GJ v The Foundation Trust and Another

JurisdictionEngland & Wales
Judgment Date20 November 2009
Neutral Citation[2009] EWHC 2972 (Fam)
Docket NumberCase No: 1175458T
CourtFamily Division
Date20 November 2009

[2009] EWHC 2972 (Fam)

IN THE COURT OF PROTECTION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Hon Mr Justice Charles

Case No: 1175458T

Between:
GJ
Claimant
and
(1) The Foundation Trust
(2) The Pct
(3) The Secretary of State for Health
Respondents

Simon Burrows (instructed by O'Donnells) for the Claimant

Bridget Dolan (instructed by Ward Hadaway) for the First and Second Respondents

Jonathan Auburn (instructed by The Department of Health Legal Services ) for the Third Respondent

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Hearing date: 2 November 2009

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Approved by the court

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Charles J:

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Introduction

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1. This case is brought under s. 21A of the Mental Capacity Act 2005 (as amended by the Mental Health Act 2007) “the MCA” in respect of a standard authorisation given under Schedule A1 to the MCA which authorises “ the detention of GJ in a hospital - for the purpose of giving him care or treatment - in circumstances that amount to a deprivation of liberty” (see paragraphs 1(2) and 2 of Schedule A1).

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2. The amendments relating to deprivation of liberty introduced into the MCA are complicated and quite lengthy. They need to be read as a whole. They introduce concepts that are defined and it is the definitions of the concepts, rather than the language of the concepts, that is important. They also cross refer to the MHA 1983.

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3. I understand that this is the first time that these amendments have been considered in detail by the Court of Protection. It is for this reason, and although cases are likely to be fact specific that:

(a) I make some general points and have addressed the points of statutory construction that arise generally before turning to the application of the relevant provisions in this case, and

(b) I have set out a summary of my conclusions by reference to that general approach at the end of this judgment.

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Some general background

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4. Section 50 of the Mental Health Act 2007 amended the MCA 2005 to add provisions for the lawful deprivation of liberty of a person with a mental disorder who lacks capacity to consent. Section 50(2) inserts two new sections, 4A and 4B, into the MCA. The effect of these is that deprivation of liberty may only take place under the MCA in one of three situations. These are where:

(a) the deprivation is authorised by an order of the Court of Protection under section 16(2)(a) of the MCA; or

(b) the deprivation is authorised in accordance with the deprivation of liberty procedures (DOLS) set out in Schedule A1; or

(c) the deprivation is carried out because it is necessary in order to give life sustaining treatment, or to carry out a vital act to prevent serious deterioration in the person's condition, while a decision as respects any relevant issue is sought from the court.

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5. Of particular relevance are ss 4A, 4B, 16A, 21A and Schedules A1 and 1A to the MCA. These provisions for authorisation of the deprivation of liberty apply to people who are over 18 (children are dealt with under section 25 of the Children Act 1989 or the Mental Health Act 1983). The person must lack capacity to consent to the arrangements for his care. Receiving care or treatment in circumstances that amount to a deprivation of liberty must be in his best interests and necessary in order to prevent harm to the relevant person.

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6. The underlying purpose of these provisions relating to deprivation of liberty was to address the “ Bournewood Gap” (see R v. Bournewood Community and Mental Health NHS Trust, ex parte L (Secretary of State for Health and others intervening) [1998] 3 AER 289). In describing the Bournewood Gap I have with gratitude adopted a description used in lectures given by Professor Fennell and Clements. It is:

“In Bournewood a mentally incapacitated man (HL) was admitted to hospital and retained there against the wishes of his carers, without the health care professionals using the powers of compulsory detention in the Mental Health Act 1983. HL was 48 and was suffering from severe autism. He lacked capacity to consent or dissent to being in hospital. For most of his adult life he had been an in-patient in a learning disability hospital, before being placed in the care of Mr and Mrs E under an adult fostering scheme. Whilst at the day centre which he attended on one day each week, he became disturbed and agitated, banging his head with his hands. According to Mr and Mrs E, he had one of these ‘tantrums’ about every four days, but the Es could cope with them and had never had to call the police or have him admitted to hospital. On this occasion the Es could not be contacted. A local doctor attended and sedated HL. His care worker arranged for him to be taken to the accident and emergency ward of the local hospital. Although initially calm and relaxed, while at the Accident and Emergency Unit he became increasingly disturbed, was again given sedation and was admitted ‘informally’ to the mental health behavioural unit at the hospital, under the care of the clinical director for learning disabilities, a consultant psychiatrist. Although incapable of consenting to admission, once in hospital he made no attempts to leave. He had no ability to express consent or dissent to treatment (although he could manifest unhappiness as to specific treatment). He was unable to express preference as to residing at one place rather than another. He did not resist admission, nor did he seek to leave. If he had, the doctor would have detained him using the compulsory powers in the Mental Health Act 1983. Because he had not been detained (‘sectioned’) under the 1983 Act, HL had no right to review of his detention by a Mental Health Review Tribunal. Through his next friends (Mr and Mrs E) he sought legal redress, via judicial review of the decision to detain him, habeas corpus and an action for damages for false imprisonment. To obtain that redress it had to be established (1) that HL had been detained or subject to imprisonment, and (2) that the detention was unlawful.

