The Interface: more trouble?

1
The Interface more trouble?

• Simon Burrows
• Kings Chambers

2

• AM v South London Maudsley NHS Foundation Trust
  SSH 2013 UKUT 365 (AAC) Mr Justice Charles, CP

3

• But the MHA necessity test means that, in the
  search for the best way to achieve the desired
  purpose (i.e. the assessment or treatment
  referred to in ss. 2 and 3 of the MHA) in the
  least restrictive way, the FTT (and other
  decision makers under the MHA ) have to consider
  whether this result should be founded on a
  detention in hospital and if so whether that
  should be pursuant to the MHA , or whether the
  assessment or treatment in the proposed
  circumstances should be founded on the MCA and
  any deprivation of liberty it involves should be
  authorised under the DOLS. To do that, the FTT
  (and such other decision makers) have to consider
  whether the MCA and its DOLS alternative are
  applicable and available and, if so, whether and
  when they should be used.

4

• AM was about an incapacitous but compliant P who
  needed assessment
• Equally applicable to incapacitous non-compliant
  P who wanted discharge to less restrictive option

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MHA Code of Practice

• 1. STATEMENT OF GUIDING PRINCIPLES
• 4-010
• 1.1 This chapter provides a set of guiding
  principles which should be considered when making
  decisions about a course of action under the Act.
• Guiding principles
• Purpose principle
• 4-011
• 1.2 Decisions under the Act must be taken with a
  view to minimising the undesirable effects of
  mental disorder, by maximising the safety and
  wellbeing (mental and physical) of patients,
  promoting their recovery and protecting other
  people from harm.
• Least restriction principle
• 4-012
• 1.3 People taking action without a patients
  consent must attempt to keep to a minimum the
  restrictions they impose on the patients
  liberty, having regard to the purpose for which
  the restrictions are imposed.

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Mental Capacity Act 2005

• Gateway- lack of relevant capacity
• Any decision- property, care, treatment
  (including treatment for mental disorder)
• Serious or contentious decisions involving
  deprivation of liberty- Court of Protection- ss.
  15 and 16
• Schedule A1 (DOLS)

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Overlap.

• 28 Mental Health Act matters
• (1) Nothing in this Act authorises anyone
• (a) to give a patient medical treatment for
  mental disorder, or
• (b) to consent to a patient's being given
  medical treatment for mental disorder,
• if, at the time when it is proposed to treat the
  patient, his treatment is regulated by Part 4 of
  the Mental Health Act
• (1A) Subsection (1) does not apply in relation to
  any form of treatment to which section 58A of
  that Act (electro-convulsive therapy etc) applies
  if the patient comes within subsection (7) of
  that section (informal patient under 18 who
  cannot give consent) 1
• (1B) Section 5 does not apply to an act to which
  section 64B of the Mental Health Act applies
  (treatment of community patients not recalled to
  hospital)
• (2) Medical treatment, mental disorder and
  patient" have the same meaning as in that Act.

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Ineligibility under DOLS

• Sch 1A, Part 1, Para 2
• Five cases

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Case A-

• where P is subject to hospital treatment regime
  under MHA and detained in a Hospital under that
  regime
• Ineligible for DOL
• See (as a matter of curiosity)
• A NHS Trust v Dr A 2013 EWHC 2442 (COP)

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Case B

• P is subject to MHA regime, but not detained in
  Hospital. If course of care or treatment leading
  to DOL would be inconsistent with requirement of
  regime AND consists in whole or part treatment
  for mental disorder in a hospital, then ineligible

11
Case C

• If P is subject to community treatment regime
  (i.e. s 17A or equivalent), and course of care or
  treatment would not be in accordance with that
  regime and consists in whole or part treatment
  for mental disorder in a hospital,
• Ineligible
• (probably includes conditional discharge?)

12
Case D

• P is subject to a guardianship regime, and the
  course of care or treatment is inconsistent with
  the regime and P objects to treatment
• Ineligible

13
Case E

• P is (a) within the scope of the MHA but
• (b) is not subject to any MHA regime
• AND objects to mental health treatment
• Ineligible

14
Case E

• J v The Foundation Trust, A PCT the Secretary
  of State for Health
• 2010 3 W.L.R. 840
• Mr Justice Charles

15
Important point in J

• MHA has primacy over MCA
• Consequently, decision makers could not pick and
  choose between regimes
• In Case E the question was whether predominant
  purpose of treatment was physical or mental
  disorder

16
DN v Northumberland Tyne Wear NHS Foundation
Trust 2011 UKUT 327 (AAC)

• Appeal against FTT failure to consider
  alternative to MHA detention under MCA/DOLS in
  the community

17

• DOH letter
• The Governments policy intention was that people
  who lack capacity to consent to being admitted to
  hospital, but who are clearly objecting to it,
  should generally be treated like people who have
  capacity and are refusing to consent to mental
  health treatment. If it is considered necessary
  to detain them in hospital, and they would have
  been detained under the MHA if they had the
  capacity to refuse treatment, then as a matter of
  policy it was thought right that the MHA should
  be used in preference to the MCA.

18

• It was specifically in the context of the
  interpretation of Case E that Mr Justice Charles
  talked in J about the MHA having primacy.
  Outside that context, the Department does not
  understand him to have been making a more general
  statement about the relationship between the two
  Acts. Indeed, as set out above, the Department
  does not think it would actually be possible to
  say, in general, which has primacy over the
  other.

19
Consequently

• No reason why MCA status be put in place in
  anticipation of P becoming discharged from MHA
  section.
• Consequently, no reason why FTT should not wait
  to see whether MCA regime can be put in place?

