briefing 18 September 2013 MHA r MCA a mre flexible apprach? Fllwing the judgment in Re A v SLAM, readers shuld cnsider the prcess they fllw fr deciding whether t admit r discharge patients wh lack capacity. Intrductin Mr Justice Charles handed dwn this judgment as President f the Upper Tribunal Administrative Appeals Chamber n 6 August. We have saved ur briefing nte n this fr yur return frm summer hlidays - hpefully refreshed! It is f significance t any decisin maker cnsidering whether r nt t admit r discharge a patient under the Mental Health Act wh may lack capacity. It als fundamentally changes the previus psitin (set ut by the same judge in GJ v A Fundatin Trust) that, where there was a chice between the Mental Capacity Act and the Mental Health Act, the Mental Health Act had primacy. The judgment sets ut the apprach t be taken when cnsidering whether use f the Mental Health Act (MHA) r Mental Capacity Act (MCA) is the least restrictive ptin t achieve the purpse sught by admissin f a patient. Summary This judgment means that, befre deciding whether t admit, treat and detain a cmpliant, incapacitated patient under the prvisins f the MHA, cnsideratin shuld be given as t: Whether r nt admissin and treatment can be achieved under the applicatin f the MCA/DOLS regime instead Whether that regime wuld be less restrictive than detentin under the MHA Backgrund The case cncerned AM, a 78 year ld wman with tw daughters, C and V. She had been in intermittent cntact with mental health services since 1983 when she was admitted t hspital with depressin. Her last admissin, prir t the ne in questin, was in 2002 when she was admitted infrmally and n definite diagnsis f her cnditin was made. She lived at hme with her daughter, C. On 12 Nvember 2012 she was remved frm hme t hspital frm there, fllwing the executin f an s135 warrant. This was necessary because C had denied access t the mental health team s that they culd assess her mther s health, s AM was admitted t hspital n s2 MHA (the sectin that allws detentin fr up t 28 days s that an assessment f AM s mental health culd be carried ut). On 21 Nvember 2012, the First Tier Tribunal cnsidered an applicatin fr discharge fr AM (presumably made by her daughter, C, althugh the judgment des nt make this clear). The Tribunal did nt rder discharge, it 1
appears, partly because they were f the view that if AM were n lnger detained under sectin her daughters wuld take her hme and she wuld therefre be deprived f the benefits f her cmpleted assessment and the treatment that wuld likely fllw it. They als said that they were satisfied that, if AM were t be discharged hme, C wuld nt c-perate with any medicatin regime fr her mther r with the cmmunity team. This was set against a backgrund f previus nnc-peratin and AM s level f insight, which was such that she wuld need cnsiderable assistance t cmply with her medicatin as she blatantly lacks capacity t understand what is happening and she lacks insight int her mental disrder. C refused t cnsent t the s2 being cnverted t a s3 detentin. An applicatin was subsequently made t displace C as AM s nearest relative. This had the effect f freezing the s2 s that it culd cntinue fr lnger than the 28 day time limit nrmally applied t it under the prvisins f s29(4)(a) f the MHA. A further applicatin fr discharge came befre anther First Tier Tribunal n 8 February 2013. Again, the Tribunal rdered that AM shuld nt be discharged, and it is this decisin that was the subject f the appeal. It was agreed that: AM had a mental disrder She needed a cgnitive assessment She needed treatment in the frm f tablets It was argued, n AM s behalf, that she shuld be discharged frm detentin (nt necessarily frm hspital) n the basis that it was nt necessary fr her t be detained as she wuld stay there vluntarily. It was als argued that the MHA did nt need t be applied in her case: if there was, as a matter f fact, a deprivatin f liberty that culd be dealt with under the MCA, as an alternative. The basic issue was therefre whether she wuld cmply with her assessment in hspital. It was clear that, unlike the case f GJ, her admissin and pssible subsequent treatment was slely in cnnectin with her mental disrder there was n physical cmpnent. If she wuld cmply, was the MHA r the MCA the best rute t take? Mr Justice Charles decided that the issues had nt prperly been dealt with and remitted the case fr recnsideratin, applying the apprach set ut belw. The three Cs: Capacity, Cmpliance and Chice f Act The law Mr Justice Charles analysed the crrect apprach in law t the issue in cnsiderable detail. By way f intrductin, he set ut the mst relevant legislatin as being the MHA, the MCA, the Cde f Practice t the MHA and the Deprivatin f Liberty Safeguards (DOLS) Cde f Practice. He als cnfirmed his view that all cdes f practice have t be carefully cnsidered befre a decisin maker gives their decisin: it is nt enugh just t rely n the MHA cde t justify a decisin. He cnfirmed that it: Fr a detentin t be necessary, it has t be the case that the bjective sught cannt be achieved by any less restrictive measures This must be by identifying the least restrictive way f best achieving the prpsed assessment r treatment by cnsidering and balancing all the relevant factrs. 2