So there were two central questions: (a) in what circumstances was an incapacitated patient detained in law? and (b) when should a patient who lacks capacity be detained using the powers in the Mental Health Act 1983 and when was it permissible to use common law to admit incapacitated patients? The House of Lords held that there was a common law power under the doctrine of necessity to detain and restrain patients who lack capacity and where detention was necessary in their own best interests. Five of the nine judges who considered HL's position at English law considered him to have been detained, and did so on the basis of the control assumed by the doctor over HL's treatment, residence, movement and contact with the outside world, a key point being that HL would have been prevented from leaving had he tried to do so. Despite the existence of an extensive case law on detention under the European Convention on Human Rights, the speeches in the House of Lords do not refer to the Convention. Lord Steyn, however, identified the existence of a lacuna, which has come to be known as ‘the Bournewood Gap’:

“The common law principle of necessity is a useful concept but it contains none of the safeguards of the 1983 Act. It places effective and unqualified control in the hands of the hospital psychiatrists... [N]either habeas corpus nor judicial review are sufficient safeguards against misjudgements and professional lapses in the case of compliant incapacitated patients.”

He also stated that ‘the law would be defective if it failed to provide adequate protective remedies to a vulnerable group of incapacitated mental patients.’

HL's carers applied to the European Court of Human Rights, which held that HL had been deprived of his liberty and that there had been a breach of Article 5(4) in that the use by the doctor of the common law doctrine of necessity, instead of statutory powers to detain, did not meet the requirement in Article 5(1)(e) that such a detention must be carried out in accordance with a procedure prescribed by law. They won ( HL v The United Kingdom (2004) 40 EHRR 761).

In relation to mentally incapacitated adults, the common law doctrine of necessity has largely been superseded in relation to acts of care and treatment by sections 5 and 6 of the MCA. However, it follows from the ECHR's ruling that because sections 5 and 6 of the MCA provide a defence to a battery action, rather than prescribe a procedure, they cannot satisfy the requirements of Article 5(1)(e) in relation to a detention on grounds of unsound mind. For that reason, the Government decided to implement the judgment and bridge ‘ the Bournewood Gap’ by way of amendments introduced to the Mental Capacity Act 2005 to provide for Deprivation of Liberty Safeguards in relation to adults who lack capacity to decide where they should reside.”

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7. The amendments enable what are called standard and urgent authorisations to be granted in respect of persons in a hospital or care home. The role of the Court of Protection in respect of these authorisations is conferred by s. 21A.

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8. More generally, a part of the relevant background to the construction issues that arise are the points that (a) compliance with Art 5(4) ECHR requires that deprivation of liberty is only implemented in accordance with a procedure prescribed by law, (b) before and after the amendments such procedures for the lawful authorisation of a deprivation of liberty are provided by the MHA 1983, when it applies, and (c) after the amendments such procedures, in defined circumstances, are provided by the MCA.

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9. The new provisions in the MCA do not cover taking a person to a care home or a hospital. But they can be given before the relevant person arrives there so that they take effect on arrival (see for example paragraph 52 of Schedule A1 to the MCA).

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Preliminary

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10. At the heart of the issues before me are questions of...

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1 firm's commentaries
  • The Court Of Protection - Recent Cases And Comments On Procedure (Part 1)
    • United Kingdom
    • Mondaq United Kingdom
    • 1 July 2010
    ...was sufficient evidence to establish her best interests construed in the light of all the circumstances. GJ v The Foundation Trust [2009] EWHC 2972 (Fam) the particular question posed by this case was how to determine whether someone was eligible to be deprived of their liberty under the MC......
4 books & journal articles
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    • Wildy Simmonds & Hill A Practitioner's Guide to Mental Health Law Part One. Overview of the Mental Health Act 1983
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    ...(Admin), [2008] 1 MHLR 282 48, 135 Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7 263 GJ v Foundation Trust [2009] EWHC 2972 (Fam) 82, 86, 245 Glass v UK (Application No 61827/00) [2004] ECHR 103 19, 83 GM: Patient Consultation, Re [2000] 1 MHLR 41 42 Guzzardi v Ital......
  • Deprivation of Liberty Safeguards
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    • Wildy Simmonds & Hill A Practitioner's Guide to Mental Health Law Part Seven. Mental Capacity act 2005
    • 29 August 2014
    ...introduced to supplement the existing legal framework under the MHA 1983, not to replace it. In GJ v The Foundation Trust and Others [2009] EWHC 2972 (Fam), Charles J suggested that (at [60]): the underlying purpose of the amendments to the MCA 2005 [was] to fill a gap, namely the ‘ Bournew......
  • Medical Treatment Authorised under Part IV of the Mental Health Act 1983
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    • Wildy Simmonds & Hill A Practitioner's Guide to Mental Health Law Part Three. Detention and treatment under the Mental Health Act 1983
    • 29 August 2014
    ...and is objecting to any treatment for the mental disorder, then the MHA 1983 should be used, not the MCA 2005 ( GJ v Foundation Trust [2009] EWHC 2972 (Fam)). 9.3.2 Use of the Mental Capacity Act 2005 where patients are detained under the Mental Health Act 1983 The MCA 2005 may not be used ......
  • “Why can’t they be in the community?” A policy and practice analysis of transforming care for offenders with intellectual disability
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    • Advances in Mental Health and Intellectual Disabilities No. 9-3, May 2015
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    ...(accessed 24 February 2015).GJ V Foundation Trust (2009), EWHC 2972 (Fam): (2010) M.H.L.R 13), available at: www.mentalhealthlaw.co.uk/GJ_v_The_Foundation_Trust_%282009%29_EWHC_2972_%28Fam%29 (accessed 25 February 2015).Health and Social Care Information Centre (2013), Learning Disabilities......

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