Judge: Hayden J.
Citation:  EWCOP 2
Summary: ML was 25 years of age with severe learning disability, developmental disorder, autism, epilepsy and diabetes. Save for one hospital admission, he had lived and been cared for in the family home for all of his life. He attended the National Autistic Society Day Centre. The Applicants sought declarations that it was in his best interests to reside and undergo treatment at Bestwood Hospital until he could be discharged to a suitable assisted living package in the community. The Official Solicitor supported the declarations; his parents opposed.
Mr Justice Hayden ultimately concluded that it was in ML’s best interests to move to the independent hospital. However, there was an eligibility issue. All accepted that autism amounted to a mental disorder within the meaning of the MHA. And all accepted that ML would be deprived of liberty. Three options were therefore identified:
The Court agreed with the Official Solicitor that the MHA was the only framework in which ML could properly be detained in the hospital as he was ineligible for a Court of Protection order under MCA s.16A. However, this left a number of uncertainties. The necessary treatment was envisaged to last between 18 and 24 months, making an application under MHA s.3 both apposite and honest. As ML’s nearest relative his mother, who was resistant to what was proposed, could object to the s.3 admission and could apply to discharge him from detention which, the Court believed, would have catastrophic consequences for his welfare. His Lordship noted:
“75. In my judgment, it can make no difference at all to ML whether his detention is authorised under the MCA, the MHA or the inherent jurisdiction, each contain rigorous safeguards to review his detention or in the case of the inherent jurisdiction can easily be adapted to do so.
76. Having considered the case law and the statutory provision it is clear that the magnetic north when contemplating the deprivation of liberty of those who fall within Case E is and is likely to remain the Mental Health Act.”
After referring to the decisions in J v The Foundation Trust  Fam 70, DN v Northumberland and Wear NHS Foundation Trust  UKUT 327, and AM v South London and Maudsley NHS Trust  UKUT 365 (AAC), his Lordship observed:
“79. I am not persuaded by the suggestion, implicit in the DOH letter, that detention under M.C.A for the incapacitous is in someway discriminatory (if in equivalent circumstances the capacitous would be detained under the M.H.A) given that both regimes afford equally rigorous structures and either one might potentially be suitable on the facts. Nor can I easily contemplate the factual situation that would likely test the hypothesis.
80. I am however quite sure that there is a pressing need for clarity and predictability at the interface of these two complex regimes, Charles J’s interpretation assists in that. Most importantly however he makes the point that the rationale of the legislation drives one to the M.H.A where the M.H.A 1983 is being considered by those who could make an application, predicated on the relevant recommendations under S2 or S3. They like the decision maker under the M.C.A should assume that the treatment referred to in S3 (2) cannot be provided under the M.C.A.”
Given that the MHA was the proper vehicle, his Lordship took an unusual course. Any application to displace the nearest relative would be reserved to him and the judgment was to be released to the President of the First Tier Tribunal with an invitation to him to allocate a judge of the First Tier to hear any applications to ensure judicial continuity.
Comment: These proceedings illustrate that the MHA has primacy when it applies. Thus, when a person could be detained under the MHA and is an objecting mental health patient, the MHA is the applicable regime. Having heard evidence and the submissions in detail, the Court was clearly concerned about the key decisions being taken by others under the MHA. Registered medical practitioners would need to determine whether the criteria for detention under s.3 MHA were in fact met. An approved mental health professional would have to consider whether such an application ought to be made. The nearest relative would be able to object or apply to discharge, subject to displacement proceedings. And clearly reserving the matter to his Lordship signals the likely futility of exercising such an objection or right to discharge.
It is suggested, however, that recognising the applicability of the MHA was the right decision in this case. The Court of Protection is limited to doing for the patient what he could do for himself if of full capacity, and can go no further. And the powers and safeguards of the MHA have been carefully calibrated, based on over two hundred years of statutory experience, which must not be subverted save by the will of Parliament.
Finally, at the end of the judgment, his Lordship noted by way of a plea: “Those who practice within the Court of Protection must understand that it is part of the responsibility of the lawyers to ensure that there are realistic time estimates given to the court. The instinct to underestimate the timescale of a case in order that it might be heard more expeditiously is misconceived as this case certainly has proved.”