Categrising the patient In this case, the parties had accepted a categrisatin f fur different classes f patient: (i) The cmpliant capacitated. (ii) The cmpliant incapacitated. (iii) The nn-cmpliant capacitated. (iv) The nn-cmplaint incapacitated. Capacity in this cntext was the capacity t agree: T admissin T stay in hspital while the purpse f the admissin is achieved T the circumstances relating t a pssible deprivatin f liberty He pinted ut that s131 f the MHA clearly cntemplates the situatin where a persn with capacity agrees t the arrangements fr admissin and s agrees there is n need (r necessity) t frmally detain them under the prvisins f the Act. He als set ut the fllwing basic cnclusins n capacity: The MCA cannt apply in respect f any matter where the relevant persn has the capacity t decide n that matter fr himself r herself A persn with capacity t d s can cnsent t a deprivatin f his r her liberty A persn with relevant capacity wh refuses admissin t hspital r demands t leave (in ther wrds a capacitated nn-cmpliant individual at (iii) abve) can nly be detained there under the MHA The cmpliant capacitated patient The psitin becmes mre difficult, hwever, with the cmpliant capacitated persn (at (i) abve). He referred t paragraphs 4.9 and 4.11 f the MHA cde f practice, which indicate that generally such a persn wh agrees t admissin can be admitted infrmally and that detentin under the Act is nt necessary. This is als in part influenced by s131 MHA, which states that nthing will prevent infrmal admissin, (it des nt set ut particular circumstances where infrmal admissin is apprpriate). He then went n t cnsider the apprpriateness f the MCA fr patients with mental disrder, stressing that n authrisatin f a deprivatin f liberty by the Curt f Prtectin r DOLS is pssible under the MCA if the relevant persn is ineligible t be deprived f his liberty under s16a MCA and paragraph 17 f Schedule A1 t the MCA. There then fllws an analysis f the Burnewd Gap and the measures intrduced t try and fill it by the DOLS prcedure. Mr Justice Charles cncludes that the DOLS were intended t be a real alternative t detentin under the MHA, where the qualifying cnditins are fulfilled by the patient and that, as such, it is right that the DOLS regime shuld be cnsidered where available and apprpriate, instead f detentin under the MHA. The need t cnsider whether it is necessary fr a patient t be detained under the MHA t achieve assessment and/r treatment therefre requires cnsideratin f whether the same end can be achieved under the MCA and DOLS, and if s, which will be the least restrictive way f achieving that end. 3
The prcess t fllw Mr Justice Charles brke the prcess dwn int three stages. Stage 1: Need fr and mde f admissin D we need t admit this patient? If the answer is n, there is n need t cnsider further (bviusly!). If the answer is yes, then first ask if they are ineligible fr DOLS, in ther wrds, is the purpse f the authrisatin under MCA/DOLS t authrise the accmmdatin f the patient as a mental health patient? And if yes, d they bject t being a mental health patient r t sme f the treatment? DOLS can apply nly if the patient is cmpliant bth in terms f admissin and treatment. Des the patient have capacity t cnsent t infrmal admissin under s131 MHA? If the answer is yes, the MCA cannt apply and is irrelevant. If the answer is n, is the patient cmpliant r nn-cmpliant? Stage 2: Applicability f the MCA Might the hspital be able t rely n the prvisins f the MCA t lawfully assess r treat the relevant persn? Is the patient a cmpliant, incapacitated persn? If s, will they cmply with all elements f what is prpsed cncerning their assessment and treatment? Are the prpsed circumstances fr that assessment and treatment such that, lked at bjectively, there is a risk f a deprivatin f liberty being required (the bjective element )? If the answer t this questin is yes, then: If the prpsed placement is in hspital, is the relevant persn ineligible t be deprived f their liberty under DOLS? and, if