Interface between MHA and MCA

This page very briefly introduces the Mental Capacity Act 2005 (MCA), and discusses its application firstly to medical treatment, then to deprivation of liberty. Even if a tribunal representative does not carry out Court of Protection work, a familiarity with the Mental Capacity Act 2005 is essential.

The Mental Capacity Act 2005 generally

The Act came into force on 1/10/07, and sets out a comprehensive decision-making process to assist when dealing with someone who cannot decide a matter for himself. It can apply to any area of life. The person for whom a decision is being made is referred to as ‘P’.

Section 1 sets out ‘the principles’ of the Act: (1) The following principles apply for the purposes of this Act.

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(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.

Section 2 sets out, among other things, that ‘For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’ This would include, for instance, being in a vegetative state or temporarily intoxicated.

Section 3 explains, among other things, that a person is unable to make a decision for himself if he is unable:

(a) to understand the information relevant to the decision,

(b) to retain that information,

(c) to use or weigh that information as part of the process of making the decision, or

(d) to communicate his decision (whether by talking, using sign language or any other means)

There are three elements to the test: (a) being unable to make the decision; (b) the existence of an impairment etc; and (c) the inability being because of the impairment etc (PC v City of York Council [2013] EWCA Civ 478^M).

Section 4 sets out a checklist of considerations when determining what is in a person’s best interests, including consulting those involved in the person’s welfare.

The test of capacity is decision-specific: someone could have capacity in relation to one decision but not in relation to another. So the relevant decision and the relevant information need to be identified.

Sections 5 and 6 MCA set out the ability take steps in relation to the care and treatment of P, in specified circumstances, including restraint so long as it does not amount to a deprivation of liberty. Note that these sections do not confer on police officers any authority to remove people to places of safety; s135 and s136 MHA provide the exclusive mechanism for this (R (Sessay) v South London and Maudsley NHS Foundation Trust [2011] EWHC 2617 (QB)^M).

Medical treatment

Where a patient is subject to the MHA and the Part IV compulsory treatment provisions apply, medical treatment for mental disorder can generally be imposed regardless of whether the patient has capacity to refuse.

However, in limited circumstances where consent (and therefore capacity) is relevant, there is therefore an overlap with the MCA. These circumstances include the administration of treatment to CTO patients, and the administration of ECT or psychosurgery to any patient.

In those situations where capacity to consent is relevant, the decision maker must take into account whether the patient has capacity to refuse treatment, and if not then whether:

• The patient has made an advance decision to refuse treatment;
• There is a donee of a health and welfare Lasting Power of Attorney;
• There is health and welfare deputy appointed by the Court of Protection.

The MHA does not usually apply to either informal patients or to treatments for physical disorder, and in these cases the MCA may apply (just as it would do to any member of the population).

In Nottinghamshire Healthcare NHS Trust v RC [2014] EWHC 1317 (COP)^M the court held that it was lawful not to use the s63 MHA power compulsorily to treat a self-harming Jehovah’s Witness who had made a valid and applicable advance decision to refuse blood products (even though strictly the advance decision has no effect on the existence of the s63 power).

Deprivation of liberty

Bournewood gap, DOLS and LPS

In HL v UK 45508/99 [2004] ECHR 471^M a patient – who lacked the capacity to decide where to reside – was kept as a patient in Bournewood Hospital under the common law doctrine of necessity. He was not detained under the MHA but his carers were denied access and prevented from removing him. The ECtHR held that the regime breached the Article 5(1) and (4) because of the lack of procedural safeguards and lack of access to a court.

In order to bridge this ‘Bournewood gap’ in the law, the Deprivation of Liberty Safeguards (DOLS) were inserted by the Mental Health Act 2007 into the Mental Capacity Act 2005 as schedules A1 and 1A, with effect from 1/4/09.

‘Standard authorisations’ (under schedule A1 part 4, lasting up to 12 months) and ‘urgent authorisations’ (under part 5, lasting up to 7 days) may be granted.

These are used to authorise a ‘deprivation of liberty’ as defined in Article 5 ECHR. The first question is whether there is or is likely to be a deprivation of liberty.

