Mental Capacity Case

Manchester University Hospital NHS Foundation Trust v JS and Manchester City Council

HHJ Burrows (sitting also as a s.9 Judge)


This case concerned ineligibility for detention under the Mental Capacity Act under Schedule 1A MCA, and, in particular, the extent to which the court is bound to accept conclusions of the professionals involved. 
The case related to a 17-year-old referred to the judgment as ‘Jane’ or ‘JS,’ who was represented by her mother, MS, as litigation friend. JS had diagnoses of autistic spectrum disorder, attention deficit hyperactivity disorder, a learning disability and an attachment disorder. She complex mental health needs and was agreed by all parties to be a danger to herself, and vulnerable to harm from others. There was no immediately effective plan for her care in the community. 

In December 2022, JS was admitted a psychiatric inpatient in a specialist hospital for children and adolescents (the judgment records specifically that she had been admitted for the purposes of assessment and treatment of her mental disorders).  She was assessed as having capacity to consent to an admission and was discharged home in January, but was quickly detained under s.136 MHA when she ran away from home and ran into traffic. She was assessed by the CAMHS gatekeeping service, but found not to be suitable for admission. She was again detained under s.136 a few days later after attempting suicide by overdose, followed by detention under s.2 MHA to a general adult acute (non-psychiatric) ward in a hospital to be treated for the physical consequences of the overdose. 

Jane’s s.2 MHA detention expired on 5 February, and while she had been physically fit for discharge for some time, she remained in hospital in the absence of any safe discharge destination. The court described the nature of Jane’s care and treatment in hospital, which plainly amounted to a deprivation of liberty: 

  • 15.    A flavour of Jane’s care and treatment at J6 is given in the statements and notes I read. According to one statement, there were many incidents during the currency of her s. 2 detention where she absconded or attempted to abscond. She tried to self-harm on a number of occasions, including by the use of sharp objects, attempting to swallow batteries, and claiming to have swallowed screws. She tried to lock herself in a toilet in order to carry out these acts of self-harm.
  • 16.    In order to try to manage Jane, the Hospital put in place a “Care Plan of Restrictions” for her. I summarise those restrictions:
  1. Jane is not to leave the ward.
  2. She is to be subject to “1:1 supervision (with a minimum of 2:1 assessed as necessary and appropriate by the ward staff during periods of escalation)”.
  3. She is to be supervised when in the bathroom at all times by her care support worker and the bathroom door must not be locked.
  4. Physical restraint and oral sedative medication may be used (as set out in the plan) if de-escalation techniques have been attempted but are unsuccessful.
  5. Jane’s room is “reviewed” by the Nurse in charge at least twice daily on shift handover “to remove any risky objects that Jane could use to cause herself or others harm”
  6. Jane’s cubicle may be subject to additional searches if necessary and proportionate if there is a risk that she may have retained items she could later use to harm herself.

The records also detailed many ‘incidents’ in which Jane injured herself and others, and had to be restrained to prevent harm. HHJ Burrows noted that: “it was anticipated on the expiry of MHA detention that the MCA would be used for exactly the same care plan, with exactly the same purpose namely to treat Jane’s challenging and self-injurious behaviour, largely by physical containment and the use of restraint both by physical intervention and medication” (paragraph 22) which included a number of psychotropic medications. HHJ Burrows observed that “[i]t seems entirely obvious to me those treating Jane considered her behaviour to be a manifestation of her mental disorder. This pharmacological treatment was intended to combat it” (paragraph 23). 

There was no lawful authorisation for Jane’s detention in hospital after the expiration of the s.2 MHA authorisation. The Trust took the clear view that JS did not need to be in hospital, but did not propose that she should be discharged in the absence of any safe destination. There was no option for her to either move to a Tier 4 CAMHS bed or have a community placement, and the local authority was continuing to work on a package of care to support Jane’s return home (which was facilitated on 27 February, but was unsuccessful and Jane returned to hospital by 2 March, following the contested hearing). The Trust made an application to authorise JS’s deprivation of liberty in hospital under the MCA, having refused to detain her under s.3 Mental Health Act 1983 (though she was subsequently detained under s.2 MHA after her March readmission which followed the contested hearing, she was again found not to be detainable under s.3 MHA).

HHJ Burrows that he had been the one to raise the concern as to whether the Court of Protection had the authority to detain Jane if she ought to be detained under the MHA; he also sat simultaneously in the High Court to cover all avenues. He also authorised Jane’s detention in hospital on an interim basis pending full consideration of the issues in the case. 

