Judge: Charles J.
Citation:  UKUT 0365 (AAC)
Summary: It is with some trepidation that we will seek to summarise this comprehensive decision of Charles J It is of significance to all those, including the First-tier Tribunal (‘FTT’), who make admission and discharge decisions at the interface between the MHA 1983 and the MCA.
A 78 year old woman (‘AM’) was removed from her home in execution of a warrant under MHA s.135(1) in order to be assessed under MHA s.2. The First-tier Tribunal (‘FTT’) refused her application for discharge in the belief that her daughters would take her home and one of them – AM’s primary carer and nearest relative – would not co-operate with medication or with the community team. Her detention under s.2 continued beyond the 28 days whilst proceedings to displace the nearest relative were underway.
A second tribunal application contended that she should be discharged from MHA s.2 on the basis that she would agree to stay in hospital on a voluntary basis and so the detention was not necessary and therefore not warranted. It was not in dispute that she lacked the relevant capacity and so, it was argued, she could be assessed and treated under MCA s.5 and if she was deprived of liberty,that could be authorised under DOLS. All parties agreed that the purpose of her being in hospital was to receive psychiatric treatment.
Charles J considered that “i) in the circumstances defined therein the DOLS were intended to and do provide an alternative basis to that provided by the MHA to authorise the deprivation of the liberty of an incapacitated person for a range of purposes including his or her assessment or treatment for mental or physical disorders in hospital, and so ii) a decision maker under the MHA has to consider whether that alternative is available and, if it is, whether it should be used when he or she applies the “necessity test” set by the MHA.” For decision-makers having to determine whether the MHA or DOLS should be used where the person requires assessment or treatment as an in-patient in a psychiatric hospital where they might be deprived of liberty, there were three questions to consider (which we paraphrase):
(1) Does the person have capacity to consent to admission as an informal patient?
“40. That question will be likely to include consideration of the person’s capacity to agree (a) to the relevant admission to hospital for the relevant purpose, (b) to stay in hospital whilst its purpose is carried out and (c) to the circumstances relating to a possible deprivation of liberty that will prevail during that admission.
41. I pause to add that it seems to me that whilst in theory distinctions between the elements of capacity described above could arise it is unlikely that they will do so with any regularity in practice. Also, it seems to me that it may well be difficult to assert that the person does not have the capacity to consent to the assessment or treatment but does have the capacity to agree to be admitted to and remain in hospital in the relevant circumstances and for the relevant period, and so whilst the assessment is carried out or the ‘treatment is given that requires the person to be an in-patient.”
If they have capacity, the MCA is irrelevant. So if the person agrees, they can be informally admitted. If they disagree, the tests set by the MHA will be determinative (paragraph 43). If they lack capacity, the second question is…
(2) Might the hospital be able to rely on the provisions of the MCA to lawfully assess or treat the person?
This requires consideration of two matters. First, whether the person will comply with all the elements of what is being proposed, taking into account the degree of compliance, the risks of non-compliance and what might trigger them. After all, a hospital cannot rely on the MCA to lawfully assess and treat a non-compliant incapacitated mental health patient as they will generally be ineligible.
Secondly, one must consider the application of MCA/DOLS if the person “is or is likely to be” confined in a particular restricted space for a not negligible time (ie the objective element of a DOL). “Likely” meant there being a “real risk or possibility” rather than it being “probable” or “more likely than not”. After commenting on the difficulties experienced by the courts in identifying a DOL, his Lordship went on to say: “A decision of the Supreme Court is awaited on the subject, but it is likely that whatever analysis is given by the Supreme Court the position will remain that two decision makers applying the correct approach could lawfully reach different answers” (paragraph 55). So, confirming an earlier judgment, Charles J held that “… the DOLS regime … applies when it appears that judged objectively there is a risk that cannot sensibly be ignored that the relevant circumstances amount to a deprivation of liberty” (paragraph 59). In such a case, the decision-maker must consider whether the person is eligible for DOLS and whether an authorisation would be required.
(3) If there is a choice between reliance on the MHA 1983 and the MCA 2005, which is the least restrictive way of best achieving the proposed assessment or treatment?
