Mental capacity and mental health acts part 3: deprivation of liberty Richard Griffith
Key words: Mental health ■ Primacy ■ Necessity test ■ Mental Health Act ■ Mental Capacity Act
T
he deprivation of liberty safeguards (DOLS) were enacted to close a gap in statutory provision, identified by the European Court of Human Rights, where patients who lacked decision-making capacity but were compliant with treatment were being deprived of their liberty (Ministry of Justice, 2008). A deprivation of liberty in these circumstances was outside the scope of the Mental Health Act 1983 whose detention powers were reserved for those who actively objected to admission and treatment for their mental disorder (Mental Health Act, 1983, section 1). To prevent conflict between the detention provisions of the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA), schedule 1A of the MCA sets out criteria where a person would be ineligible to be deprived of their liberty under the deprivation of liberty safeguards. In summary, schedule 1A make a person ineligible where they are: ■■ Subject to a hospital regime and detained
Richard Griffith, Senior Lecturer in Health Law, College of Human and Health Sciences, Swansea University
998
in hospital under that regime (detained in hospital under the MHA) ■■ Subject to a hospital regime but not detained in hospital (on a leave of absence under the MHA, section 17). The authorised course of action is not in accordance with a requirement the regime imposes or the care or treatment consists in whole or in part of medical treatment for mental disorder in a hospital ■■ Subject to a community regime (such as a community treatment order under the MHA, section 17A). The authorised course of action is not in accordance with a requirement the regime imposes or the care or treatment consists in whole or in part of medical treatment for mental disorder in a hospital ■■ Subject to guardianship. The authorised course of action is not in accordance with a requirement the regime imposes or objects to being a mental health patient ■■ Within the scope of the MHA but not subject to any mental health regime and objects to being a mental health patient (an informal patient who objects to treatment for a mental disorder in hospital). Last month’s article examined the new gap in statutory provision created by the first of the ineligibility criteria (Griffith, 2014).
Primacy initially given to the MHA Initial consideration of when an informal mental health patient was ineligible to be deprived of their liberty under DOLS was given by Charles J in GJ v The Foundation Trust [2009] where a man with an alcoholinduced dementia and type 1 diabetes was deprived of his liberty on an older persons mental health ward. The Court held that, as the deprivation of liberty was required to ensure he received his daily insulin and not for the treatment of his mental disorder, he was eligible for a DOLS authorisation as his care and treatment did not come within the scope of the MHA. On the general issue of the interface between the MHA and MCA in relation to deprivations of liberty, Charles J held that the purpose of introducing DOLS was not to provide alternative regimes but to leave the existing regime under the MHA in place with primacy and to fill the gap identified in HL v United Kingdom (45508/99) [2005]. The MHA includes a number of checks and balances suitable to mental health care and treatment that are not replicated under the MCA. There was no overlap between the regimes that conferred on decision makers an ability to choose between them on the basis that both are equally applicable. Charles J was initially of the view that, as the MHA had primacy where a deprivation of liberty was needed to treat a mental disorder, it would be unlawful for medical practitioners referred to in sections 2 and 3 of the MHA, decision makers under the MCA, treating doctors, approved mental health professionals (AMHPs) or anyone else to proceed on the basis that they can pick and choose between the MHA and MCA.
Primacy refined Charles J changed that view and refined the primacy approach in AM v South London and Maudsley NHS Foundation Trust and The Secretary of State for Health [2013] a case
© 2014 MA Healthcare Ltd
Abstract
Following the introduction of the deprivation of liberty safeguards, the courts initially insisted that a deprivation of liberty for the treatment of a mental disorder was authorised under a section of the Mental Health Act 1983 as it had primacy in matters concerning mental disorder (GJ v The Foundation Trust [2009]). The courts later refined that approach to primacy and accepted that, where appropriate, decision makers could use either the Mental Health Act 1983 or the Mental Capacity Act 2005 deprivation of liberty safeguards to authorise a deprivation of liberty for the treatment of a mental disorder. In this third article on the interface between the Mental Health Act 1983 and Mental Capacity Act 2005, the author considers when it would be necessary to detain an adult who lacked capacity under the Mental Health Act 1983 instead of the Mental Capacity Act 2005 deprivation of liberty safeguards.
