Mental health law briefing 159 – Deprivation of Liberty Safeguards case update
The Deprivation of Liberty Safeguards (DoLS) have now been in force for some time. However, there is still confusion regarding the interaction of DoLS and the Mental Health Act. A number of recent cases concerning the use of the DoLS have assisted with this
GJ v. Foundation Trust, PCT and the Secretary of State for Health 
The first case concerns the difficult issue of the interaction between the Mental Health Act 1983 (MHA) and the Deprivation of Liberty Safeguards (DoLS). The Court of Protection has recently given guidance on how to approach cases where the use of one of these regimes is in contemplation.
In the case of GJ, the Court considered a 65 year old man who was suffering from vascular dementia and Korsakoff’s syndrome. A feature of his condition was self-neglect. The patient also suffered from diabetes although this was unconnected to his mental disorder. It was accepted that his mental disorder did affect his ability to manage the diabetes appropriately and after the death of the man’s partner, who had assisted him in managing his diabetes previously, he failed to control his condition. He suffered a series of hypoglycaemic attacks which led to his detention under Sections 2 and 3 of the MHA. Thereafter he was detained in a residential care centre and subsequent clinics under a standard DoLS authorisation. The patient objected to being detained in hospital under the DoLS authorisation, in particular he objected to his detention for any treatment for his mental disorder. The patient was considered to lack capacity to litigate or make any decisions concerning his care, treatment or residence.
In a complicated and lengthy judgement, the court concluded that the gentleman did not fall within the scope of the MHA and that the standard DoLS authorisation was appropriate in this case.
Those involved in the care and treatment of incapacitated individuals will be aware that those detained under specific sections of the MHA are ineligible for DoLS authorisation. What is more complicated is that under the DoLS provisions  an individual will be ineligible for DoLS authorisation if: l an application in respect of a patient could be made under section 2 or section 3 of the MHA, and l the patient could be detained in a hospital in pursuance of such an application, were one made, and l inter alia the patient objects to being a mental health patient.
The judge found in this case that whether an application in respect of a patient could be made under sections 2 or 3 and/or he could be detained in hospital pursuant to such an application was a matter of judgment for the decision maker in question. The judge went on to set out additional questions the decision maker should ask to assist in reaching a decision on ineligibility in these sorts of cases. Those questions are:
“(a) What care and treatment should the patient (who will usually have a mental disorder within the MHA 1983 definition) have if, and so long as, he remains in hospital:
(i) for his physical disorders that are unconnected to, and are unlikely to directly affect, his mental disorders (the package of treatment for physical treatment); and
(ii) for his (i) mental disorders and (ii) physical disorders or illnesses that are connected to them and/or which are likely to directly affect his mental disorders (the package of treatment for mental disorder)?
(b) If the need for the package of physical treatment did not exist, would he conclude that the patient should be detained in a hospital, in circumstances that amount to a deprivation of his liberty.
And then, on that basis;
(c) Whether the only effective reason why he considers that the patient should be detained in hospital, in circumstances that amount to a deprivation of liberty, is his need for the package of physical treatment.” 
The judge concluded that if the answer to part (b) is no and part (c) is yes then the patient will not be a mental health patient and would not fall within the scope of the MHA and would therefore fall within the scope of the DoLS provisions. In short, the question to be asked is, would the patient “be detained in hospital for the treatment for his mental disorders if it were not for the need for treatment of his physical disorders”?  If the only reason the patient is being detained is because of the need to treat physical disorders, then they will not be within the scope of the MHA but will fall within the scope of the DoLS provisions.
Through using the questions above, the court was implementing a system whereby decision makers need to test what the purpose of any deprivation of liberty within a hospital setting is. It was clear that in this particular case, whilst the patient had a mental disorder within the definition of the MHA, and a symptom of that included the neglect of his diabetes, the deprivation of his liberty was for the treatment of his diabetes (i.e. physical treatment), and not treatment of his mental disorder.
As detailed above, one of the other conditions for ineligibility for DoLS authorisation is the patient’s objection. Here GJ did object to being a mental health patient and so met that condition. However, as set out previously the court found that he did not meet the other conditions for ineligibility, namely he was not to be considered a mental health patient within the scope of the MHA.