His Lordship accepted that “Although an authorisation under the DOLS will not inevitably be less restrictive: a) the perception of many is that detention under the MHA carries a stigma and this supports the view that generally it will be more restrictive than an authorisation of a deprivation of liberty under DOLS, and b) an authorisation under the DOLS can where appropriate be made under conditions that would render it less restrictive (e.g. in respect of family visits or to the community).” He continued:
“67… as was submitted on behalf of the SSH and is recognised in paras. 1.3 and 4.22 of the MHA Code of Practice, it will generally but not always be more appropriate to rely on DOLS in such circumstances and so, when on an objective assessment, there is a risk that cannot sensibly be ignored that a compliant incapacitated person will be being deprived of his liberty in hospital in the circumstances relating to his or her assessment or treatment for the purposes set out in ss. 2 or 3 MHA.
68… the correct position is 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 MHA when he or she could be assessed or treated pursuant to s. 131 MHA and ss 5 and 6 MCA and be the subject of the DOLS [eg see MHA Code para 4.21 and DOLS Code para 4.48].”
In answering this third question, Charles J emphasised that the decision-maker must “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” (para 72). He continued:
“73. This involves the FTT (and an earlier MHA decision maker) taking a fact sensitive approach, having regard to all the relevant circumstances, to the determination of the “necessity test” and thus in the search for and identification of the least restrictive way of best achieving the proposed assessment or treatment (see paragraphs 15 and 16 above). This will include:
i) consideration of what is in the best interests of the incapacitated person in line with the best interests assessment in the DOLS process, and so for example conditions that can be imposed under the DOLS, fluctuating capacity and the comparative impact of both the independent scrutiny and review and the enforcement provisions relating to the MHA scheme on the one hand and the MCA scheme and its DOLS on the other, and possibly
ii) as mentioned in paragraph 50 above a consideration of the likelihood of continued compliance and triggers to possible non-compliance and their effect on the suitability of the regimes, which links to the points made in paragraph 4.21 of the MHA Code of Practice and paragraph 4.48 Deprivation of Liberty Safeguards Code of Practice.
74. 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  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).
75. In my judgment, the rationale for this more flexible approach, is that in certain circumstances which it has defined in the MHA and the MCA Parliament has provided statutory regimes which may or do provide alternatives and so choices which fall to be considered by the relevant statutory decision makers under the two schemes. This is such a situation but it is one in which the FTT only has jurisdiction (and power) to make a decision applying the MHA. This has the results that:
i) the FTT (and earlier decision makers under the MHA) have to apply the statutory tests imposed by the MHA and the possible application of the MCA and its DOLS are relevant to that exercise,
ii) the FTT (and the earlier decision makers under the MHA) have to assess whether as a result of the identified risks the relevant person ought to be detained, or kept in hospital in circumstances which on a objective assessment give rise to a risk that cannot be ignored that they amount to a deprivation of liberty (see for example paragraph 22 of Upper Tribunal Judge Jacobs decision in DN v Northumberland & Wear NHS Foundation Trust),
iii) if the answer is “yes”, this triggers a value judgment applying the “necessity test” as between the choices that are or will or may become available,
iv) the search applying the MHA “necessity test” is for the alternative that best achieves the objective of assessment or treatment of the type described in ss. 2 and 3 MHA in the least restrictive way. This potentially introduces tensions and so a need to balance the impact of detention under the MCA and an authorisation under the DOLS as the means of ensuring that a deprivation of liberty to best achieve the desired objective is lawful and governed by a statutory regime, and
v) the theoretical and practical availability of the MCA regime and its DOLS is one of the factors that needs to be considered by the MHA decision maker in carrying out that search, as are their overall impact in best achieving the desired objective when compared with other available choices and so detention under ss. 2 or 3 MHA.”
On the facts, AM lacked capacity but there was an arguable case that she would not be compliant throughout the proposed assessment and any later treatment. Hence the matter was remitted to differently constituted FTT to determine the compliance issue.
Comment: This decision illustrates how fact-sensitive the enquiry must be into which regime of detention is invoked. Particularly significant is the judicial recognition of the explicit role of DOLS when deciding whether detention is warranted under the MHA necessity test. All AMHPs and doctors making medical recommendations under the MHA must therefore have as good an understanding as is intellectually possible (!) of DOLS (MCA Schedule 1A case E especially).
Many, but nowhere near all, patients detained under the MHA are unable to decide whether to be admitted to a psychiatric ward (or to remain there following MHA detention). For many there is a possibility that they will be deprived of liberty given the very nature of the setting. So often the applicable regime of detention will ultimately depend upon their likely compliance and the availability of that regime.
