View source for GJ v The Foundation Trust (2009) EWHC 2972 (Fam)

''(1) As between the MHA 1983 and the MCA 2005 Deprivation of Liberty Safeguards, the MHA has primacy: professionals cannot pick and choose as they think fit. (2) In deciding whether P is within the scope of the MHA, the eligibility assessor must ask whether, in his '''own''' opinion, P could be detained under the MHA. (3) With respect to objections, what matters is whether P objects generally to what is proposed. (4) The correct overall approach for the eligibility assessor is to (a) look at the reality of the situation, rather than the words of the authorisation, (b) separate the mental treatment from the purely physical treatment, and (c) apply a '''"but for" test''', i.e. whether, but for the physical treatment, P should be detained (and whether the only effective reason for detention is physical treatment); if "no" (and "yes", respectively) then P isn't ineligible for DOLS. (5) On the facts, but for his diabetes, P would not have been detainable, so he was not ineligible. It is worth reading the full summary page and the judgment.''

==Background==
The question in this case was whether P was "ineligible to be deprived of liberty" under the MCA 2005, which required a consideration of the interface between the MCA 2005 and the MHA 1983. The principle of ineligibility applies equally to orders of the Court of Protection as it does to DOLS authorisations, and the term "relevant instrument" below means either. This case applies only to deprivation of liberty in hospital. In this summary "detention" is used as shorthand for both "deprivation of liberty" under the MCA/Article 5 and "detention" under the MHA, as on the facts there was no distinction.

Schedule 1A MCA 2005 deals with ineligibility for DOLS. Cases A-D apply to those already subject to various provisions of the MHA 1983, and give primacy to the MHA. The claimant was not subject to the MHA 1983 so Case E potentially applied. Case E provides that P is ineligible for DOLS if both:

:1. ''The "Status test".'' P is (a) within the scope of the MHA (i.e. an application "could be made" under s2 or s3 MHA and a hospital would detain on that basis) but (b) not subject to any of the mental health regimes.

:2. ''The "Paragraph 5 test".'' (a) The relevant instrument authorises P to be a mental health patient (i.e. in hospital for medical treatment for mental disorder), and (b) P objects to being a MH patient or to any of the MH treatment.

==Decision==

:(1) The MHA has primacy, i.e. the decision makers should approach the MHA on the basis that no alternative solution is available under the MCA. Professionals cannot pick and choose between the two regimes as they think fit having regard to general considerations (e.g. preservation of therapeutic relationships). 

:(2) In the status test, "could" involves a subjective "what the decision maker thinks" test, i.e. the eligibility assessor should ask himself whether '''in his own opinion''' the s2/3 MHA criteria are met etc. It is NOT (a) a "possibility" test (i.e. whether a doctor could recommend s2/3), or (b) an "effective certainty" test (i.e. whether no reasonable doctor could fail to recommend s2/3).

:(3) With respect to the objection test, what matters is whether P will or does object to what is proposed (without taking any fine distinctions between potential reasons for objecting to different types of treatment or to simply being in hospital).

:(4) The correct overall approach for the eligibility assessor is to:

::(a) Look at the reality of the situation, rather than the words of the authorisation.

::(b) Separate out the treatment for mental disorder from the physical treatment. Mental treatment can include treatment for physical disorder only if connected to mental disorder and/or likely to directly affect mental disorder. 

::(c) '''Apply a "but for" test.''' If, but for the package of physical treatment, P would not need to be detained, and so the only effective reason for detention is the physical treatment, then in reality the SA doesn't "authorise P to be a mental health patient" at all, and he is therefore not ineligible for DOLS on that ground. This "but for" test incorporates the status test as if the decision-maker decides that P could be subject to the MHA, then the reality would be that P was to be a "mental health patient" and P would be ineligible for DOLS.

:(5) On the facts: (a) but for his diabetes, P would not have been detained; he was not within the scope of the MHA; the reality was that GJ was to be detained for treatment for his physical disorder; he was therefore not ineligible for DOLS; (b) even if he had been ineligible on that ground, he objected to being a mental health patient.

==Notes==

#The preliminary "separation between mental/physical treatment" part of the "but for" test breaks with treatment for a learning disability which is not associated with abnormally aggressive or seriously irresponsible conduct as this is neither treatment for mental disorder (the s1 MHA definition applies) nor physical treatment. (?) The "status test" and "paragraph 5" test, if applied in their normal way, do work.
#What if eligibility assessor thinks P is within the scope of the MHA but subsequently P is not detained under the MHA, e.g. (a) appropriate treatment is not available at any hospital, or (b) the required recommendations and/or application are not made, or (c) the hospital refuses to detain?
#Obiter comments in the judgment say that standard authorisations cannot cover transportation to hospitals or care homes if that transportation itself amounts to a deprivation of liberty. In [[DCC v KH (2009) COP 11729380]] it was decided that SAs can authorise transportation back to accommodation even if that transportation amounts to DOL (and obiter that the same principle should be applied to initial transportation to the accommodation).
#Aftercare under s117 (uncharged) applies to detention under s3 but not to deprivation of liberty under DOLS. In a case where s3 should have been used instead of DOLS, how does that affect aftercare payments already made?
#It has been said that the s3(2)(c) "and [treatment] cannot be provided unless he is detained under this section" admission criterion can rarely be satisfied if DOLS is available as an alternative. However: (1) the EA in considering whether P is within the scope of the MHA must assume this criterion to be met (para 12 sch 1A MCA); (2) if P is (otherwise) within the scope of the MHA (and objects to being a mental health patient) then he is ineligible for DOLS; (3) when the MHA criteria are then genuinely considered as part of the MHA assessment process, DOLS won't be available and s3(2)(c) will genuinely be satisfied. (?)

==Summary from Court of Protection 2009 Report==
This was described by the judge as a “borderline case” (para. 126). The facts appear from paragraph 104
onwards. GJ is a man aged 65. He has a diagnosis of vascular dementia, Korsakoff’s syndrome, and amnesic
disease due to alcohol. He also suffers from diabetes and is prone to hypoglycaemic attacks. A standard
authorisation for DOLS was made on 13 August 2009, and renewed on 12 September 2009. In the meantime
an application had been made to the Court of Protection. The judge held that GJ could not be detained under
the DOLS authorisation for the treatment of his mental disorder, but he could be so as to receive care and
treatment for his physical disorder (diabetes). As such, he was eligible to be deprived of his liberty.

==Dept of Health summary==
{{Text:DH summary of GJ v The Foundation Trust (2009) EWHC 2972 (Fam)}}

==Citations==
[2009] EWHC 2972 (Fam), (2009) 12 CCL Rep 600, [2010] Fam Law 139, [2010] 1 FLR 1251

Duplicate Bailii citation number: [2009] EWHC 2972 (COP)

==Thanks==
{{thanks|Davidson, Laura|No 5 Chambers}}

==External links==
{{#bailii:(2009) EWHC 2972 (Fam)}}

[[Media:GJ v The Foundation Trust (2009) EWHC 2972 (Fam).pdf|Transcript]] 

[http://www.dh.gov.uk/en/Healthcare/Mentalhealth/DH_111770 Dept of Health: Briefings on legal cases, 2/2/10] - including summary of this case

[[Judiciary of England and Wales, 'Court of Protection: 2009 report' (10/6/10)]] - Summary on page 17

[[Category:Other capacity cases]]
[[Category:Detailed summary]]
[[Category:Transcript]]
[[Category:2009 cases]]