AM HM 1538 2013
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Charles |
| Judgment Date | 06 August 2013 |
| Neutral Citation | 2013 UKUT 365 AAC |
| Subject Matter | Mental health |
| Respondent | South London & Maudsley NHS Foundation and Secretary of State For Health |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HM 1538 2013 |
| Appellant | AM |
[2014] AACR 13
(AM v South London & Maudsley NHS Foundation Trust and Secretary of State for Health [2013] UKUT 365 (AAC))
Mr Justice Charles CP HM/1538/2013
6 August 2013
Detention under Mental Health Act – whether existence of Mental Capacity Act 2005 relevant to exercise of powers under Mental Health Act
The appellant had a history of mental illness. She lived with her daughter who was her primary carer. The community health team removed the appellant to a hospital by a warrant issued under the Mental Health Act 1983 (MHA) so that she could be assessed under section 2. The First-tier Tribunal (F-tT) refused the appellant’s application for discharge. A further application was made before a second F-tT. At the hearing it was unsuccessfully argued on the appellant’s behalf that she should be discharged as she could stay in hospital on a voluntary basis. The issue before the Upper Tribunal (UT) was the proper approach to be taken by decision-makers when applying the “necessity test” under the MHA including the possible application of the Mental Capacity Act 2005 (MCA) and the Deprivation of Liberty Safeguards (DOLS).
Held, allowing the appeal, that:
- to be compatible with Article 5(1)(e) of the European Convention on Human Rights the relevant sections of the MHA had to be applied on the basis that there was no less restrictive way of achieving the proposed assessment or treatment: see Varbanov v Bulgaria [2000] ECHR 31365/96, Enhorn v Sweden [2005] ECHR 34; (2005) 19 BHR 222 and R (Countryside Alliance) v Attorney General [2007] UKHL 52; [2008] 1 AC 719 (paragraphs 15 to 16)
- in the circumstances defined therein DOLS provided an alternative basis upon which to authorise the deprivation of the liberty of incapacitated persons for their assessment or treatment in hospital and therefore a decision-maker when applying the “necessity test” under the MHA should consider whether DOLS ought to be used in the particular circumstances of each case (paragraphs 28 and 34)
- the approach involved a progression of reasoning. First the decision-maker had to decide whether admission to hospital was appropriate. If it was necessary then three further question would generally arise: (1) whether the relevant person had the capacity to consent to the arrangements in section 131 of the MHA; (2) whether the hospital could rely on the provisions of the MCA lawfully to assess or treat them and (3) how the existence of a choice between the MHA and the MCA and its DOLS was to be exercised (paragraphs 35 to 75)
- the F-tT had erred in law by either not addressing whether the appellant would voluntarily remain in hospital, or not explaining with sufficient clarity what it had decided on this issue and why (paragraph 88).
The case was remitted to the First-tier Tribunal for rehearing by a differently constituted panel.
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Mr Chris Buttler, instructed by Steel & Sharmash, appeared for the appellant.
Mr Parishil Patel, instructed by DAC Beechcroft, Solicitors, appeared for the first respondent.
Mr Ben Hooper, instructed by the Department of Health, appeared for the second respondent.
Decision:
- This appeal is allowed.
- The case is remitted to a differently constituted First-tier Tribunal to consider, applying the approach set out below.
REASONS FOR DECISION
Introduction
- This case gives rise to issues relating to the approach to be taken by the First-tier Tribunal (the F-tT) and other decision-makers under the Mental Health Act 1983 (the MHA) when treatment and authorisation of a deprivation of liberty of the relevant patient might be given under the Mental Capacity Act 2005 (the MCA). It does so in different circumstances to those that existed in both GJ v Foundation Trust [2009] EWHC 2972 (Fam); [2010] Fam 70 and in DN v Northumberland & Wear NHS Foundation Trust [2011] UKUT 327 (AAC); [2012] AACR 19. The circumstances that existed in those two cases also differed in that although in both the subject to the proceedings had mental and physical health problems:
i) the first (GJ v Foundation Trust) concerned assessment and treatment in hospital and the validity of the authorisation given under the Deprivation of Liberty Safeguards (DOLS) introduced into the MCA, of a patient who objected to being in hospital. I concluded that the authorisation was lawful because the patient was not ineligible to be deprived of his liberty under the DOLS because on a “but for” approach his admission and treatment was for his diabetes, and
ii) the second (DN) related to the discharge of DN and whether arrangements that might be put in place under the MCA and DOLS concerning his placement in a Care Home were a relevant consideration and Upper Tribunal Judge Jacobs decided that in the circumstances of that case they could be.
Here, the circumstances do not raise issues relating to (a) treatment for mental and/or physical disorder or problems (as in GJ v Foundation Trust), or (b) discharge from hospital (as in DN). Rather, they relate to whether the appellant should be discharged from detention under section 2 because her assessment in hospital for the purposes identified in section 2 MHA should be carried out and authorised under the MCA and its DOLS.
- All decision-makers who have to address the application of the provisions of the DOLS contained in Schedules A1 and 1A to the MCA are faced with complicated legislative provisions and their difficulties are compounded when they have to consider the relationship between the MHA and the MCA. Regular visitors to the provisions need to remember the daunting task they set for lawyers and non-lawyers who have to apply them. Such regular visitors will be aware that new points of interpretation and application regularly arise and this has caused me to make some comments in a postscript about what I said in GJ v Foundation Trust.
Some background facts
- This case concerns AM who is a 78 year old woman who until late 2012 had for many years been living in her own home with her daughter CM. She has another daughter VM. AM has had contact with mental health services from time to time since 1983, when she was first admitted to hospital with depression. Prior to the events leading to this appeal her last admission to hospital was an informal one in 2002 and no formal diagnosis was made at that time.
- On 12 November 2012, AM was removed from her home by the community mental health team using a warrant issued under section 135(1) MHA so that an assessment of her under section 2 MHA could be undertaken. I understand that CM had refused the mental health team access to the home or other access to AM to enable them to carry out an assessment. On execution of the warrant AM was admitted to hospital under section 2 MHA.
- On 21 November 2012, the F-tT considered an application for the discharge of AM. They ordered that she was not to be discharged and in paragraphs 13 and 14 of their decision (the November 2012 F-tT Decision) said:
“13. We are satisfied that if the order were discharged, [AM] would be taken home by her daughters although she appeared to be quite happy in the hospital environment herself. She would therefore be deprived of the benefit to her health which is likely to follow from the important assessment, which also needs to be done in the interests of her long-term mental health.
14. We are also satisfied that if the order were discharged [AM’s] daughter, [CM], would not co-operate with medication or with the community team. There is a history of non-co-operation both in the past and recently. [AM’s] poor insight is also relevant. Without her carer to cooperate on her behalf, we find that she would be completely unable to do...
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