DN v Northumberland Tyne & Wear NHS Foundation Trust
Summary: The Upper Tribunal considered what the approach should be of a First Tier Tribunal presented with an application for the discharge of a patient into the community where it was anticipated that he would be cared for under the auspices of a DOLS standard authorisation. The Upper Tribunal was required to examine whether there was any reason that such an arrangement could not be looked at as a possibility, in light of the comments made by Charles J in GJ v The Foundation Trust [2010] Fam 70 as to the primacy of the MHA over the MCA.
The Upper Tribunal held that the case did not fall within the category of persons ineligible to be deprived of their liberty under Schedule 1A which had been the subject of Mr Justice Charles' decision, and accepted the approach set out by the Department of Health in a letter to the Tribunal which said the following (which serves as a sufficiently important guide to the DoH's general thinking we think it should be set out in full):
"In general, the possibility that a person's needs for care and treatment could be met by relying on the MCA - with or without an authorisation under the MCA DOLS - relevant to decisions that have to be made under the MHA in the same way as all alternative possibilities.
Decision-makers under the MHA must, inevitably, consider what other options are available when deciding whether it is right for compulsory measures under the MHA to be used, or continue to be used. The use of the MCA (with or without an authorisation under MCA DOLS) may be one of those options.
All such alternative options must be considered on their merits. The fact that someone could be deprived of their liberty and given treatment under the MCA does not automatically mean that it is inappropriate to detain them under the MHA, any more than (say) the possibility that someone with capacity may consent to continuing treatment for their mental disorder automatically makes their continued detention under the MHA improper.
There are, however, specific circumstances in which the fact that someone is, or could be made, subject to compulsory measures under the MHA means that they cannot also be deprived of their liberty under the MCA. Those circumstances are set out in the "eligibility requirement" in paragraph 17 of Schedule A1 to the MCA, the meaning of which is defined by Schedule 1A to the same Act. A person who is ineligible as determined in accordance with Schedule 1A cannot be deprived of their liberty under the MCA and therefore cannot be the subject of any authorisation under the MCA DOLS. Schedule 1A sets out five cases in which a person is ineligible.
Case A is (in summary) where a person is currently detained in hospital under the MHA. That person cannot simultaneously be subject to an authorisation under the MCA depriving them of their liberty either in that hospital or anywhere else.
However, that is not to say that a person cannot (in effect) be discharged from one regime to the other. There is nothing to prevent a prospective application being made for an MCA DOLS authorisation in anticipation of, or the expectation that, the person concerned will be discharged from detention under the MHA. Paragraph 12(3) of Schedule A1 to the MCA says, in effect, that when deciding whether the qualifying requirements for an authorisation are met, it is the circumstances which are expected to apply at the time the authorisation is expected to come into effect which are to be considered.
The main effect of Cases B, C and D is that a person who is subject to compulsory measures under the MHA which fall short of actual detention cannot be deprived of their liberty under the MCA if that would conflict with a requirement imposed on them under the MHA. So, a person who is on leave of absence from detention in hospital under the MHA can, in general, be the subject of an MCA DOLS authorisation - but not if (for example) that authorisation envisages them living in one care home when it is a condition of their leave of absence that they live in a different care home.
Cases B and C also, in effect, prevent people being made the subject of a MCA DOLS authorisation detaining them in a hospital for the purpose of mental health treatment where the same could be achieved by recalling them to hospital from leave of absence, supervised community treatment or conditional discharge under the MHA (as the case may be).
Case E concerns people who are "within the scope" of the MHA, but not so far actually liable to be detained under it. In broad terms (and subject to certain caveats), it means that the MCA cannot be used to deprive someone of their liberty in a hospital for the purposes of mental health treatment if they are objecting to that course of action and they could instead be detained under the MHA.
It is important to note that case E only applies to detention in hospital, and only where the purpose of the proposed deprivation of liberty is treatment for mental disorder within the meaning of the MHA. It is not relevant to deprivation of liberty in other settings (eg care homes) or for other purposes (eg treatment for physical health problems, or for substance dependence by itself separately from treatment for mental disorder with the meaning of the MHA).
The Government's 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.
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."
Comment: This case is of importance because it clarifies that there is no statutory bar under the MCA to, or any other conceptual difficulty with, a currently detained patient moving to a community placement under DOLS. The reasoning in the judgment is somewhat convoluted: the key point, it appears to the authors, is that a person who may be deprived of their liberty in a community placement does not fall within the ineligibility categories in Schedule 1A, so no problem arises about the interplay between the MHA and MCA or whether the patient would be 'within the scope' of the MHA on discharge.
Nothing is said specifically about the timing of the DOLS authorisation in the judgment. In the authors' view, any application to a Tribunal for discharge on the basis of a community placement with a standard authorisation, must of necessity have already obtained the standard authorisation. Otherwise, the Tribunal is being invited to discharge conditional on a decision yet to be taken by the supervisory body whether to grant an authorisation. The potential for disagreement about capacity, best interests, proportionality and the least restrictive option between the DOLS assessors, the supervisory body, the patient and the Tribunal is obvious. The authors note that the letter submitted by the Department of Health referred to a 'prospective' DOLS assessment being conducted, prior to the Tribunal decision.
The authors also note that there may be very real questions in any given case about whether the community placement plus DOLS is actually less restrictive than continuing to be detained in hospital. While that may sound counterintuitive, it is not necessarily the case that being in the community is less restrictive if, for example, less skilled behavioural interventions are available, or if additional measures are required to prevent access to harmful situations (for example in Mr N's case access to alcohol) that would not be so frequently encountered in hospital. There is potential for disagreements to arise about capacity, best interests, proportionality and risk between the DOLS assessors, the patient, the supervisory body, and the Tribunal itself.
