Interface between MHA and MCA

@mcadorset #mcaconference10 Interface between MHA and MCA • Esther Donald • Joint MCA and DoLS Operational Manager • Borough of Poole and Bournemouth Borough Council

Session Plan • Does the Mental Health Act ‘trump’ the Mental Capacity Act? • AM v South London and Maudsley NHS Foundation Trust (2013) • PJ, MM and AB – CTOs conditional discharge and DoLS • Mental Health Act review

AM v 1. South London and Maudsley NHS Foundation Trust • Case Summary: • Mrs AM (78) was living in her own home with her daughter CM. She had a history of depressive illness; • She was removed from her home under section 135(1), because her daughter was denying access to her; • She was subsequently detained under section 2, which was upheld by the First Tier Tribunal (FTT) (MHA Review Tribunal), which was concerned her daughter would remove her and not co-operate with administration of medication.

AM continued • Because CM as Nearest Relative objected to the use of Section 3 an application to displace her was made and the Section 2 continued pending the decision; • A further appeal to FTT made the case that AM would stay on a voluntary basis and therefore detention was not warranted, that she could be treated under the MCA including, if necessary, DoLS; • All parties agreed that the purpose of her being in hospital was to receive psychiatric treatment;

AM continued • The application to discharge the section failed and was referred to the Upper Tribunal for appeal. • (The Upper Tribunal is there to hear appeals from lower tribunals. It has equivalent status to the High Court and judges sit.)

Article 5 EHCR – Right to liberty Art 5 (1) “No one shall be deprived of their liberty....... save by a procedure prescribed by law Art 5 (4) Right of appeal and speedy review to make sure it is lawful (e) the lawful detentions of persons of unsound mind;”

Article 5 EHCR – Right to liberty • To comply with article 5 of ECHR, to be ‘warranted’ detention must be necessary in the sense that the objectives (assessment and treatment of mental disorder) cannot be achieved by less restrictive means.

AM continued • Justice Charles identified 4 cases of patient: • Case (A) Compliant, capacitated • Case (B) Non-compliant, capacitated • Case (C) Compliant, non-capacitated • Case (D) Non-compliant, non-capacitated

Mr Jones • Diagnosis……… dementia, deteriorating MH • Has capacity to consent to admission and treatment • Agrees to admission and treatment • Informal Admission under S131

Miss Heath • Diagnosis – dementia, deteriorating mental health • Has capacity to consent to admission and treatment • Is objecting • If they meet the criteria: MHA

Mrs McArthur • Diagnosis – dementia, deteriorating mental health • Does not have capacity to consent to admission and treatment • Is objecting • If they meet the criteria: MHA

Mr Fraser • Diagnosis – dementia, deteriorating mental health • Does not have capacity to consent to admission and treatment • Compliant with admission and treatment • ?

MCA and DoLS • The MCA sections 5 & 6 do not authorise deprivation of liberty, because they do not provide a ‘prescribed procedure’ to protect the patient, they merely confer immunity on the decision maker; • The Deprivation of Liberty Safeguards provide an alternative prescribed procedure and decision makers (MHA Assessors, Hospitals and Tribunals) have to consider the alternative regimes available;

Justice Charles identified a series of questions to ask and factors relevant in considering the alternatives: • Is admission to hospital for assessment and/or treatment warranted/necessary? • If yes, does the patient have capacity to consent to admission and treatment? If yes, see cases A and B above. • If No: might the hospital rely on the MCA and DoLS to assess and treat the patient?

Can you rely on MCA / DoLS? • In Case D? • In Case D they cannot, because P is ineligible as per case E of Schedule 1A (‘objecting to being a mental health patient’), • so use the MHA.

So what is objection? • Very low threshold • DoLS Code of Practice: • “If the proposed authorisation relates to deprivation of liberty in a hospital wholly or partly for the purpose of treatment of mental disorder, then the relevant person will not be eligible if: • 􀁳 they object to being admitted to hospital, or to some or all the treatment they will receive there for mental disorder, and • 􀁳 they meet the criteria for an application for admission under section 2 or section 3 of the Mental Health Act 1983”

In many cases, the relevant person will be able to state an objection. However, where the person is unable to communicate, or can only communicate to a limited extent, assessors will need to consider the person’s behaviour, wishes, feelings, views, beliefs and values, both present and past, so far as they can be ascertained. If there is reason to think that a person would object if able to do so, then the person should be assumed to be objecting. Occasionally, it may be that the person’s behaviour initially suggests an objection, but that this objection is in fact not directed at the treatment at all. In that case, the person should not be taken to be objecting.”

