In our case report upon AM v SLAM, we invited comments from our readers, and received the following views from Justin Griffiths, a BIA/AMHP with North Staffordshire NHS Trust. As they represent the view from the ground, we reproduce them in full with no editorial intervention from us:
“As a practicing BIA and AMHP I take a keen interest in any case law around “eligibility”. When considering AM v South London & Maudsley NHS Foundation Trust, I agree with the overall decision relating to use of the Mental Health Act, however I amconcerned about key aspects of the judgement.
DOLS is less restrictive?
I believe that the view that DOLS represents a less restrictive regime in this case is unnecessary. There is little evidence in the judgement to suggest that increased stigma will inevitably lead to more restrictions. I also struggled with the assumption that AM would have more community access / family visits under DOLS than she would under the MHA. Under DOLS this would depend on a BIA setting conditions, but could equally be achieved by under the MHA by application of the least restrictive principle. In addition to this, the lack an accessible independent process of review under DOLS is inherently restrictive. In my experience the Mental Health Tribunal can be a very important driver for least restrictive practice.
I am also concerned that about how this case will be interpreted, although Justice Charles stresses that generalisation is dangerous, I believe that the ability to ‘pick and choose’ between regimes will be misinterpreted, just as the primacy of the Mental Health Act was following the GJ case.
Article 8 Issues
The judgement fails to consider the core Article 8 issues within the case as there is clearly a dispute between the care team and AM’s daughters about her care and treatment. There is also a decision not to release AM into the care of her daughters, which I assume is the factor that indicates a DOL. Although HL v UK is considered, there is no mention of Neary v Hillingdon and that cases direction that Article 8 disputes should be considered by the Court of Protection. It is therefore concerning that the AM case does not advise an application to the Court of Protection.
That aside, in practice I have found thatthe involvement of BIAs and IMCAs via DOLS, in the initial stages of dispute cases can occasionally help to resolve them before they escalate to lengthy court proceedings.
Nearest Relative Rights
Considering the case from an AMHP perspective, I also have concerns that the use of DOLS would have effectively ended the right of the Nearest Relative to object to her mother’s care and treatment. The Nearest Relative is a key safeguard for people detained under the Mental Health Act and without any direction to apply to the Court of Protection, the outcome of the case denies any formal court process that deals with the dispute / objection.
Finally, as a practitioner I believe that that this case only adds to the complexity surrounding interface of mental health legislation and ultimately makes it more difficult for practitioners to safeguard the people the law is meant to protect.”