Following the judgment in Re A v SLAM, readers should consider the process they follow for deciding whether to admit or discharge patients who lack capacity.

Introduction

Mr Justice Charles handed down this judgment as President of the Upper Tribunal Administrative Appeals Chamber on 6 August. We have saved our briefing note on this for your return from summer holidays - hopefully refreshed! It is of significance to any “decision maker” considering whether or not to admit or discharge a patient under the Mental Health Act who may lack capacity.

It also fundamentally changes the previous position (set out by the same judge in GJ v A Foundation Trust) that, where there was a choice between the Mental Capacity Act and the Mental Health Act, the Mental Health Act had primacy. The judgment sets out the approach to be taken when considering whether use of the Mental Health Act (MHA) or Mental Capacity Act (MCA) is the least restrictive option to achieve the purpose sought by admission of a patient.

Summary

This judgment means that, before deciding whether to admit, treat and detain a compliant, incapacitated patient under the provisions of the MHA, consideration should be given as to:

  • Whether or not admission and treatment can be achieved under the application of the MCA/DOLS regime instead
  • Whether that regime would be less restrictive than detention under the MHA 

Background

The case concerned AM, a 78 year old woman with two daughters, C and V. She had been in intermittent contact with mental health services since 1983 when she was admitted to hospital with depression. Her last admission, prior to the one in question, was in 2002 when she was admitted informally and no definite diagnosis of her condition was made.

She lived at home with her daughter, C. On 12 November 2012 she was removed from home to hospital from there, following the execution of an s135 warrant. This was necessary because C had denied access to the mental health team so that they could assess her mother’s health, so AM was admitted to hospital on s2 MHA (the section that allows detention for up to 28 days so that an assessment of AM’s mental health could be carried out).

On 21 November 2012, the First Tier Tribunal considered an application for discharge for AM (presumably made by her daughter, C, although the judgment does not make this clear). The Tribunal did not order discharge, it appears, partly because they were of the view that if AM were no longer detained under section her daughters would take her home and she would therefore be deprived of the benefits of her completed assessment and the treatment that would likely follow it.  

They also said that they were satisfied that, if AM were to be discharged home, C would not co-operate with any medication regime for her mother or with the community team. This was set against a background of previous non-co-operation and AM’s level of insight, which was such that she would need considerable assistance to comply with her medication as she “blatantly lacks capacity to understand what is happening and she lacks insight into her mental disorder”.  

C refused to consent to the s2 being converted to a s3 detention. An application was subsequently made to displace C as AM’s nearest relative. This had the effect of “freezing” the s2 so that it could continue for longer than the 28 day time limit normally applied to it under the provisions of s29(4)(a) of the MHA.  

A further application for discharge came before another First Tier Tribunal on 8 February 2013. Again, the Tribunal ordered that AM should not be discharged, and it is this decision that was the subject of the appeal. It was agreed that:

  • AM had a mental disorder
  • She needed a cognitive assessment
  • She needed treatment in the form of tablets  

It was argued, on AM’s behalf, that she should be discharged from detention (not necessarily from hospital) on the basis that it was not “necessary” for her to be detained as she would stay there voluntarily.

It was also argued that the MHA did not need to be applied in her case: if there was, as a matter of fact, a deprivation of liberty that could be dealt with under the MCA, as an alternative.

The basic issue was therefore whether she would comply with her assessment in hospital. It was clear that, unlike the case of GJ, her admission and possible subsequent treatment was solely in connection with her mental disorder – there was no physical component. If she would comply, was the MHA or the MCA the best route to take?

Mr Justice Charles decided that the issues had not properly been dealt with and remitted the case for reconsideration, applying the approach set out below.

The three Cs: Capacity, Compliance and Choice of Act

The law

Mr Justice Charles analysed the correct approach in law to the issue in considerable detail.

By way of introduction, he set out the most relevant legislation as being the MHA, the MCA, the Code of Practice to the MHA and the Deprivation of Liberty Safeguards (DOLS) Code of Practice. He also confirmed his view that all codes of practice have to be carefully considered before a decision maker gives their decision: it is not enough just to rely on the MHA code to justify a decision.