The Supreme Court has held that the ‘acid test’ for deprivation of liberty is whether the person is under continuous supervision and control and is not free to leave, and that the following are not relevant: (a) the person’s compliance or lack of objection; (b) the relative normality of the placement (whatever the comparison made); and (c) the reason or purpose behind a particular placement (Cheshire West and Chester Council v P [2014] UKSC 19^M, [2014] MHLO 16). This is a wider definition than previous domestic interpretations.

For an authorisation to be granted, six requirements must be fulfilled:

• Age requirement
• Mental health requirement
• Mental capacity requirement
• Best interests requirement
• Eligibility requirement
• No refusals requirement

This process requires at least two assessors: a mental health assessor (usually a doctor) and a ‘best interests assessor’ (usually a social worker or AMHP). The assessments go to the DOLS team at the local authority. The Act requires an authorisation to be granted if the assessments are positive, but case law requires the assessments to be scrutinised and rejected if appropriate (Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 1377 (COP)^M).

The DOLS apply to hospitals or care homes only (sched A1 para 1(2)); unless the MHA can be used, an application to the Court of Protection would need to be made to cover deprivations of liberty elsewhere.

There are two main overlaps between the MHA and the DOLS scheme under the MCA:

1. Under the ‘mental health requirement’ P must suffer from a mental disorder within the meaning of the MHA, ignoring the learning disability exclusions (sched A1 para 14).
2. Under the ‘eligibility requirement’ there are several cases (called “Case A” to “Case E”) where P cannot be made subject to the DOLS or an equivalent court order (sched 1A). These are essentially cases where the MHA takes priority, which are summarised (without every minute detail) below:

a. If a patient is already detained in hospital under s3 (and most other MHA sections) he cannot be detained under DOLS (this is Case A).

b. A patient on s17 leave, conditional discharge, CTO or guardianship can also be detained under DOLS if that does not conflict with the MHA provision (cases B to D).

c. A patient on s17 leave, conditional discharge or CTO should be recalled rather than detained under DOLS (cases B and C).

d. A patient under guardianship, or a person who not detained but meets the s2/3 criteria, who objects to psychiatric hospital admission, should be detained under the MHA if possible rather than DOLS (case E).

One interesting case is An NHS Trust v Dr A [2013] EWHC 2442 (COP)^M where the patient was caught between two stools. He was detained under the MHA but certain treatment which he required could not be given under the MHA. The treatment could not be given under the MCA either because it would involve deprivation of liberty and the pre-existing MHA detention meant he was ineligible for DOLS detention. The judge’s solution was to use the inherent jurisdiction of the High Court to authorise treatment and deprivation of liberty.

The Mental Capacity (Amendment) Act 2019 will replace the Deprivation of Liberty Safeguards (DOLS) scheme with ‘Liberty Protection Safeguards’ (LPS). The target date for implementation (at the time of writing) is 1 April 2022 and this page will be amended when the LPS scheme is closer to implementation.

Discharge to deprivation of liberty

In AM v SLAM NHS Foundation Trust [2013] UKUT 365 (AAC)^M, [2013] MHLO 80 it was argued at the tribunal that AM should be discharged from s2 in order to remain in hospital informally under s131 MHA 1983 and that, as she lacked capacity, assessment/treatment could be carried out under s5 MCA 2005 instead (and under DOLS if the circumstances required it). The Upper Tribunal decided that a tribunal in these circumstances should (a) decide whether the patient has capacity to consent, (b) decide whether DOLS is an alternative, and (c) in considering the MHA ‘necessity’ test identify the regime which is the least restrictive way of best achieving the proposed aim. Nobody knows what the third point means in practice.

Conditions of discharge

The implementation of some conditions of discharge (on a CTO or conditional discharge) could potentially amount to a deprivation of liberty, for example a condition that the patient cannot leave the accommodation without an escort.

The Supreme Court considered this issue in Welsh Ministers v PJ [2018] UKSC 66^M and SSJ v MM [2018] UKSC 60^M:

• There is no power to impose conditions in a CTO which have the effect of depriving a patient of his liberty (PJ).
• The MHA 1983 does not permit either the First-tier Tribunal or the Secretary of State to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient (MM).

