The “best” way of achieving the “least restrictive”: MHA or DOLS?

1. The “best” way of achieving the “least restrictive”: MHA or DOLS? Neil Allen Lecturer and Barrister University of Manchester and Thirty Nine Essex Street Chambers Neil.allen@manchester.ac.uk

2. Principles and Precedents • MCA s.1(6): “Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.” • MHA COP para 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.” • AM v SLAM [2013] UKUT 365: “least restrictive way of best achieving the proposed assessment or treatment”? • Tribunal Practice Direction (Oct 2013): “in the case of an eligible compliant patient who lacks capacity to agree or object to their detention or treatment, whether or not deprivation of liberty under the Mental Capacity Act 2005 (as amended) would be appropriate and less restrictive…”

3. Principles and Precedents • James v Aintree University Hospitals NHS Foundation Trust [2013] UKSC 67: • MCA 2005 is concerned with enabling the best interests decision marker to do for the patient what he could do for himself if of full capacity, but it goes no further. No greater powers than the patient would have if he were of full capacity. • “45 … The purpose of the best interests test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want.”

4. “Least Restrictive”? • Restrictive of what?! • AM v SLAM [2013] UKUT 365: “Although an authorisation under the DOLS will not inevitably be less restrictive: a) the perception of many is that detention under the MHA carries a stigma and this supports the view that generally it will be more restrictive than an authorisation of a deprivation of liberty under DOLS, and b) an authorisation under the DOLS can where appropriate be made under conditions that would render it less restrictive (e.g. in respect of family visits or to the community).” • Why DOLS is less restrictive…. • Why MHA is less restrictive….

5. Hospital Detention AM v SLAM [2013] UKUT 365 “… Parliament has provided statutory regimes which may or do provide alternatives and so choices which fall to be considered by the relevant statutory decision makers under the two schemes.” NEITHER REGIME HAS PRIMACY OVER THE OTHER. If there is a choice, is the MHA or MCA/DOLS the least restrictive way of best achieving the proposed assessment or treatment? Consider: • What is in their best interests? Eg possible DOLS conditions, fluctuating capacity, comparative impact of the independent scrutiny, review and enforcement provisions of MHA and DOLS. • Likelihood of continued compliance and triggers to possible non-compliance and their effect on the regimes’ suitability. • Is the MCA/DOLS regime practically/actually available?