He confirmed that it:

  • For a detention to be necessary, it has to be the case that the objective sought cannot be achieved by any less restrictive measures
  • This must be by identifying the least restrictive way of best achieving the proposed assessment or treatment by considering and balancing all the relevant factors

Categorising the patient In this case, the parties had accepted a categorisation of four different classes of patient:  

  1. The compliant capacitated.
  2. The compliant incapacitated.
  3. The non-compliant capacitated.
  4. The non-complaint incapacitated.  

Capacity in this context was the capacity to agree:  

  • To admission
  • To stay in hospital while the purpose of the admission is achieved
  • To the circumstances relating to a possible deprivation of liberty  

He pointed out that s131 of the MHA clearly contemplates the situation where a person with capacity agrees to the arrangements for admission and so agrees there is no need (or necessity) to formally detain them under the provisions of the Act. He also set out the following basic conclusions on capacity:

  • The MCA cannot apply in respect of any matter where the relevant person has the capacity to decide on that matter for himself or herself
  • A person with capacity to do so can consent to a deprivation of his or her liberty
  • A person with relevant capacity who refuses admission to hospital or demands to leave (in other words a capacitated non-compliant individual at (iii) above) can only be detained there under the MHA  

The compliant capacitated patient

The position becomes more difficult, however, with the compliant capacitated person (at (i) above).

He referred to paragraphs 4.9 and 4.11 of the MHA code of practice, which indicate that generally such a person who agrees to admission can be admitted informally and that detention under the Act is not necessary. This is also in part influenced by s131 MHA, which states that nothing will prevent informal admission, (it does not set out particular circumstances where informal admission is appropriate).

He then went on to consider the appropriateness of the MCA for patients with mental disorder, stressing that “no authorisation of a deprivation of liberty by the Court of Protection or DOLS is possible under the MCA if the relevant person is ‘ineligible to be deprived of his liberty’ under s16A MCA and paragraph 17 of Schedule A1 to the MCA”.

There then follows an analysis of the Bournewood Gap and the measures introduced to try and fill it by the DOLS procedure. Mr Justice Charles concludes that the DOLS were intended to be a real alternative to detention under the MHA, where the qualifying conditions are fulfilled by the patient and that, as such, it is right that the DOLS regime should be considered where available and appropriate, instead of detention under the MHA.

The need to consider whether it is “necessary” for a patient to be detained under the MHA to achieve assessment and/or treatment therefore requires consideration of whether the same end can be achieved under the MCA and DOLS, and if so, which will be the least restrictive way of achieving that end.

The process to follow Mr Justice Charles broke the process down into three stages. Stage 1: Need for and mode of admission  

  • Do we need to admit this patient?
    • If the answer is no, there is no need to consider further (obviously!).
    • If the answer is yes, then first ask if they are ineligible for DOLS, in other words, is the purpose of the authorisation under MCA/DOLS to authorise the accommodation of the patient as a mental health patient? And if yes, do they object to being a mental health patient or to some of the treatment?  

DOLS can apply only if the patient is compliant both in terms of admission and treatment.

  • Does the patient have capacity to consent to informal admission under s131 MHA?
    • If the answer is yes, the MCA cannot apply and is irrelevant.
    • If the answer is no, is the patient compliant or non-compliant?  

Stage 2: Applicability of the MCA

  • Might the hospital be able to rely on the provisions of the MCA to lawfully assess or treat the relevant person?
    • Is the patient a compliant, incapacitated person? If so, will they comply with all elements of what is proposed concerning their assessment and treatment?
    • Are the proposed circumstances for that assessment and treatment such that, looked at objectively, there is a risk of a deprivation of liberty being required (the “objective element”)? If the answer to this question is yes, then:
    • If the proposed placement is in hospital, is the relevant person ineligible to be deprived of their liberty under DOLS? and, if the answer to that is no:
    • Whether the circumstances are such that an authorisation under DOLS is required?