HHJ Burrows readily accepted evidence that Jane lacked capacity to make decisions regarding her residence and care. Similarly, in relation to best interests, HHJ Burrows accepted (with more hesitancy) that remaining where she was, despite it not being anything resembling an optimal environment, was the best available option for Jane while a robust care package to facilitate Jane’s return to her mother’s care was developed (it was hoped within a short timeframe after the hearing).  Jane’s remaining in hospital was keeping her safe in the immediate short term, and it would not assist her to return home without a care package, which would very likely result in her return to hospital quickly (which ultimately occurred even though a care package was in place). The court noted the medical evidence that the doctor with responsibility for Jane’s care “was clear that he was not treating what is usually called the ‘core condition’ because such treatment was simply not available, but he was treating the manifestations of that condition, namely the behaviour outlined above in the incidents I have summarised” (paragraph 42). 

The crux of the court’s judgment was in relation to whether Jane was ineligible for detention under Schedule 1A MCA, specifically under ‘Case E’, which applies where ‘P is—
(a)     within the scope of the Mental Health Act, but (b)     not subject to any of the mental health regimes.’ (Paragraph 2 Schedule 1A MCA) The definition of ‘within the scope of the Mental Health Act’ is set out in paragraph 12 of Schedule 1A:

  • (1) P is within the scope of the Mental Health Act if-
  • (a)    an application in respect of P could be made under s.2 or s.3 of the Mental Health Act, and
  • (b)    P could be detained in a hospital in pursuance of such an application, were one made.

After surveying the statutory provisions of both the MCA and MHA, HHJ Burrows proceeded on the basis that Jane could only be detained under s.3 MHA as she had very recently concluded a s.2 detention. In considering whether an application for detention under the MHA ‘could’ be made, HHJ Burrows made clear that “the wording of the MCA places the Court in a similar position to the AMHP when determining whether P ‘could’ be detained” (paragraph 65) as it is ultimately a question for the AMHP to make the application for admission if the medical recommendations are made. HHJ Burrows also observed that [t]o make the decision easier for the Court of Protection, or anyone else who has to decide, it is assumed for the purposes of Schedule 1A Para 1(12)(4) [MCA] that the medical recommendations for admission under s. 3(2) of the MHA have been made” (paragraph 67). Finally, HHJ Burrows reminded himself of the definition of ‘medical treatment’ under s.145(4) MHA:

Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms of manifestations.

HHJ Burrows considered that in this case it was:

69.  […] immediately clear that the care plan for Jane on the ward was for medical treatment in this broad sense. It consisted in care, namely providing her with a safe place with nursing care. The purpose of that care plan, including the use of restraint both physical and chemical was to ensure that Jane did not harm herself, or that she absconded away from the care setting in order to do so. 

HHJ Burrows agreed that the treatment was not optimal, but that: 

71 […] in no meaningful sense could Jane’s behaviours outlined above be described as anything other than manifestations of her mental disorder.  Or put another way, Jane’s mental disorder causes her to abscond from safe environments, such as her home or hospital. It causes her to place herself at great risk of danger. It causes her to injure herself using sharp objects or taking overdoses. She has done this with alarming regularity. Nothing that those responsible for her care have been able to do has prevented her from doing so. However, that is what they were trying to do, and their treatment was aimed at that. 

HHJ Burrows also noted that she was plainly objecting to being a mental health patient.

He went on to consider whether Jane ‘could’ have been detained under s.3 MHA. He considered that the issue was not simply whether the assessing professionals thought she could be detained under s.3, but whether the court, on the basis of the evidence before it, considered that she could. Considering GJ v The Foundation Trust, a PCT & Secretary of State for Health [2009] EWHC 2972 (Fam), HHJ Burrows reminded himself that Charles J had found that the MCA “decision-maker should approach paragraph 12(1)(b) by asking himself whether in his view the criteria set by, or the grounds in, section 2 or section 3 of the 1983 Act are met (and if an application was made under them a hospital would detain P)” (paragraph 80 of GJ).  HHJ Burrows also noted that by the terms of Schedule 1A MCA, “the decision-making process must be predicated on there being no available alternative under the MCA” (paragraph 87).  

HHJ Burrows found that Jane was within the scope of the MHA and found that she was ineligible for detention under the MCA. He summarised the reasons for his findings thus: 

90. Firstly, that she was accommodated at the Hospital as a place of safety because there was nowhere else for her to go and, once the physical damage caused by her overdose was successfully treated, she needed no in patient medical treatment. The answer to that is: of course, she did. She was a danger to herself. She needed to be nursed safely and medicated to address the effects of her mental disorder (viz. to injure herself and abscond away for safety).

