Mental health law briefing 202 – Complex decisions: the interface between the MHA 1983 and the MCA
AM v (1) South London & Maudsley NHS Foundation Trust and (2) The Secretary of State for Health  UKUT 0365 (AAC)
This recent case throws into sharp focus the interface between the MHA 1983 and the MCA 2005 in respect of admission and discharge decisions. The judgment of Charles J lessens the apparent clarity set out in GJ v The Foundation Trust  EWHC 2972 (Fam) in which he stated that the MHA took general primacy over the MCA. However, in AM he makes it clear that the references made in GJ as to the primacy of the MHA should be confined purely to circumstances where the individual is within the scope of the MHA 1983.
The case of AM further highlights the difficulty faced by decision-makers who are responsible for determining how to approach the assessment or treatment required for an in-patient in a psychiatric hospital, in circumstances amounting to a deprivation of liberty. At the heart of this case is the complicated interaction between the MHA and the MCA 2005, and its related Deprivation of Liberty Safeguards (DoLS).
In brief, ‘AM’ was a 78-year-old woman who was removed from her home in execution of a warrant under section 135(1) MHA, in order to be assessed under section 2 MHA. The First Tier Tribunal refused an application, made by AM’s daughter, to discharge her from the hospital. This was refused on the basis of recent history whereby AM’s daughter had failed to co-operate with the community team and had also failed to tend to AM’s medication needs.
A second tribunal application contended that AM should be discharged from section 2 MHA on the basis that she would agree to remain in hospital on a voluntary basis. The detention would then become unnecessary. There was no dispute that she lacked the requisite mental capacity and it
was argued that she could be appropriately assessed and treated under section 5 MCA. If she was deprived of liberty, that could be authorised under DOLS. It was agreed by all parties that AM was in hospital for the purpose of receiving psychiatric treatment.
Should the MHA or DOLS be used where a person requires assessment/treatment as an in-patient in a psychiatric hospital and where they might be deprived of their liberty?
Charles J confirmed the approach to be adopted by setting out three questions. These can be summarised as follows:-
Does the person have capacity to consent to admission as an informal patient?
If a person does have capacity, then the MCA becomes irrelevant. Therefore, if they agree, they can be informally admitted. However, if they disagree then the tests set by the MHA will be determinative.
If they lack capacity, then the second question below must be addressed.
Might the hospital be able to rely on the provisions of the MCA to assess or treat the person?
Under this heading it is necessary to consider two factors. Firstly, will the individual comply with the proposal? It is necessary to take account of the degree to which the individual will comply and so consideration should be given to any risks of non-compliance and what might trigger this. Secondly, consideration should be given to whether the MCA/DOLS provisions can be applied. In this context, Charles J highlighted that the DOLS regime will apply where there is a risk that cannot sensibly be ignored that the relevant circumstances amount to a deprivation of liberty. Therefore a decision must be made on whether the individual is eligible for DOLS and whether an authorisation is required.
If there is a choice between reliance upon the MHA 1983 and the MCA 2005, which is the least restrictive way of achieving the proposed assessment or treatment?
Charles J noted there remains a perception that detention under the MHA carries a certain level of stigma, although of course an authorisation under DOLS may not necessarily be any less restrictive. Charles J emphasised that the decision maker must firstly consider the availability of the MCA regime and its impact, before comparing it with the impact of detention under the MHA. This inevitably requires a fact sensitive approach.
On the facts here, AM lacked mental capacity. There was an arguable case that she would not be compliant throughout the proposed assessment and any subsequent treatment and thus the matter was remitted to a differently constituted First Tier Tribunal to determine the issue of compliance.
This case clearly highlights the fact sensitive nature of these difficult decisions and the level of enquiry required to invoke the appropriate regime of detention.
It is clear that all AMHPs and doctors making medical decisions under the MHA must also give careful thought to DOLS. Often the appropriate regime of detention will ultimately depend upon the compliance of the patient and the availability of the regime.
There is some difference in opinion of commentators over the real impact of this case. In practice it will only apply to a sectioned non-compliant incapable patient who subsequently becomes compliant. As noted by Professor Richard Jones, the judgment suggests at this stage that the responsible clinician should consider discharging the patient and triggering a DOLS application, if this is considered the least restrictive way of achieving a patient’s assessment and treatment. Clearly this involves a value judgment and it is his opinion that the MHA will always be the least restrictive option because it offers vastly superior protection to the patient.
Perhaps the most important point to come out of this case is that the decision maker must be able to demonstrate that they have taken into account all the relevant factors. Prior to AM many might have simply relied upon the primacy of the MHA, as underlined in GJ. The issue is no longer that simple.
Other commentators contend that the GJ approach still applies because part of the criteria for detention under the MHA requires it to be both ‘necessary’ and ‘appropriate’. AMHPs must also consider less restrictive alternatives and if an appropriate option can be found, then the criteria for detention cannot be met. If however the criteria are met, then it may still be appropriate to detain under the MHA.
Which approach to adapt is a notoriously difficult judgment call to make and AM has added to the complexity of this area by highlighting other factors which must now also be considered.
Those providing NHS Services with a turnover in excess of £10 million will need to obtain an additional Licence from April 2014: This is when the requirement for a Monitor Licence comes into force. Currently those who provide NHS continuing healthcare or NHS funded nursing care are excluded but with effect from 31st March 2015, that exclusion will come to an end and Monitor Licences will be required. Monitor Licences will therefore now be required by some care homes from that date.
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