When looking at the final issue in Stage 2, the decision maker has to refer back to whether the objective element of deprivation of liberty is or is likely to be satisfied. “Is likely” is the test used to determine whether a managing authority (in this case, the hospital) has a duty to request a standard authorisation. In this case, Mr Justice Charles said that his view of “likely” means whether there is a real risk that the patient will be a “detained resident”, that is, detained in hospital for the purposes of being given care or treatment in circumstances that amount to a deprivation of their liberty or, put another way, when, judged objectively, there is a risk that cannot be ignored that the relevant circumstances amount to a deprivation of liberty.

Stage 3: Decision as to which Act to use

Having determined that the relevant person lacks capacity and that the hospital might be able to rely on the MCA to lawfully assess or treat him or her, there then needs to be a consideration of whether the MCA or MHA should be preferred. This requires:

  • Consideration of the actual availability of the MCA regime
  • Comparison of the impact of the MCA regime with the impact of the MHA regime
  • Taking a fact sensitive approach, having regard to all the relevant circumstances, to determine the least restrictive way of best achieving the proposed assessment and treatment, to include:
    • Consideration of the best interests of the patient (in line with a DOLS best interests assessment)
    • Considerations that could be imposed under the DOLS
    • Whether there is fluctuating capacity
    • The comparative impact of the review and scrutiny provisions of the MHA and the MCA/DOLS process
    • The likelihood of continued compliance
    • Triggers to non-compliance and their effect on the suitability of the regime used
    • Having regard to the practical or actual availability of the MCA regime (bearing in mind that the decision maker cannot compel the DOLS to be used or authorised, so whether it can be ordered or compelled and when will be relevant considerations)  

Summary of the process Mr Justice Charles analysed the process as follows:  

  • The decision makers have to apply the statutory tests imposed by the MHA. The possible application of the MCA and DOLS are relevant to this.
  • The decision makers have to assess whether, as a result of the identified risks, the relevant person ought to be detained or kept in hospital in circumstances that objectively give rise to a risk that cannot be ignored that they amount to a deprivation of liberty.
  • If there is such a risk, a value judgment is triggered, applying the “necessity test” as between the choices that are or will or may become available.
  • When applying the “necessity test”, the decision maker is looking for the alternative that best achieves the objective of assessment or treatment in the least restrictive way, whether this is under ss2 or 3 MHA. This requires consideration of the MCA/DOLS against the MHA detention to ensure that deprivation of liberty is lawful and governed by a statutory regime.
  • The decision maker needs to consider the theoretical and practical availability of the MCA/DOLS authorisation, as well as the overall impact of each statutory regime in best achieving the desired outcome.  

Additional issues The judgment also contains a few other pieces of guidance:

  • When a compliant incapacitated person is discharged from detention under the MHA, such discharge should usually be deferred to enable the relevant DOLS authorisation to be sought (it is assumed that the patient is remaining in hospital and just being discharged from section, not being discharged from hospital as well).
  • General propositions in respect of issues that arise concerning the interrelationship between the MHA and the MCA are dangerous.
  • As a general proposition, his previous statement in GJ v a Foundation Trust that the MHA has primacy is not correct. As is shown by this case, the regimes provide relevant and available alternatives.
  • Any analysis of any case that is based on or includes the concept of primacy of the MHA should be case and fact specific.
  • The MHA and MCA are not mutually exclusive regimes: in certain circumstances Parliament created alternative regimes and these are factors for the decision maker to take into account.
  • Each decision maker has to apply his or her jurisdiction and powers and the provisions of each statute governing their decision making process (the determinative statutory test).
  • As and when the existence and availability of an alternative statutory scheme is relevant to the determinative statutory test, that and the impact of the alternative regimes must be assessed by the decision maker. In other words, the Tribunal exercising its jurisdiction under the MHA has to consider the relevant alternatives in hospital when considering whether it is necessary for the patient to remain detained under the provisions of the MHA.
  • Two decision makers applying the correct approach could lawfully reach different conclusions.  

What does this mean? That is a very good question! It has taken us some time to digest the judgment but, for anyone dealing with an incapacitated compliant patient, this judgment means that, before deciding whether to admit, treat and detain under the MHA, consideration should be given as to whether or not admission and treatment can be achieved under the application of the MCA/DOLS regime instead and, if so, whether that regime would be less restrictive than detention under the MHA.  

