Transcript The Interface: more trouble?

The Interface: more trouble?
Simon Burrows
Kings Chambers
AM v South London & Maudsley NHS Foundation
Trust & SSH [2013] UKUT 365 (AAC) Mr Justice
Charles, CP
• But the MHA “necessity test” means that, in the search for
the best way to achieve the desired purpose (i.e. the
assessment or treatment referred to in ss. 2 and 3 of the
MHA) in the least restrictive way, the FTT (and other
decision makers under the MHA ) have to consider whether
this result should be founded on a detention in hospital and
if so whether that should be pursuant to the MHA , or
whether the assessment or treatment in the proposed
circumstances should be founded on the MCA and any
deprivation of liberty it involves should be authorised
under the DOLS. To do that, the FTT (and such other
decision makers) have to consider whether the MCA and its
DOLS alternative are applicable and available and, if so,
whether and when they should be used”.
• AM was about an incapacitous but compliant
P who needed assessment
• Equally applicable to incapacitous noncompliant P who wanted discharge to less
restrictive option
MHA Code of Practice
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1. STATEMENT OF GUIDING PRINCIPLES
4-010
1.1 This chapter provides a set of guiding principles which should be considered
when making decisions about a course of action under the Act.
Guiding principles
Purpose principle
4-011
1.2 Decisions under the Act must be taken with a view to minimising the
undesirable effects of mental disorder, by maximising the safety and wellbeing
(mental and physical) of patients, promoting their recovery and protecting other
people from harm.
Least restriction principle
4-012
1.3 People taking action without a patient’s consent must attempt to keep to a
minimum the restrictions they impose on the patient’s liberty, having regard to the
purpose for which the restrictions are imposed.
Mental Capacity Act 2005
• Gateway- lack of relevant capacity
• Any decision- property, care, treatment
(including treatment for mental disorder)
• Serious or contentious decisions involving
deprivation of liberty- Court of Protection- ss.
15 and 16
• Schedule A1 (“DOLS”)
Overlap…….
28 Mental Health Act matters
(1) Nothing in this Act authorises anyone–
(a) to give a patient medical treatment for mental disorder, or
(b) to consent to a patient's being given medical treatment for mental disorder,
if, at the time when it is proposed to treat the patient, his treatment is regulated by
Part 4 of the Mental Health Act
[
(1A) Subsection (1) does not apply in relation to any form of treatment to which
section 58A of that Act (electro-convulsive therapy etc) applies if the patient
comes within subsection (7) of that section (informal patient under 18 who cannot
give consent)] 1
[
(1B) Section 5 does not apply to an act to which section 64B of the Mental Health Act
applies (treatment of community patients not recalled to hospital)
(2) “Medical treatment”, “mental disorder” and “patient" have the same meaning as
in that Act.
Ineligibility under DOLS
Sch 1A, Part 1, Para 2
Five “cases”
Case A• where P is subject to “hospital treatment
regime” under MHA and detained in a
Hospital under that regime
• Ineligible for DOL
• See (as a matter of curiosity)
• A NHS Trust v Dr A [2013] EWHC 2442 (COP)
Case B
• P is subject to MHA regime, but not detained
in Hospital. If course of care or treatment
leading to DOL would be inconsistent with
requirement of regime AND consists in whole
or part treatment for mental disorder in a
hospital, then ineligible
Case C
• If P is subject to community treatment regime
(i.e. s 17A or equivalent), and course of care or
treatment would not be in accordance with
that regime and consists in whole or part
treatment for mental disorder in a hospital,
• Ineligible
• (probably includes conditional discharge?)
Case D
• P is subject to a guardianship regime, and the
course of care or treatment is inconsistent
with the regime and P objects to treatment
• Ineligible
Case E
P is (a) within the scope of the MHA but
(b) is not subject to any MHA regime
AND objects to mental health treatment
Ineligible
Case E
J v The Foundation Trust, A PCT & the Secretary
of State for Health
[2010] 3 W.L.R. 840
Mr Justice Charles
Important point in J
• MHA has primacy over MCA
• Consequently, decision makers could not pick
and choose between regimes
• In Case E the question was whether
predominant purpose of treatment was
physical or mental disorder
DN v Northumberland Tyne &
Wear NHS Foundation Trust
[2011] UKUT 327 (AAC)
Appeal against FTT failure to consider
alternative to MHA detention under MCA/DOLS
in the community
• DOH letter
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.
