AM v SLAM NHS Foundation Trust [2013] UKUT 365 (AAC), [2013] MHLO 80

It was argued at the tribunal that AM should be discharged from s2 in order to remain in hospital informally. (1) A tribunal 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. The tribunal had failed properly to consider whether AM would comply with informal admission (which is relevant to the second question) so the case was remitted to a differently-constituted tribunal. (2) To be compatible with Article 5 ECHR, ss 2, 3 and 72 MHA 1983 have to be applied on the basis that for detention in hospital to be 'warranted' it has to be 'necessary' in the sense that the objective set out in the relevant statutory test cannot be achieved by less restrictive measures. [A more detailed summary is available on the case page.]

Detailed summary

In this case 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 gist of the case is that the tribunal (and other decision makers) should ask three questions once it is established that admission to hospital (as opposed to treatment elsewhere) is warranted:

1. Does the relevant person have the capacity to consent to the arrangements referred to in s131 MHA?
If the person has capacity then only the MHA is relevant.
If the person lacks capacity then consider question 2.
2. Might the hospital be able to rely on the provisions of the MCA to lawfully assess or treat the relevant person?
There are two issues here:
(a) Is P eligible for DOLS? He is ineligible if he objects.
i. If the person is a non-compliant incapacitated patient then only the MHA is relevant.
ii. If the person is a compliant incapacitated patient, then consider the next issue.
iii. [The situation where the person objects to some but not all treatment was left undecided.]
(b) Would DOLS be required? It is required 'when it appears that judged objectively there is a risk that cannot sensibly be ignored that the relevant circumstances amount to a deprivation of liberty'.
If either answer is 'No' (non-compliant or DOLS not required) then only the MHA is relevant.
If the answers are 'Yes' (compliant and DOLS required) then consider question 3.
3. How should the existence of a choice between reliance on the MHA and the MCA and its DOLS be taken into account?
In considering the MHA 'necessity' test consider the following:
(a) Is the MCA regime actually available in practice?
(b) When would it be available? (Relevant to deferring discharge.)
(c) Which regime involves the least restrictive way of best achieving the proposed assessment or treatment?
i. Relevant considerations include fluctuating capacity and the likelihood of continued compliance.
ii. Ignore the GJ principle (about the MHA having primacy) here.
iii. If DOLS is less restrictive then it will 'generally but not always' be more appropriate.

On the compliance issue the tribunal had concluded: '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.' The Upper Tribunal decided the tribunal's various findings had not properly address the question of whether AM would be compliant with informal admission. The decision was therefore unlawful and the case was remitted to a differently-constituted tribunal.

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