the answer t that is n: Whether the circumstances are such that an authrisatin under DOLS is required? When lking at the final issue in Stage 2, the decisin maker has t refer back t whether the bjective element f deprivatin f liberty is r is likely t be satisfied. Is likely is the test used t determine whether a managing authrity (in this case, the hspital) has a duty t request a standard authrisatin. In this case, Mr Justice Charles said that his view f likely means whether there is a real risk that the patient will be a detained resident, that is, detained in hspital fr the purpses f being given care r treatment in circumstances that amunt t a deprivatin f their liberty r, put anther way, when, judged bjectively, there is a risk that cannt be ignred that the relevant circumstances amunt t a deprivatin f liberty. Stage 3: Decisin as t which Act t use Having determined that the relevant persn lacks capacity and that the hspital might be able t rely n the MCA t lawfully assess r treat him r her, there then needs t be a cnsideratin f whether the MCA r MHA shuld be preferred. This requires: 4
Cnsideratin f the actual availability f the MCA regime Cmparisn f the impact f the MCA regime with the impact f the MHA regime Taking a fact sensitive apprach, having regard t all the relevant circumstances, t determine the least restrictive way f best achieving the prpsed assessment and treatment, t include: Cnsideratin f the best interests f the patient (in line with a DOLS best interests assessment) Cnsideratins that culd be impsed under the DOLS Whether there is fluctuating capacity The cmparative impact f the review and scrutiny prvisins f the MHA and the MCA/DOLS prcess The likelihd f cntinued cmpliance Triggers t nn-cmpliance and their effect n the suitability f the regime used Having regard t the practical r actual availability f the MCA regime (bearing in mind that the decisin maker cannt cmpel the DOLS t be used r authrised, s whether it can be rdered r cmpelled and when will be relevant cnsideratins) Summary f the prcess Mr Justice Charles analysed the prcess as fllws: The decisin makers have t apply the statutry tests impsed by the MHA. The pssible applicatin f the MCA and DOLS are relevant t this. The decisin makers have t assess whether, as a result f the identified risks, the relevant persn ught t be detained r kept in hspital in circumstances that bjectively give rise t a risk that cannt be ignred that they amunt t a deprivatin f liberty. If there is such a risk, a value judgment is triggered, applying the necessity test as between the chices that are r will r may becme available. When applying the necessity test, the decisin maker is lking fr the alternative that best achieves the bjective f assessment r treatment in the least restrictive way, whether this is under ss2 r 3 MHA. This requires cnsideratin f the MCA/DOLS against the MHA detentin t ensure that deprivatin f liberty is lawful and gverned by a statutry regime. The decisin maker needs t cnsider the theretical and practical availability f the MCA/DOLS authrisatin, as well as the verall impact f each statutry regime in best achieving the desired utcme. Additinal issues The judgment als cntains a few ther pieces f guidance: When a cmpliant incapacitated persn is discharged frm detentin under the MHA, such discharge shuld usually be deferred t enable the relevant DOLS authrisatin t be sught (it is assumed that the patient is remaining in hspital and just being discharged frm sectin, nt being discharged frm hspital as well). General prpsitins in respect f issues that arise cncerning the interrelatinship between the MHA and the MCA are dangerus. 5
As a general prpsitin, his previus statement in GJ v a Fundatin Trust that the MHA has primacy is nt crrect. As is shwn by this case, the regimes prvide relevant and available alternatives. Any analysis f any case that is based n r includes the cncept f primacy f the MHA shuld be case and fact specific. The MHA and MCA are nt mutually exclusive regimes: in certain circumstances Parliament created alternative regimes and these are factrs fr the decisin maker t take int accunt. Each decisin maker has t apply his r her jurisdictin and pwers and the prvisins f each statute gverning their decisin making prcess (the determinative statutry test). As and when the existence and availability f an alternative statutry scheme is relevant t the determinative statutry test, that and the impact f the alternative regimes must be assessed by the decisin maker. In ther wrds, the Tribunal exercising its jurisdictin under the MHA has t cnsider the relevant alternatives in hspital