91. It was submitted that although Jane suffers from a mental disorder it was not of a nature or degree to make it appropriate for her to receive medical treatment for that disorder in a hospital. This is clearly wrong. The medical treatment she did receive as a detained patient in hospital was necessary to keep her safe and to prevent her from absconding or harming herself. There was no readily available alternative when she was receiving it.

92. It is submitted that the outcome of the MHA Assessments was that inpatient care for Jane’s condition was neither available nor desirable because she could be treated in the community under the MCA. This too is plainly wrong. She could only be treated in the community once a suitable package of care was available for her. Until then she could not safely leave hospital. That was the situation with which I was confronted at the first hearing. At that point hospital was the only option. 

93. This is quite a familiar situation for those who practise mental health law. Patients who have been detained under the MHA (like Jane) can theoretically be discharged into the community with a suitable package of care, but only when that package is actually available. Many weeks or months can be spent putting such packages together (funding, placement, support etc) and in place. During which time patients remain detained. The whole s. 117 process is designed to speed that up so as to ensure detained patients get out and stay out of hospital. Of course, because Jane was never detained under s. 3 of the MHA, s. 117 aftercare was not available to her.

94. The hospital thought that utilising the MHA to detain Jane would be harmful to her mental health, as would her remaining in Hospital. This is an invalid argument which contains two fallacies. First, she was detained by her care plan which I have summarised above. What jurisdictional label is placed on the care plan is immaterial to its restrictive nature, whether that be MHA, MCA, “common law”, the High Court’s inherent jurisdiction is irrelevant to whether she was detained for treatment. That was the care plan’s doing. 

95. Secondly, keeping her in Hospital for a day longer than was necessary was also nothing to do with the regime she was subject to. Good clinical practice and the operation of Article 5 of the European Convention requires a patient to be detained only for so long as is necessary. The MHA does not prolong detention. In fact, as I have already said, proper use of s. 117 should reduce the overall time a patient spends in Hospital because professionals inside and out of Hospital concerned with health and social care should all work together to put together an effective discharge plan speedily.

96. There seems to be a belief, not just in this case but in others in which I have heard recently, that the decision to use the MHA should be viewed in isolation from what is available elsewhere at the time the decision to detain or not detain is taken. Ideally, a 17-year-old vulnerable young person would not be detained in a psychiatric facility, let alone a mixed adult general ward. However, where there is literally no option in which that young person will be safe, or as safe as possible in the circumstances, I cannot see how the MHA decision maker can avoid the decision I have had to make in this judgment. If the patient has to be detained for treatment for their mental disorder, and there is no alternative outside the hospital setting, and no other treatment plan available, then it seems clear to me the patient should not be detained under the MCA but rather under the MHA. 

HHJ Burrows also rejected submissions that he should authorise the detention in the inherent jurisdiction in the alternative, finding that the MCA and MHA provided a legal structure for her detention. 


This judgment grabs the nettle of a notoriously difficult issue under the MCA. In our view, it is also entirely correct.

The question of whether a person is detainable under the Mental Health Act is not an absolute one, but one which turns at least in part on whether the person could receive necessary care for a mental disorder outside of hospital. There are many people who are detained under s.3 Mental Health Act primarily because there are not yet any adequate arrangements for their care in the community: they ‘need’ to remain in hospital because there is simply nowhere else for them to receive appropriate treatment. We would further note that there are many people detained under the MHA who are being treated for symptoms of their disorder by way of medication or mental health nursing, and that ‘treatment’ is necessary for their health and safety. 

There was no argument before the court that at the time of the hearing, Jane would be either safe or appropriately cared for if she left hospital. While the hospital was more appropriately understood as the ‘least worst’ option, it was plain that all other options were quite significantly worse and Jane would be at serious risk of harm if she left. The care plan cannot be properly understood as anything other than one to treat symptoms of a mental disorder, and there was no proposal to change it. While the reasons the treating doctors refused to detain Jane are not entirely known, the court’s logic as to why Jane could have been detained under the MHA is difficult to dispute.  It is also very helpful that HHJ Burrows made clear that it is ultimately for the court to make the decision, rather than for the clinicians.  

This judgment provides a thorough and welcome analysis which will likely be of assistance to other courts struggling with issues of Schedule 1A ineligibility.