This month’s article discusses how the fifth ineligibility requirement applies in practice.
British Journal of Nursing, 2014, Vol 23, No 18
British Journal of Nursing. Downloaded from magonlinelibrary.com by 138.253.100.121 on December 3, 2015. For personal use only. No other uses without permission. . All rights reserved.
LEGAL that sought to answer the question of when, in practice, detention under MHA is necessary for incapacitated adults. Charles J now holds that DOLS provide an alternative basis to the MHA to authorise the deprivation of liberty of incapacitated persons for a range of purposes including assessment of, or treatment for, mental or physical disorders in hospital. A decision maker under the MHA must now consider whether an alternative means of authorising a deprivation of liberty is available and, if it is, whether it should be used when applying the necessity test set by the MHA. The necessity test requires an AMHP to be satisfied that it is necessary for the person to be detained under the MHA to be assessed or to have treatment for their mental disorder. Charles J further held that, in practice, this requires three questions to be considered: ■■ Does the person have capacity to consent to admission as an informal patient? A person must lack capacity for DOLS to be considered ■■ Might the hospital be able to rely on the provisions of the MCA to lawfully assess or treat the person? Will the person comply with all the elements of their care and treatment and therefore be eligible for a DOLS authorisation? ■■ If there is a choice between reliance on the MHA and the MCA DOLS, which is the least restrictive way of achieving the proposed assessment or treatment?
© 2014 MA Healthcare Ltd
Rationale for a more flexible approach The judge’s fundamental change in approach acknowledges that he was wrong to emphasise primacy in GJ v The Foundation Trust [2009]. He now argued that to make general propositions on the interface between the MHA and the MCA was dangerous. He accepted that Parliament had provided statutory regimes that gave alternatives to be considered by the relevant statutory decision makers under the MHA and MCA DOLs schemes. Primacy is now to be seen as case-specific and the emphasis is on the eligibility of the person to have their deprivation of liberty authorised by the DOLS scheme instead of the MHA. In BB v AM [2010] the Court held that a woman with learning disabilities receiving treatment in an acute mental health unit as an informal patient could have her deprivation of liberty authorised under the MCA DOLS scheme as she was happy to take medication for her challenging behaviour and so was not objecting to her mental health treatment in hospital.
British Journal of Nursing, 2014, Vol 23, No 18
To determine if a person is objecting to mental health treatment, the MCA schedule 1A (5) requires that regard be given to all the circumstances of the case including, where appropriate, the person’s behaviour, wishes, feelings and views, beliefs and values. While refusing to accept, spitting out medication or the need to administer medication covertly would be a clear sign of objection, treatment under the MHA section 145 is widely defined and also includes: ‘nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations’ Objection to any element within that definition can result in the person being ineligible for a DOLS authorisation and primacy being given to detention under the MHA. In Northamptonshire Healthcare NHS Foundation Trust v ML [2014] the Court agreed that it would be in the best interests of a man with severe learning disabilities to receive intensive rehabilitation in a hospital where he would be deprived of his liberty. The treating NHS trust wanted the deprivation of liberty to be authorised under the MCA, either through a DOLS authorisation of a welfare order from the Court of Protection. The Trust anticipated difficulties in securing the man’s detention under the MHA, section 3, because of his mother’s opposition to his admission. She was his nearest relative with the power to object to detention under section 3, seek discharge under section 23, and appeal to a tribunal and hospital managers for discharge. The Court of Protection held that the only way to authorise the deprivation of liberty was under the MHA. He was ineligible to be deprived of his liberty under the MCA as
the fifth ineligibility criteria applied in the case. He would be a mental health patient in hospital and previous admissions had shown that the man would be unlikely to cooperate with his treatment and rehabilitation while in hospital. There was no lawful alternative but to use the provisions of the MHA.