Consequently……
No reason why MCA status be put in place in
anticipation of P becoming discharged from
MHA section.
Consequently, no reason why FTT should not
wait to see whether MCA regime can be put in
place?
C v Blackburn with Darwen BC, A
Care Home & a PCT
[2011] EWHC 3321 (COP)
Guardianship + DOLS
Primacy of MHA over MCA?
Mr Justice Peter Jackson
In my view, there are good reasons why the
provisions of the MHA should prevail where they
apply. It is a self-contained system with inbuilt
checks and balances and it is well understood by
professionals working in the field. It is cheaper
than the Court of Protection
“it is not in my view appropriate for genuinely
contested issues about the place of residence of
a resisting incapacitated person to be
determined either under the guardianship
regime or by means of a standard authorisation
under the DOLS regime. Substantial decisions of
that kind ought properly to be made by the
Court of Protection, using its power to make
welfare decisions under s16 MCA.”
Mr Justice Peter Jackson
Guardianship is a relatively rare status. There
must be a question as to whether it is the proper
vehicle for a decision about Mr C's residence. I
invite the LA to consider its position as a
guardian. If it chooses to renounce its role, or if
the guardianship is discontinued by some other
means, this court can then be asked to make
orders or declarations about Mr C's residence.
So that the outcome of any such application
should not be protracted, I reserve the matter to
myself if available.
Therefore…
MHA has primacy over MCA
CoP cannot make residence order which
conflicts with guardianship
Where there is a genuine dispute over residence
in such a case, guardian should refer to COP
What if it does not?
Role of the FTT
AM v South London & Maudsley NHS Foundation
Trust & SSH [2013] UKUT 365 (AAC)
Mr Justice Charles changes his mind…..?
Can a decision maker pick and choose between
regimes?
Issue in AN
“whether the Appellant should be discharged
from detention under s. 2 because her
assessment in hospital for the purposes
identified in s. 2 MHA should be carried out and
authorised under the MCA and its DOLS”
The role of the tribunal
• Apply s. 72- in particular, the “necessity test”
• If detention not necessary and/or for
assessment to be in hospital, should not be
detained under s. 2
• (same applies, mutatis mutandis, to other
sections?)
Progression
First question:
Does P have the capacity to consent to
admission/continued admission at hospital,
under s. 131 (informal status).
Second question:
Can the hospital rely on the provisions of the
MCA to lawfully assess or treat the relevant
person?
(Also applies to non- s2 patients vis-à-vis
treatment?)
Third question:
How should the existence of a choice between
reliance on the MHA and the MCA and its DOLS
be taken into account?
This leads to a consideration of the least
restriction principle
Or, put another way……
(a) a patient must not be detained under MHA if
the relevant objective (i.e.
assessment/treatment) could be met under
the MCA regime and
(a) the MCA regime would be less restrictive.
The use of MCA/DOLS will not invariably result
in a less restrictive option.
When considering the MCA option the tribunal
“needs to 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”. This involves a consideration of best
interests and the likelihood of compliance on
the part of the patient.
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
[2011] 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).
i)
ii)
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iv)
general propositions in respect of issues that arise concerning the interrelationship between the MHA and the MCA are dangerous
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,
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 [J] (or any other sense) should be case specific.
I agree with the point made by the SSH to Upper Tribunal Judge Jacobs
that my references to the MHA having primacy in J…..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 relevant factors for the relevant decision maker to take into
account
The role of the FTT as “decision maker” in s. 72?
In the context of detention under MHA
“necessity” means “necessity”
Dictionary definition- “indispensible”
perhaps “no alternative” or “essential”
How far does FTT have to go to consider
options?
Limited to “readily available”
Perhaps same approach as when considering
deferred discharge or formal recommendation?
Very close to Court of Protection role, but
without the welfare order making powers?
FTT resources?
Length of hearings?
Role of medical members?
Scope of documentation required?
How far does an Article 5 review have to go to
comply with ECHR?
What about other decision makers?
AMHPs?
Medical practitioners making
recommendations?
Capacity assessments?
Consideration of MCA alternatives?