in place to support the person in the community pursuant to s117 MHA 1983 and/or Care Act 2014 duties. ‘It cannot be an appropriate outcome for people to remain de facto deprived of their liberty in hospital without legal authorisation’.
The Judge saw no ‘’reason or sound basis to depart from that [the GJ] test’’ and stated that to do so would ‘probably lead to more uncertainty and risk undermining the purpose of the legislation. Such a development would not be welcome in this area, where the legal landscape needs stability rather than further uncertainty’.
CASCAIDr Comment:
Working with people is an art and not a science, and judgments such as this are useful in highlighting the importance of weighing up options and alternatives, and highlighting the benefit of using pre-existing legislative powers prior to approaching the court, whilst additionally giving us the benefit of impartial and independent scrutiny over the use of such powers.
The ‘but for’ test is often used in cases and legal thinking to determine causation. It asks, ‘but for the existence of X, would Y have happened?’. In this case JS was awaiting a ‘’robust package of care’’ in order to meet her needs and keep her safe. We imagine that the ‘but for’ being applied here was but for JS awaiting on a suitable package of care and support, would she be being detained in hospital? Since the decision at first instance, and upheld, was that she was ineligible for DoLS in hospital, it must be that the judge believed that she was sectionable, and thus the answer to the ‘but for’ test was that she met the criteria for detention given the facts, and in statutory terms, ‘could’ have been treated in hospital by dint of the requirement in the legislation that when considering the question which statute applies to the individual, one must assume that same treatment under the MCA would not be able to be administered.
The Trust stated that:
‘’The local authority required time to put that package of care in place and in the intervening period it was considered safer for JS to be in a hospital setting. That was the purpose, it was not so she could be given medical treatment for her mental health or otherwise. Any medical treatment was either consequent on her being in an unsuitable placement or would have been administered to her irrespective of where she was residing. Her discharge was dependent on the availability of the package of care not the completion of any treatment plan.’’
This was rebutted by the local authority who advised that ‘’The medical treatment she did receive as a detained patient in hospital was necessary to keep her safe and to prevent her from absconding or harming herself’’ and such treatment could not be provided unless JS was detained, as there was no viable alternative.
The statutory assumptions regarding what it means to consider whether the person COULD be detained under the MHA, i.e. removing the MCA 2005 – presents the decision-maker with a stark choice: either the person is confined under the MHA 1983 or they are not confined at all. It provokes them to consider explicitly P’s capacitous counterpart for whom similarly the MCA 2005 is not available. Based on the nature and degree of P’s mental disorder, the risks arising, the options available, and P’s objections: the question is does P meet the MHA 1983 grounds? If not, they cannot be deprived of their liberty in a hospital.
When a party applies to the Court of Protection for authorisation to deprive of liberty it will need to convince the judge that P is not ineligible for an order. Evidence of the reasoning of the MHA decision-maker should be provided as part of the evidence in support of the application. In the interim, pending that decision, provided the stringent conditions are met, s4B MCA 2005 provides interim authority to deprive liberty whilst the court makes directions and determines P’s eligibility. Subject to any appeal the parties are likely to accept the Court’s determination on eligibility.
The judgment does a little bit more by way of saying to the government that there are no means by which the NHS can simply bully the local authority into doing more than it can be expected to do, by way of the Children Act or for over 18s, the Care Act. This might have been a case where (before the s3, which turned it into a s117 case) the young woman needed a package of continuing children’s care. In practical terms, that might have doubled the fee being offered, so that a specialist provider would take her care needs on. Absent that, the mental health estate for under 18s must simply be enlarged by NHS England.
Theis J said this by way of remonstration to the government:The situation remains very difficult and challenging for the young people concerned and their families; for the staff in the hospitals who are having to manage these difficult and dangerous situations, when they are ill equipped and not trained to do so; and for the wider community, as it can often bring whole wards and departments in hospitals to a standstill due to the drain on resources and the disruption these situations cause. In addition, these cases take up scarce judicial court time and resources, with consequent delays for other cases being heard. In Re X (Secure Accommodation: Lack of Provision) the court was informed the Secretary of State for Education accepted that cross government action was required. I understand the government has in the past month set up a high-level cross departmental group to look at this, drawn from Departments of Education and Health. It is hoped this step will help improve the situation which is causing so much harm to some of the most vulnerable young people in society.