Conclusion Charles J’s refinement of the primacy principle in relation to deprivation of liberty and the interface between the MHA and the MCA deprivation of liberty safeguards does now allow decision makers under the Statutes to choose the most appropriate and least restrictive method of detention in the case of adults who lack decision-making capacity. Before deciding to authorise a deprivation of liberty using DOLS, instead of detention under the MHA decision makers must address the three-question test set by Charles J in AM v South London and Maudsley NHS Foundation Trust and The Secretary of State for Health [2013] and be satisfied that the person lacks capacity to decide on accommodation for care and treatment and is eligible for a DOLS authorisation under BJN schedule 1A of the MCA. Conflict of interest: none
AM v South London and Maudsley NHS Foundation Trust and The Secretary of State for Health [2013] UKUT 0365 (AAC) BB v AM [2010] EWHC 1916 GJ v The Foundation Trust [2009] EWHC 2972 (Fam) Griffith R (2014) Mental capacity and mental health acts part 2: a new gap in statutory provision. Br J Nurs 23(11): 990–1. doi: 10.12968/bjon.2014.23.16.900 HL v United Kingdom (45508/99) (2005) 40 EHRR 32 Ministry of Justice (2008) Mental Capacity Act 2005, Deprivation of liberty safeguards, Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice. TSO, London Northamptonshire Healthcare NHS Foundation Trust v ML [2014] EWCOP 2
KEY POINTS n The Courts initially insisted that a deprivation of liberty for the treatment of a mental disorder was authorised under a section of the Mental Health Act 1983, as it had primacy over the deprivation of liberty safeguards n Now it is accepted that the deprivation of liberty safeguards provide an alternative basis to the Mental Health Act 1983 to authorise the deprivation of liberty of incapacitated persons for the assessment and treatment of physical and mental disorder n The issue of primacy is based on the facts of each case and focuses on the person’s eligibility to have a deprivation of liberty authorised by the Mental Capacity Act 2005
999
British Journal of Nursing. Downloaded from magonlinelibrary.com by 138.253.100.121 on December 3, 2015. For personal use only. No other uses without permission. . All rights reserved.
Key words: Mental health ■ Primacy ■ Necessity test ■ Mental Health Act ■ Mental Capacity Act
T
he deprivation of liberty safeguards (DOLS) were enacted to close a gap in statutory provision, identified by the European Court of Human Rights, where patients who lacked decision-making capacity but were compliant with treatment were being deprived of their liberty (Ministry of Justice, 2008). A deprivation of liberty in these circumstances was outside the scope of the Mental Health Act 1983 whose detention powers were reserved for those who actively objected to admission and treatment for their mental disorder (Mental Health Act, 1983, section 1). To prevent conflict between the detention provisions of the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA), schedule 1A of the MCA sets out criteria where a person would be ineligible to be deprived of their liberty under the deprivation of liberty safeguards. In summary, schedule 1A make a person ineligible where they are: ■■ Subject to a hospital regime and detained
Richard Griffith, Senior Lecturer in Health Law, College of Human and Health Sciences, Swansea University
998
in hospital under that regime (detained in hospital under the MHA) ■■ Subject to a hospital regime but not detained in hospital (on a leave of absence under the MHA, section 17). The authorised course of action is not in accordance with a requirement the regime imposes or the care or treatment consists in whole or in part of medical treatment for mental disorder in a hospital ■■ Subject to a community regime (such as a community treatment order under the MHA, section 17A). The authorised course of action is not in accordance with a requirement the regime imposes or the care or treatment consists in whole or in part of medical treatment for mental disorder in a hospital ■■ Subject to guardianship. The authorised course of action is not in accordance with a requirement the regime imposes or objects to being a mental health patient ■■ Within the scope of the MHA but not subject to any mental health regime and objects to being a mental health patient (an informal patient who objects to treatment for a mental disorder in hospital). Last month’s article examined the new gap in statutory provision created by the first of the ineligibility criteria (Griffith, 2014).