Subsequently, in Re AB (Inherent Jurisdiction: Deprivation of Liberty) [2018] EWHC 3103 (Fam)^M, the High Court extended its inherent jurisdiction to regularise the position of a capacitous detained mental health patient subject to restrictions as part of his conditional discharge which satisfied the objective elements of a deprivation of liberty.

The Upper Tribunal in MC v Cygnet Behavioural Health Ltd [2020] UKUT 230 (AAC)^M reiterated that although, following MM, the First-tier Tribunal has no power to impose conditions which would amount to a deprivation of liberty, it does have the power to coordinate its decision with the provision of an authorisation under the MCA, either by “the different hats approach” (the same judge sitting in the COP and the FTT) or “the ducks in a row approach” (adjournment or deferred conditional discharge).

The Court of Protection authorised conditionally-discharged patients’ deprivation of liberty in Birmingham City Council v SR [2019] EWCOP 28^M, and a CTO patient’s deprivation of liberty in Sunderland City Council v AS [2020] EWCOP 13^M.

The MOJ have published a policy on the matter (HM Prison and Probation Service, 'Mental Health Casework Section: Guidance: Discharge conditions that amount to deprivation of liberty' (January 2019)). The aim of this this operational policy is to ensure that, where appropriate, restricted patients can continue their rehabilitation in a community-based setting following the Supreme Court's decision in MM.

• For patients who lack capacity to consent to deprivation of liberty and the risk is to themselves, the solution is to allow conditional discharge with deprivation of liberty authorised under the Mental Capacity Act 2005.
• For patients who lack capacity and the risk is to others, and also for patients who have capacity, the solution, if further treatment and rehabilitation could be given in a community setting, is to consider long-term s17 escorted leave (use of the inherent jurisdiction is not considered to be the correct approach). The leave of absence would be for an initial period of up to 12 months.
• For patients already on conditional discharge, the following options will be considered: (a) variation of conditions; (b) recall, with or without instantaneous grant of escorted leave to the current placement; (c) absolute discharge; (d) referral to tribunal.
• The policy mentions reassessing patients who present risks to themselves in order to see if they lack capacity after all, which may an MCA authorisation possible.

In response to a FOIA request (Ministry of Justice, ‘FOIA response 181221028: DOL conditions’ (23/1/19)) the MOJ have stated that (paraphrased):

1. There are 2712 conditionally-discharged patients.
2. A database search for the keywords “escorted” and “accompanied” identified 39 cases where the patient has a condition not to go into the community unless escorted or accompanied by staff.
3. A database search for the keyword “permission” did not identify any cases where the patient has a condition not to leave without permission.
4. It cannot be known for certain that these conditions amount to confinement for Article 5 purposes until each case is examined in discussion with the RC.
5. No information can be provided about capacity to abide by the conditions as this information is not held (information about capacity held within RCs' reports is not considered to be sufficiently recent).
6. There may be more than these 39 cases because: (a) the wording of conditions varies considerably; and (b) it is likely that in some cases the care plan, rather than a condition, includes arrangements that amount to a deprivation of liberty (RCs and others have been asked to contact the MOJ for advice in such cases).

The Court of Protection has stated, in obiter dicta, that the division in the MOJ's post-MM guidance (MCA DOL for incapacitous patients whose risk is to themselves, but MHA s17 leave for incapacitous patients whose risk is to others and for all capacitous patients) did not withstand scrutiny as it is in patients’ best interests to be kept “out of mischief” and therefore out of psychiatric hospital (Birmingham City Council v SR [2019] EWCOP 28^M).

The latest in the saga is Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust v EG [2021] EWHC 2990 (Fam)^M.