20
C v Blackburn with Darwen BC, A Care Home a
PCT2011 EWHC 3321 (COP)

• Guardianship DOLS
• Primacy of MHA over MCA?

21
Mr Justice Peter Jackson

• In my view, there are good reasons why the
  provisions of the MHA should prevail where they
  apply. It is a self-contained system with inbuilt
  checks and balances and it is well understood by
  professionals working in the field. It is cheaper
  than the Court of Protection

22

• it is not in my view appropriate for genuinely
  contested issues about the place of residence of
  a resisting incapacitated person to be determined
  either under the guardianship regime or by means
  of a standard authorisation under the DOLS
  regime. Substantial decisions of that kind ought
  properly to be made by the Court of Protection,
  using its power to make welfare decisions under
  s16 MCA.
• Mr Justice Peter Jackson

23

• Guardianship is a relatively rare status. There
  must be a question as to whether it is the proper
  vehicle for a decision about Mr C's residence. I
  invite the LA to consider its position as a
  guardian. If it chooses to renounce its role, or
  if the guardianship is discontinued by some other
  means, this court can then be asked to make
  orders or declarations about Mr C's residence. So
  that the outcome of any such application should
  not be protracted, I reserve the matter to myself
  if available.

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Therefore

• MHA has primacy over MCA
• CoP cannot make residence order which conflicts
  with guardianship
• Where there is a genuine dispute over residence
  in such a case, guardian should refer to COP
• What if it does not?
• Role of the FTT

25

• AM v South London Maudsley NHS Foundation Trust
  SSH 2013 UKUT 365 (AAC)
• Mr Justice Charles changes his mind..?

26

• Can a decision maker pick and choose between
  regimes?

27
Issue in AN

• whether the Appellant should be discharged from
  detention under s. 2 because her assessment in
  hospital for the purposes identified in s. 2 MHA
  should be carried out and authorised under the
  MCA and its DOLS

28
The role of the tribunal

• Apply s. 72- in particular, the necessity test
• If detention not necessary and/or for assessment
  to be in hospital, should not be detained under
  s. 2
• (same applies, mutatis mutandis, to other
  sections?)

29
Progression

• First question
• Does P have the capacity to consent to
  admission/continued admission at hospital, under
  s. 131 (informal status).

30

• Second question
• Can the hospital rely on the provisions of the
  MCA to lawfully assess or treat the relevant
  person?
• (Also applies to non- s2 patients vis-à-vis
  treatment?)

31

• Third question
• How should the existence of a choice between
  reliance on the MHA and the MCA and its DOLS be
  taken into account?
• This leads to a consideration of the least
  restriction principle

32

• Or, put another way
• a patient must not be detained under MHA if the
  relevant objective (i.e. assessment/treatment)
  could be met under the MCA regime and
• the MCA regime would be less restrictive.

33

• The use of MCA/DOLS will not invariably result in
  a less restrictive option.
• When considering the MCA option the tribunal
  needs to consider the actual availability of the
  MCA regime and then compare its impact, if it was
  used, with the impact of detention under the
  MHA. This involves a consideration of best
  interests and the likelihood of compliance on the
  part of the patient.

34

• Further, in my judgment it involves the decision
  maker having regard to the practical / actual
  availability of the MCA regime (see by analogy (
  A Local Authority v PB P 2011 EWHC 501 (CoP)
  at in particular paragraphs 18 to 22). As to
  that, I repeat that the FTT (and earlier decision
  makers under the MHA ) are not able to implement
  or compel the implementation of the MCA regime
  and its DOLS and so (a) the position of those who
  can implement it and whether they could be
  ordered to do so, and (b) when the MCA regime and
  its DOLS would be implemented, will be relevant.
  This was correctly recognised on behalf of the
  Appellant by the acceptance and acknowledgement
  of the point that when a discharge under the MHA
  of a compliant incapacitated person was warranted
  it should usually be deferred to enable the
  relevant DOLS authorisation to be sought (and I
  add obtained).

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1. general propositions in respect of issues that
   arise concerning the inter- relationship between
   the MHA and the MCA are dangerous
2. as a general proposition the second part of
   paragraph 58 in J v Foundation Trust is not
   correct, as in the circumstances of this case the
   regimes provide relevant and available
   alternatives,
3. albeit that the legislative history that the DOLS
   provisions were added to the MCA to fill the
   Bournewood gap and thus something not covered by
   the well established regime under the MHA and
   much of the definition of ineligibility in the
   MCA relates to the applicability of the MHA, any
   analysis that is based on or includes the concept
   of primacy of the MHA in the sense used in J
   (or any other sense) should be case specific.
4. I agree with the point made by the SSH to Upper
   Tribunal Judge Jacobs that my references to the
   MHA having primacy in J..were made in and should
   be confined to the application of Case E in that
   case, and I add that even in that confined
   context they need some qualification to expand on
   the point I made that the two statutory schemes
   are not always mutually exclusive and so to
   acknowledge the point set out above that in
   defined circumstances Parliament has created
   alternatives that are relevant factors for the
   relevant decision maker to take into account

36

• The role of the FTT as decision maker in s. 72?
• In the context of detention under MHA
• necessity means necessity
• Dictionary definition- indispensible
• perhaps no alternative or essential

37

• How far does FTT have to go to consider options?
• Limited to readily available
• Perhaps same approach as when considering
  deferred discharge or formal recommendation?
• Very close to Court of Protection role, but
  without the welfare order making powers?

38

• FTT resources?
• Length of hearings?
• Role of medical members?
• Scope of documentation required?
• How far does an Article 5 review have to go to
  comply with ECHR?

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What about other decision makers?

• AMHPs?
• Medical practitioners making recommendations?
• Capacity assessments?
• Consideration of MCA alternatives?