Primacy initially given to the MHA Initial consideration of when an informal mental health patient was ineligible to be deprived of their liberty under DOLS was given by Charles J in GJ v The Foundation Trust [2009] where a man with an alcoholinduced dementia and type 1 diabetes was deprived of his liberty on an older persons mental health ward. The Court held that, as the deprivation of liberty was required to ensure he received his daily insulin and not for the treatment of his mental disorder, he was eligible for a DOLS authorisation as his care and treatment did not come within the scope of the MHA. On the general issue of the interface between the MHA and MCA in relation to deprivations of liberty, Charles J held that the purpose of introducing DOLS was not to provide alternative regimes but to leave the existing regime under the MHA in place with primacy and to fill the gap identified in HL v United Kingdom (45508/99) [2005]. The MHA includes a number of checks and balances suitable to mental health care and treatment that are not replicated under the MCA. There was no overlap between the regimes that conferred on decision makers an ability to choose between them on the basis that both are equally applicable. Charles J was initially of the view that, as the MHA had primacy where a deprivation of liberty was needed to treat a mental disorder, it would be unlawful for medical practitioners referred to in sections 2 and 3 of the MHA, decision makers under the MCA, treating doctors, approved mental health professionals (AMHPs) or anyone else to proceed on the basis that they can pick and choose between the MHA and MCA.
Primacy refined Charles J changed that view and refined the primacy approach in AM v South London and Maudsley NHS Foundation Trust and The Secretary of State for Health [2013] a case
© 2014 MA Healthcare Ltd
Abstract
Following the introduction of the deprivation of liberty safeguards, the courts initially insisted that a deprivation of liberty for the treatment of a mental disorder was authorised under a section of the Mental Health Act 1983 as it had primacy in matters concerning mental disorder (GJ v The Foundation Trust [2009]). The courts later refined that approach to primacy and accepted that, where appropriate, decision makers could use either the Mental Health Act 1983 or the Mental Capacity Act 2005 deprivation of liberty safeguards to authorise a deprivation of liberty for the treatment of a mental disorder. In this third article on the interface between the Mental Health Act 1983 and Mental Capacity Act 2005, the author considers when it would be necessary to detain an adult who lacked capacity under the Mental Health Act 1983 instead of the Mental Capacity Act 2005 deprivation of liberty safeguards.
This month’s article discusses how the fifth ineligibility requirement applies in practice.
British Journal of Nursing, 2014, Vol 23, No 18
British Journal of Nursing. Downloaded from magonlinelibrary.com by 138.253.100.121 on December 3, 2015. For personal use only. No other uses without permission. . All rights reserved.
LEGAL that sought to answer the question of when, in practice, detention under MHA is necessary for incapacitated adults. Charles J now holds that DOLS provide an alternative basis to the MHA to authorise the deprivation of liberty of incapacitated persons for a range of purposes including assessment of, or treatment for, mental or physical disorders in hospital. A decision maker under the MHA must now consider whether an alternative means of authorising a deprivation of liberty is available and, if it is, whether it should be used when applying the necessity test set by the MHA. The necessity test requires an AMHP to be satisfied that it is necessary for the person to be detained under the MHA to be assessed or to have treatment for their mental disorder. Charles J further held that, in practice, this requires three questions to be considered: ■■ Does the person have capacity to consent to admission as an informal patient? A person must lack capacity for DOLS to be considered ■■ Might the hospital be able to rely on the provisions of the MCA to lawfully assess or treat the person? Will the person comply with all the elements of their care and treatment and therefore be eligible for a DOLS authorisation? ■■ If there is a choice between reliance on the MHA and the MCA DOLS, which is the least restrictive way of achieving the proposed assessment or treatment?
© 2014 MA Healthcare Ltd
Rationale for a more flexible approach The judge’s fundamental change in approach acknowledges that he was wrong to emphasise primacy in GJ v The Foundation Trust [2009]. He now argued that to make general propositions on the interface between the MHA and the MCA was dangerous. He accepted that Parliament had provided statutory regimes that gave alternatives to be considered by the relevant statutory decision makers under the MHA and MCA DOLs schemes. Primacy is now to be seen as case-specific and the emphasis is on the eligibility of the person to have their deprivation of liberty authorised by the DOLS scheme instead of the MHA. In BB v AM [2010] the Court held that a woman with learning disabilities receiving treatment in an acute mental health unit as an informal patient could have her deprivation of liberty authorised under the MCA DOLS scheme as she was happy to take medication for her challenging behaviour and so was not objecting to her mental health treatment in hospital.