Case C • In Case C two further issues must be considered: • Will P comply with all elements of the proposed assessment and treatment? How reliable is that compliance? • If Not sure: we are back to Case D.

Case C • Is it likely that P will be deprived of their liberty by the proposed regime? • If not, you can use the MCA - highly unusual!! • If yes they will be deprived of their liberty, decide between MHA and DoLS.

Choices choices! • There may be grounds to detain a compliant patient – what are they? Prize for anyone who knows which chapter of the MHAct Code covers this!!! [Chapter 13 MHA Code of Practice]

Grounds to detain a compliant patient • Age • Advance decision / deputy • does P have fluctuating capacity? • Might P refuse consent if he/she regains capacity? • Is there a need to use restraint to protect others from harm? • Is there any indication that P would object if able to (DoLS eligibility) • Part 4 MHA – specialist treatment (ECT etc.)

Is the MHA less restrictive than the MCA?

Less restrictive? • Is there more stigma attached to detention under the MHA? • Does the MHA provide better protection of P’s rights? • Conditions can be added to a DoLS authorisation that render the regime less restrictive. • DoLS only authorises detention, not treatment. The MHA provides broad powers to detain and treat, and safeguards around treatment

Less restrictive? • All decisions under MCA / DoLS must be made in P’s Best Interests, there is no such explicit requirement in the MHA. • If someone is on a DoLS the role of the Nearest Relative does not exist, and therefore the right to object or discharge does not apply.

Less restrictive? • Relevant Person’s Representative – route to Court of Protection to appeal arrangements / any aspect of DoL • Long term detained patients have automatic Managers Hearing • Second Opinion Approved Doctor after 3 months for anyone who lacks capacity and is a detained patient.

Conclusions • The issue can become a problem because the two regimes are operated by different assessors. • Not all DoLS Best Interests Assessors are AMHPs and vice versa, although most DoLS Mental Health Assessors are also Mental Health Act assessors. The two sets of assessors need to have a common understanding of the two regimes to ensure all patients’ rights are protected. • AMHPs can undertake eligibility assessment (DoLS)

Conclusions • In doing assessments under each regime, assessors must consider whether P’s circumstances meet the statutory criteria of the regime and also the availability and appropriateness of the alternative regime.

Conclusions • GJ where it all started!!! • Beware of general propositions taken from case law: each case hinges on the individual circumstances of the case. • Assessors must consider the general principles and interpretation used in case law, rather than the specific decisions made by judges.

Application of the MHA and MCA is based on professional judgement, informed by understanding of the law and its interpretation. • Decision makers must be able to demonstrate that they have taken into account all the relevant factors, not that they made the right decision. Protection for decision makers is more concerned with the process than the outcome. • Therefore it is imperative that your reasoning is documented.

More recent case law • Secretary of State for Justice v MM [2918] UKSC 60 • MM was desperate to leave hospital and was willing to ‘consent’ to a very restrictive regime in the community under Conditional Discharge to make this happen. • Supreme Court said neither Secretary of State nor MHRT can impose conditions on the discharge of a restricted patient which would amount to a DoL

3 Principles underpin this: • To deprive someone of liberty is a statutory interference of their Article 5 rights • The MHA conveys no coercive powers over conditionally discharged patients – “a breach is not a criminal offence, and not even an automatic ground for recall to hospital”, therefore, if he can consent to it, he must also be free to withdraw his consent at any time if this was allowed. • If such patients could be ‘detained’ as part of their discharge and / or recalled, this would have been in the MHA provisions.

AB (Inherent jurisdiction: DoL) [2018]EWHC 3103 • AB had capacity to consent to the care, support and accommodation arrangements which were provided as part of his conditional discharge, but following MM case there was an unlawful DoL. • The High Court extended it’s jurisdiction to authorise this for 12 months.

More recent case law • Welsh Ministers v PJ – [2018] UKSC 66 • Supreme Court overturned Court of Appeal judgment that patient’s RC can set conditions on a Community Treatment Order (CTO) that amount to a doll • S118 MHA states quite clearly that “The conditions must not deprive the patient of their liberty” (para 29.31 • A DoLS authorisation would need to be in place to prevent a breach of Article 5

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Interface between MHA and MCA