Mr Justice Charles stated, at paragraph 67 of his judgment that it will generally but not always be more appropriate to rely on DOLS. He accepted, at paragraph 68, that there may be cases in which a compliant incapacitated person may properly and lawfully be admitted, assessed or treated and detained under Part II of the MHA when he or she could be assessed or treated pursuant to s131 MHA and sections 5 and 6 of the MCA and be the subject of a DOLS authorisation.  

Failure to do so may lead to a review or appeal of the decision on the basis that the decision maker has erred in law by failing to consider the alternative statutory regime.  

This means that anyone taking this sort of decision needs to fully understand, not just the MHA, but also the MCA and the DOLS regimes too!

Practicalities

This is a lot to consider, possibly in the heat of the moment, for anyone involved in a relevant decision. If it is any consolation, Mr Justice Charles noted the “daunting task” and “complicated legislative provisions” applicable to this!

Trusts may wish to prepare checklists or templates for their staff involved in decision making and we can assist you with this.

Consideration needs to be given to how you will deal with different decision makers disagreeing with each other.

We suggest there is still plenty of scope for uncertainty here and no doubt more cases will follow. In any event we await the Supreme Court Decision in Cheshire West later this year.

  • As a general proposition, his previous statement in GJ v a Foundation Trust that the MHA has primacy is not correct. As is shown by this case, the regimes provide relevant and available alternatives.
  • Any analysis of any case that is based on or includes the concept of primacy of the MHA should be case and fact specific.
  • The MHA and MCA are not mutually exclusive regimes: in certain circumstances Parliament created alternative regimes and these are factors for the decision maker to take into account.
  • Each decision maker has to apply his or her jurisdiction and powers and the provisions of each statute governing their decision making process (the determinative statutory test).
  • As and when the existence and availability of an alternative statutory scheme is relevant to the determinative statutory test, that and the impact of the alternative regimes must be assessed by the decision maker. In other words, the Tribunal exercising its jurisdiction under the MHA has to consider the relevant alternatives in hospital when considering whether it is necessary for the patient to remain detained under the provisions of the MHA.
  • Two decision makers applying the correct approach could lawfully reach different conclusions.  

What does this mean?

That is a very good question! It has taken us some time to digest the judgment but, for anyone dealing with an incapacitated compliant patient, this judgment means that, before deciding whether to admit, treat and detain under the MHA, consideration should be given as to whether or not admission and treatment can be achieved under the application of the MCA/DOLS regime instead and, if so, whether that regime would be less restrictive than detention under the MHA.

Mr Justice Charles stated, at paragraph 67 of his judgment that it will generally but not always be more appropriate to rely on DOLS. He accepted, at paragraph 68, that there may be cases in which a compliant incapacitated person may properly and lawfully be admitted, assessed or treated and detained under Part II of the MHA when he or she could be assessed or treated pursuant to s131 MHA and sections 5 and 6 of the MCA and be the subject of a DOLS authorisation.  

Failure to do so may lead to a review or appeal of the decision on the basis that the decision maker has erred in law by failing to consider the alternative statutory regime.

This means that anyone taking this sort of decision needs to fully understand, not just the MHA, but also the MCA and the DOLS regimes too!

Practicalities

This is a lot to consider, possibly in the heat of the moment, for anyone involved in a relevant decision. If it is any consolation, Mr Justice Charles noted the “daunting task” and “complicated legislative provisions” applicable to this!

Trusts may wish to prepare checklists or templates for their staff involved in decision making and we can assist you with this.

Consideration needs to be given to how you will deal with different decision makers disagreeing with each other.

We suggest there is still plenty of scope for uncertainty here and no doubt more cases will follow. In any event we await the Supreme Court Decision in Cheshire West later this year.

Post script…

It is also worth noting that The Law Society mental health and disability committee and wills and equity committee have accused the Government of allowing a situation to develop where there are "wide regional variations" in the use of the safeguards built in to the MCA and there are significant problems with the DOLS scheme and its consistent application across the country. The full response to a call for evidence by the House of Lords select committee, which is reviewing the MCA and the way that the DOLS scheme is working, is expected to be published in late September 2013.