Text:DH summary of GJ v The Foundation Trust [2009] EWHC 2972 (Fam)

1. The judgment was concerned with the interface issues between the MHA and MCA DOLS, in circumstances where a person is, or may need to be, deprived of their liberty in order to be treated in hospital wholly or partly for their mental disorder.

Background

2. GJ was the subject of a Standard Authorisation, and detained in a hospital, against his will, under the authorisation. Whilst there, he was treated for diabetes and for his mental disorder. The treatment for his mental disorder took the form primarily of care and support. He was also prescribed various medications for his mental disorder but was never forced to take them against his will whilst subject to the Standard Authorisation.

3. The question was whether he was ineligible to be dealt with via the Mental Capacity Act Deprivation of Liberty Safeguards (Mental Capacity Act DOLS) on the ground that his circumstances fell more properly within the scope of the Mental Health Act 1983 and that he objected.

4. Schedule 1A of the MCA defines where a person (P) is ineligible to be deprived of his or her liberty under MCA DOLS. Case E is the relevant one in the table in that Schedule for the case of GJ.

5. In Case E, there are two tests that must be satisfied before a person is ineligible:

(a) P must be within the scope of the Mental Health Act but not subject to any of the mental health regimes, and

(b) the conditions in paragraph 5 of the Schedule must be met.

Both tests must be satisfied.

Outcome

Test (a): “within the scope of the Mental Health Act”

6. The first test is that P is within the scope of the Mental Health Act but not subject to any of the mental health regimes,

Relationship between Mental Health Act and Mental Capacity Act

7. The judgment makes the important point in paragraph 59 that “it is not lawful for the medical practitioners referred to in [the Mental Health Act], decision makers under the Mental Capacity Act , treating doctors, social workers or anyone else to proceed on the basis that they can pick and choose between the two statutory regimes as they think fit having regard to general considerations (e.g. the preservation or promotion of a therapeutic relationship with P) that they consider render one regime preferable to the other.”

8. In decisions about whether, for the purposes of Case E, P is within the scope of the Mental Health Act, the Mental Health Act “is to have primacy when it applies” (paragraph 45).

9. This reinforces the Government’s intentions that upon the introduction of the MCA DOLS there would be no impact on the existing criteria for detention under the Mental Health Act. As the judgment points out, the purpose of the new safeguards was to fill the lacuna in existing law identified in HL v The UK (2004) 40 EHRR 761 and known as the “Bournewood gap” by amending the Mental Capacity Act.

“An application could be made”

10. In considering whether, for the purpose of Case E, the patient is within scope of the Mental Health Act , the decision-maker must decide whether an application could” be made in respect of the patient under section 2 or 3 of the Mental Health Act. The judgment states at paragraphs 69 to 80 that this means that decision makers should ask themselves “whether in [their] view the criteria set by, or the grounds in, s.2 or s.3 Mental Health Act 1983 are met (and if an application was made under them a hospital would detain P).”

11. In doing so, paragraph 58 explains that “relevant decision makers … should approach the questions they have to answer relating to the application of the Mental Health Act 1983 on the basis of an assumption that an alternative solution is not available under the Mental Capacity Act .”

Test (b) - paragraph 5 of Schedule 1A

11. The fact that P is within the scope of the Mental Health Act does not, by itself, mean, that P is ineligible to be dealt with via the Deprivation of Liberty Safeguards. The second test is set out in paragraph 5 of Schedule 1A.

Authorisation to be a mental health patient

12. The first condition of this test is that the relevant instrument (the standard authorisation in the case of GJ) authorises P to be a mental health patient i.e. a person accommodated in a hospital for the purpose of being given medical treatment for mental disorder. In deciding the meaning of this, Mr Justice Charles adopts a "but for" test (see para 87). The decision maker should look at:

(i) the treatment P should have for his physical disorders unconnected to his mental disorders (i.e. his package of physical treatment), and

(ii) the treatment P should have for his mental disorders (including physical disorders connected to, or likely to directly affect, his mental disorder).

13. The decision maker must then ask whether, but for the package of physical treatment, P should be detained in hospital. If the answer is no, and the need for the physical treatment is the only effective reason for detention, he does not meet the para 5(3) test. In effect, the issue is whether P would be detained in hospital for the treatment for his mental disorders if it were not for the need for treatment of his physical disorders.

Objection by P

14. The first and second condition in paragraph 5 (as the judgment provides at paragraph 81) are linked in that the objection required by the second condition is to “being a mental health patient or to some or all of the treatment for a mental disorder”. The focus is on what is proposed, and thus what is authorised by the authorisation. What matters is whether P will or does object to what is proposed. If he does not object to what is proposed (like HL in Bournewood) he can be (or is eligible to be) deprived of liberty by the Mental Capacity Act . GJ did object, so he met the second condition, but he did not meet the first.

Deprivation of Liberty Safeguards Code of Practice

15. The judgment supports the guidance given in the Deprivation of Liberty Safeguards Code of Practice in relation to the eligibility requirement. Paragraph 4.45 of the Code states:

“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 (unless an attorney or deputy, acting within their powers, had consented to the things to which the person is objecting).”