It is of particular note that the judge found that the MHA has primacy over the DoLS provisions and that “medical practitioners could not choose between the two statutory regimes on the basis that they considered one broadly preferable for the individual patient, but should [instead] ask themselves whether, in their view, the criteria set by sections 2 or 3 of the Mental Health Act were met.”
Accordingly, where practitioners are faced with patients of the sort noted above (i.e. those not detained under the MHA but potentially falling within its scope), where there is uncertainty about whether the DoLS provisions apply, the decision maker should apply the questions provided by this case and explore fully the underlying purpose of the detention.
Whilst this Judgment is complex, Mental Health practitioners will see that the courts have continued the approach previously taken concerning treatment under the MHA, in requiring professionals to focus on the underlying purpose of the treatment.
Should questions arise in practice about the complex interaction between the MHA and the DOLS provisions legal advice should usually be sought.
Re G v E (by his Litigation Friend the Official Solicitor) 
The second case considered whether Article 5 of the European Convention on Human Rights (Right to Liberty and Security) created a specific threshold that needs to be reached before the statutory DOLS provisions can be used to detain an incapacitated person in their best interests. The Court of Appeal case concerned a 19 year old male, E, who suffered from a rare genetic condition, tuberous sclerosis.
As a consequence of this condition he lacked the capacity to make decisions about his own life including where he should live. For approximately 10 years he had lived with F, initially his foster carer and, after his 18 birthday, with F under an adult placement. In April 2009 E was removed by his local authority from F’s care to alternative accommodation. The local authority sought neither the consent of F or E’s sister, G and did not use the DOLS provisions. E’s sister made an application to the Court of Protection and sought declarations that the local authority had (i) unlawfully detained E in breach of Article 5 and/or DOLS and/or Article 8 (Right to Respect for Private and Family Life); and (ii) that it was in E’s best interests to return to live with F. The judge in the Court of Protection agreed that in removing E contrary to the wishes of F and G, the local authority had deprived E of his liberty under Article 5. The judge also decided that removal from F’s care was a breach of E’s Article 8 Rights. Having found that the local authority had breached E’s Human Rights by not utilising the DOLS provisions under the Mental Capacity Act 2005 (the Act) the judge went on to indicate that:
- An interim ‘best interests’ declaration made prior to the removal ensured E’s detention was lawful.
- Article 5 of the Convention on Human Rights did not create a “threshold condition” which had to be satisfied in deprivation of liberty cases before the court could go on to consider what was in an individual’s best interests.
- In making an order in E’s best interests the court could authorise a deprivation of liberty under Sections 16 and 48 of the Act.
- The judge found on the facts that it was in E’s best interests to remain where he was and not return to F’s care.
The judge went on to make an order under Section 48 of the Act that E should remain in the alternative placement until a final hearing on the matter. In the event matters overtook themselves and, having received further evidence, the judge, at a later hearing, took the view that E should return to live with F.
E’s sister appealed the decision and, in particular, the Court of Appeal focussed on whether the judge had erred in rejecting G’s submission that Article 5 of the Convention placed a distinct threshold condition which had to be satisfied before a person, who lacked capacity, could be detained in his or her best interests under the Act.
The Court of Appeal found that the Act, including the powers under Sections 16 and 48, as well as the DoLS regime, were compliant with Article 5 and there was no threshold conditions that needed to be complied with other than the procedures already set out in the Act. The Court noted, “The Act provided a ‘procedure prescribed by law’ for depriving such persons of their liberty. Article 5 did not impose threshold conditions which had to be satisfied before a best interests assessment under DoLS could be carried out.” 
This case provides useful confirmation that where a deprivation of liberty is required in an incapacitated person’s best interests, providers can use the prescribed DoLS provisions, or if necessary seek a declaration from the Court of Protection under Sections 16 or 48, and in neither case is there a need to consider additional Article 5 threshold conditions before doing so.
  1 FLR 1251
 See paragraphs 5 & 12 of Schedule 1A of the Mental Capacity Act 2005
  1 FLR 1251, para 132
 Department of Health Briefing on legal cases, 2/2/2010
  1FLR1251, para 2 of headnote.
 See RadcliffesLeBrasseur Mental Health Briefing No.150
  All ER (D) 180 (Jul)  Ibid
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.