when cnsidering whether it is necessary fr the patient t remain detained under the prvisins f the MHA. Tw decisin makers applying the crrect apprach culd lawfully reach different cnclusins. What des this mean? That is a very gd questin! It has taken us sme time t digest the judgment but, fr anyne dealing with an incapacitated cmpliant patient, this judgment means that, befre deciding whether t admit, treat and detain under the MHA, cnsideratin shuld be given as t whether r nt admissin and treatment can be achieved under the applicatin f the MCA/DOLS regime instead and, if s, whether that regime wuld be less restrictive than detentin under the MHA. Mr Justice Charles stated, at paragraph 67 f his judgment that it will generally but nt always be mre apprpriate t rely n DOLS. He accepted, at paragraph 68, that there may be cases in which a cmpliant incapacitated persn may prperly and lawfully be admitted, assessed r treated and detained under Part II f the MHA when he r she culd be assessed r treated pursuant t s131 MHA and sectins 5 and 6 f the MCA and be the subject f a DOLS authrisatin. Failure t d s may lead t a review r appeal f the decisin n the basis that the decisin maker has erred in law by failing t cnsider the alternative statutry regime. This means that anyne taking this srt f decisin needs t fully understand, nt just the MHA, but als the MCA and the DOLS regimes t! Practicalities This is a lt t cnsider, pssibly in the heat f the mment, fr anyne invlved in a relevant decisin. If it is any cnslatin, Mr Justice Charles nted the daunting task and cmplicated legislative prvisins applicable t this! Trusts may wish t prepare checklists r templates fr their staff invlved in decisin making and we can assist yu with this. Cnsideratin needs t be given t hw yu will deal with different decisin makers disagreeing with each ther. We suggest there is still plenty f scpe fr uncertainty here and n dubt mre cases will fllw. In any event we await the Supreme Curt Decisin in Cheshire West later this year. 6
Training fr yur team We will be lking at this in ur 2014 MHA Update seminars (prgramme dates t be annunced) but in the meantime if yu wuld like t discuss the implicatins f this judgment further, r wuld like t discuss a bespke training sessin fr yur team, please d get in tuch with ne f ur team (belw). Pst script It is als wrth nting that The Law Sciety mental health and disability cmmittee and wills and equity cmmittee have accused the Gvernment f allwing a situatin t develp where there are "wide reginal variatins" in the use f the safeguards built in t the MCA and there are significant prblems with the DOLS scheme and its cnsistent applicatin acrss the cuntry. The full respnse t a call fr evidence by the Huse f Lrds select cmmittee, which is reviewing the MCA and the way that the DOLS scheme is wrking, is expected t be published in late September 2013. Get in tuch Jill Masn Partner T +44(0)121 456 8367 jill.masn@mills-reeve.cm Ruth Creed Assciate T +44(0)121 456 8323 ruth.creed@mills-reeve.cm Philip Grey Assciate (Barrister) T +44(0)1223 222463 philip.grey@mills-reeve.cm Helen Burnell Assciate T +44(0)20 7648 9237 helen.burnell@mills-reeve.cm Kevin Duce Assciate T +44(0)121 456 8263 kevin.duce@mills-reeve.cm Sarah Garrd Assciate T +44(0)1603 693291 sarah.garrd@mills-reeve.cm Jill Westn Assciate T +44(0)121 456 8450 jill.westn@mills-reeve.cm Laura Jlley Senir Slicitr T +44(0)1223 222448 laura.jlley@mills-reeve.cm www.mills-reeve.cm T +44(0)844 561 0011 Mills & Reeve LLP is a limited liability partnership authrised and regulated by the Slicitrs Regulatin Authrity and registered in England and Wales with registered number OC326165. Its registered ffice is at Funtain Huse, 130 Fenchurch Street, Lndn, EC3M 5DJ, which is the Lndn ffice f Mills & Reeve LLP. A list f members may be inspected at any f the LLP's ffices. The term "partner" is used t refer t a member f Mills & Reeve LLP. The cntents f this dcument are cpyright Mills & Reeve LLP. All rights reserved. This dcument cntains general advice and cmments nly and therefre specific legal advice shuld be taken befre reliance is placed upn it in any particular circumstances. Where hyperlinks are prvided t third party websites, Mills & Reeve LLP is nt respnsible fr the cntent f such sites. Mills & Reeve LLP will prcess yur persnal data fr its business and marketing activities fairly and lawfully in accrdance with prfessinal standards and the Data Prtectin Act 1998. If yu d nt wish t receive any marketing cmmunicatins frm Mills & Reeve LLP, please cntact Suzannah Armstrng n 01603 693459 r email suzannah.armstrng@mills-reeve.cm 7