1. The Interface: more trouble? Simon Burrows Kings Chambers

2. AM v South London & Maudsley NHS Foundation Trust & SSH [2013] UKUT 365 (AAC) Mr Justice Charles, CP

3. 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”.

4. AM was about an incapacitous but compliant P who needed assessment Equally applicable to incapacitous non- compliant P who wanted discharge to less restrictive option

5. MHA Code of Practice 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.

6. 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”)

7. 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.

8. Ineligibility under DOLS Sch 1A, Part 1, Para 2 Five “cases”

9. 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)

10. 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

11. 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?)

12. 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

13. 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

14. Case E J v The Foundation Trust, A PCT & the Secretary of State for Health [2010] 3 W.L.R. 840 Mr Justice Charles

15. 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

16. 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

17. 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.

18. 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.

19. 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?

20. C v Blackburn with Darwen BC, A Care Home & a PCT [2011] EWHC 3321 (COP) Guardianship + DOLS Primacy of MHA over MCA?

21. 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

22. “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

23. 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.

24. 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

25. AM v South London & Maudsley NHS Foundation Trust & SSH [2013] UKUT 365 (AAC) Mr Justice Charles changes his mind…..?

26. Can a decision maker pick and choose between regimes?

27. 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”

28. 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?)

29. Progression First question: Does P have the capacity to consent to admission/continued admission at hospital, under s. 131 (informal status).

30. 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?)

31. 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

32. 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.

33. 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.

34. 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).

35. i)general propositions in respect of issues that arise concerning the inter- relationship 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 [J] (or any other sense) should be case specific. 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…..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

36. 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”

37. 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?

38. 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?

39. What about other decision makers? AMHPs? Medical practitioners making recommendations? Capacity assessments? Consideration of MCA alternatives?