British Journal of Nursing, 2014, Vol 23, No 18
To determine if a person is objecting to mental health treatment, the MCA schedule 1A (5) requires that regard be given to all the circumstances of the case including, where appropriate, the person’s behaviour, wishes, feelings and views, beliefs and values. While refusing to accept, spitting out medication or the need to administer medication covertly would be a clear sign of objection, treatment under the MHA section 145 is widely defined and also includes: ‘nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations’ Objection to any element within that definition can result in the person being ineligible for a DOLS authorisation and primacy being given to detention under the MHA. In Northamptonshire Healthcare NHS Foundation Trust v ML [2014] the Court agreed that it would be in the best interests of a man with severe learning disabilities to receive intensive rehabilitation in a hospital where he would be deprived of his liberty. The treating NHS trust wanted the deprivation of liberty to be authorised under the MCA, either through a DOLS authorisation of a welfare order from the Court of Protection. The Trust anticipated difficulties in securing the man’s detention under the MHA, section 3, because of his mother’s opposition to his admission. She was his nearest relative with the power to object to detention under section 3, seek discharge under section 23, and appeal to a tribunal and hospital managers for discharge. The Court of Protection held that the only way to authorise the deprivation of liberty was under the MHA. He was ineligible to be deprived of his liberty under the MCA as
the fifth ineligibility criteria applied in the case. He would be a mental health patient in hospital and previous admissions had shown that the man would be unlikely to cooperate with his treatment and rehabilitation while in hospital. There was no lawful alternative but to use the provisions of the MHA.
Conclusion Charles J’s refinement of the primacy principle in relation to deprivation of liberty and the interface between the MHA and the MCA deprivation of liberty safeguards does now allow decision makers under the Statutes to choose the most appropriate and least restrictive method of detention in the case of adults who lack decision-making capacity. Before deciding to authorise a deprivation of liberty using DOLS, instead of detention under the MHA decision makers must address the three-question test set by Charles J in AM v South London and Maudsley NHS Foundation Trust and The Secretary of State for Health [2013] and be satisfied that the person lacks capacity to decide on accommodation for care and treatment and is eligible for a DOLS authorisation under BJN schedule 1A of the MCA. Conflict of interest: none
AM v South London and Maudsley NHS Foundation Trust and The Secretary of State for Health [2013] UKUT 0365 (AAC) BB v AM [2010] EWHC 1916 GJ v The Foundation Trust [2009] EWHC 2972 (Fam) Griffith R (2014) Mental capacity and mental health acts part 2: a new gap in statutory provision. Br J Nurs 23(11): 990–1. doi: 10.12968/bjon.2014.23.16.900 HL v United Kingdom (45508/99) (2005) 40 EHRR 32 Ministry of Justice (2008) Mental Capacity Act 2005, Deprivation of liberty safeguards, Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice. TSO, London Northamptonshire Healthcare NHS Foundation Trust v ML [2014] EWCOP 2
KEY POINTS n The Courts initially insisted that a deprivation of liberty for the treatment of a mental disorder was authorised under a section of the Mental Health Act 1983, as it had primacy over the deprivation of liberty safeguards n Now it is accepted that the deprivation of liberty safeguards provide an alternative basis to the Mental Health Act 1983 to authorise the deprivation of liberty of incapacitated persons for the assessment and treatment of physical and mental disorder n The issue of primacy is based on the facts of each case and focuses on the person’s eligibility to have a deprivation of liberty authorised by the Mental Capacity Act 2005
999
British Journal of Nursing. Downloaded from magonlinelibrary.com by 138.253.100.121 on December 3, 2015. For personal use only. No other uses without permission. . All rights reserved.