• The Supreme Court decision in MM meant that the patient could no longer remain conditionally discharged because he was being deprived of his liberty within the meaning of Article 5, so he was made subject to a "technical recall" (under the 2019 policy above) and remained in the community on s17 leave under the same conditions.
• The MHT then conditionally discharged him again, having correctly applied other domestic case law, because he was receiving no treatment in hospital so could not remain on s17 leave.
• The SSJ’s position was that he would recall the patient to hospital if DOL in the community could not be authorised somehow.
• The court held that this outcome would violate the patient's Article 5(1) rights because being in hospital, even as an out-patient, was counter-therapeutic. In order to avoid this violation, s72 should be read and given effect under s3 Human Rights Act 1998 so that “suffering from mental disorder ... which makes it appropriate for him to be liable to be detained in a hospital for medical treatment” includes liability to be “detained for treatment”, even where that treatment is being provided in the community, so long as it could lawfully be provided in hospital.
• Finally, the judge remarked, obiter, that the inherent jurisdiction does not extend to depriving a person with capacity of his liberty, so could not have been used in this case.

Guardianship

Government policy is that: ‘The power to require patients to reside in a particular place may not be used to require them to live in a situation in which they are deprived of liberty.’ (MHA Code of Practice, para 30.31).

In NM v Kent County Council [2015] UKUT 125 (AAC)^M, [2015] MHLO 34 the patient was subject to guardianship and DOLS simultaneously, and argued for discharge from guardianship. The Upper Tribunal said that an ideal set of reasons in these circumstances would identify the relevant legal differences between guardianship and DOLS and include findings of fact sufficient to show their significance to the legal criteria set out in s72(4).

The Upper Tribunal again considered guardianship and deprivation of liberty in KD v A Borough Council [2015] UKUT 251 (AAC)^M, [2015] MHLO 42, and the lengthy judgment included a checklist of questions for tribunals to consider when it is argued that the MCA is an alternative to guardianship. These questions related to: (a) whether on discharge of guardianship the proposed alternative is lawful or is likely to be made lawful (e.g. under DOLS or a COP order); (b) identifying the relevant legal differences between regimes and making findings of fact to apply those differences to the rival alternatives and the discharge criteria; (c) considering whether the parties had provided sufficient evidence and argument; (d) identification of the relevant legal issues; and (e) considering whether to discharge immediately or adjourn for evidence to demonstrate the existence of a practically available alternative.

In the subsequent case of GW v Gloucestershire County Council [2016] UKUT 499 (AAC) the Upper Tribunal stated that ‘every case is different and what matters is the substance of the tribunal’s reasoning rather than whether a tribunal’s reasons follow a particular format’ - and therefore the tribunal’s failure to use the KD checklist did not render its decision unlawful.

Appeals

There are two routes of appeal, the second being the usual route:

1. The supervisory body may be asked to review the authorisation.
2. An application may be made to the Court of Protection under s21A. Others can make an application, but applications by P or the ‘relevant person’s representative’ do not require the court’s permission and are eligible for non-means-tested Legal Aid.

There are some differences with the MHA regime, including the following:

• There is no right of application to the Mental Health Tribunal (only the Court of Protection).
• There is no provision for automatic references.
• P is usually represented by a barrister, who is instructed by a solicitor, who is either an Accredited Legal Representative (akin to a mental health panel member) or instructed by P’s litigation friend (usually the Official Solicitor).
• The Official Solicitor has been known to withdraw appeals made by P on the basis that they lack merit (see TA v AA [2013] EWCA Civ 1661^M).

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• Changes made by MHA 2007
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What links here:

• R (Sessay) v South London and Maudsley NHS Foundation Trust [2011] EWHC 2617 (QB)
• PC v City of York Council [2013] EWCA Civ 478
• GW v Gloucestershire County Council [2016] UKUT 499 (AAC)
• SSJ v MM [2018] UKSC 60
• Welsh Ministers v PJ [2018] UKSC 66
• Re AB (Inherent Jurisdiction: Deprivation of Liberty) [2018] EWHC 3103 (Fam)
• Sunderland City Council v AS [2020] EWCOP 13
• MC v Cygnet Behavioural Health Ltd [2020] UKUT 230 (AAC)
• Birmingham City Council v SR [2019] EWCOP 28
• Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust v EG [2021] EWHC 2990 (Fam)