A significant gap still remains. What happens where a person is within scope of the MHA 1983 but cannot be detained under it? For example, what happens where an AMHP considers that an application under the MHA 1983 ought not be made and a best interests assessor considers that a patient is within scope of the MHA 1983 and is objecting to the mental health treatment in question, and is hence ineligible for a DOLS authorisation? In this scenario, the patient would fall between the two regimes of detention, as he would be ineligible under the MCA 2005 but not detained under the MHA 1983. Prior to AM, decision-makers might have sought to press for the MHA regime by citing the judgment of Charles J in J v. Foundation Trust  Fam 70:
“58. In my judgment, the MHA 1983 has primacy in the sense that the relevant decision makers under both the MHA 1983 and the MCA should approach the questions they have to answer relating to the application of the MHA 1983 on the basis of an assumption that an alternative solution is not available under the MCA.
59. As appears later, in my view this does not mean that the two regimes are necessarily always mutually exclusive. But it does mean, as mentioned earlier, that it is not lawful for the medical practitioners referred to in ss. 2 and 3 of 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) that they consider render one regime preferable to the other in the circumstances of the given case.”
However, in a key postscript at paragraph 78 of the judgment in AM, his Lordship has held that, although paragraph 59 is correct, paragraph 58 is not:
“i) general propositions in respect of issues that arise concerning the interrelationship between the MHA and the MCA are dangerous,
ii) 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,
iii) 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 paragraph 58 of J v Foundation Trust (or any other sense) should be case specific, and
iv) I agree with the point made by the SSH to Upper Tribunal Judge Jacobs that my references to the MHA having primacy in J v Foundation Trust 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 factors for the relevant decision maker to take into account.” (emphases added)
So even for those within the scope of the MHA (per MCA Schedule 1A, case E), the MHA may no longer have primacy and DOLS remains an alternative to be taken into account. Given that MHA decision-makers have no control over the outcome of MCA assessments, and that MCA decision-makers have no control over the outcome of MHA assessments, the scope for legal uncertainty remains. Insofar as tribunals are concerned, they may – as his Lordship suggests – use MHA s.72(3) to defer discharge to a future date until (or in the hope that) a DOLS authorisation is obtained. But this is a gamble. The hospital managers can request an authorisation up to 28 days in advance of the DOL, or issue themselves with an urgent authorisation, but no-one is able to guarantee the outcome of the eligibility assessment (see A Primary Care Trust v. LDV and others  EWHC 272 (Fam)). The same gamble arises for AMHPs who have two medical recommendations for MHA detention but consider that the least restrictive way of best achieving the proposed assessment or treatment is via DOLS. What are tribunals and AMHPs to do?
There are clearly limited situations in which the MHA must be used and DOLS cannot be (eg MCA Schedule 1A case A). For case E, rather than giving primacy to the MHA the legislation is attempting to put incapacitated persons on the same footing as those with capacity. So if they could be sectioned and object it must be assumed that treatment cannot be given under the MCA. The more ‘flexible’ approach advanced here by Charles J may well create as many problems and it solves. But the guiding principle – that decision-makers should strive to find the least restrictive way of best achieving the objective – is the key. There are two distinct schools of thought which will no doubt argue over which regime is less restrictive, given the respective rights of the patient that are interfered with and the corresponding safeguards that they are afforded. In the our opinion, it is impossible to say in the abstract, looking at the MHA and DOLS, which is less restrictive and it will very much depend upon the circumstances and proposed care regime of each individual patient.
Understanding the interface between the MHA and DOLS is becoming so complex for lawyers and the judiciary – let alone anyone else – that there must now be a growing concern as to whether the legislation in fact complies with the ECHR. As the Strasbourg Court held in HL v United Kingdom (2005) 40 E.H.R.R. 32:
“114… It is also recalled that, given the importance of personal liberty, the relevant national law must meet the standard of “lawfulness” set by the Convention which requires that all law be sufficiently precise to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action might entail …”
No wonder the judiciary are resorting to the High Court’s inherent jurisdiction to plug the gaps.
We welcome comments upon this case, and that of Dr A discussed above, from mental health practitioners on the ground, because both cases raise difficult questions of principle and procedure.