GJ v The Foundation Trust  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.
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.
- (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.
- 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
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.
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.
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).”
B, (2009) 12 CCL Rep 600,  Fam Law 139, B
Duplicate Bailii citation number:B
Thanks to Laura Davidson (No 5 Chambers) for providing the judgment.
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