Disputes over whether a deprivation of liberty arising from the care and treatment of a person with a mental disorder should be authorised under the provisions of the Mental Health Act 1983 or the Mental Capacity Act 2005 have become increasing common. This has been highlighted as an area of concern in the Department of Health and Social Care's (DHSC) response to the Independent Review of the Mental Health Act (DHSC, 2021).
A lack of clarity and consistency in the application, in practice, of the interface between the Mental Health Act 1983 and the Mental Capacity Act 2005 are the main reasons for the increasing number of disputes (Gilburt, 2021).
More clarity on the operation of the interface has been provided by the judgment in Manchester University Hospitals NHS Foundation Trust v JS [2023], which should result in more consistency in the use of the legislative frameworks and reduce disputes between health staff.
Authorising a deprivation of liberty
Both the Mental Health Act 1983 and the Mental Capacity Act 2005 have provisions for the authorisation of a deprivation of liberty that are compliant with Article 5 of the European Convention on Human Rights and the European Court of Human Rights ruling in Winterwerp v The Netherlands (1979). The 1983 Act and the 2005 Act require that, unless it is an emergency:
- The person has to be shown by objective medical evidence to be of unsound mind and
- The unsoundness of mind is of a nature or kind that warrants the person being deprived of their liberty.
Since 1959, the use of formal powers of detention under mental health law has been reserved for those who actively resist admission or treatment for their mental disorder. Deprivation of liberty authorisations set out under section 4A of the Mental Capacity Act 2005 were introduced to close a gap in provision highlighted by the European Court of Human Rights in HL v UK 45508/99 [2004], where a person who lacked capacity but was otherwise compliant with treatment was unlawfully detained in a mental health unit on the arbitrary decision of the treating doctor.
The interface
Parliament was aware of a potential for dispute over which legislative framework should be used to authorise a deprivation of liberty of a person who lacked capacity. To try to limit the disputes and uncertainty, ineligibility criteria were introduced in schedule 1A to the Mental Capacity Act 2005, setting out when a person would not be eligible to have their deprivation of liberty authorised under the 2005 Act.
The ineligibility criteria are set out in five cases in schedule 1A that form the yardstick against which eligibility is measured. In practice, complex drafting of the provisions and lack of consistency in applying the criteria have led to confusion among nurses, doctors and judges (A Local Health Board v AB [2015]).
The confusion is especially acute where the person lacks capacity to make decisions relating to the care and treatment needed for their mental disorder, but who are not detained under the Mental Health Act 1983.
The eligibility of this person to have any deprivation of liberty arising from their care or treatment authorised under the Mental Capacity Act section 4A is subject to the ineligibility criteria in case E of schedule 1A of the 2005 Act (see Box 1).
Box 1.Case E of schedule 1A of the Mental Capacity Act 2005
P is a mental health patient, and
| P is within the scope of the Mental Health Act, but not subject to any of the mental health regimens |
|
It can be seen why the complex drafting of case E in schedule 1A can lead to a lack of consistency and disputes over the application of this criteria in practice.
Just such a dispute lay at the heart of the Manchester University Hospitals NHS Foundation Trust v JS [2023] case. The case concerned J who was 17 years old and had autistic spectrum disorder, attention deficit hyperactivity disorder, a learning disability and an attachment disorder. She was a danger to herself and was at risk of danger from others. In early 2023, she had been discharged from a specialist child and adolescent psychiatric unit. Thereafter, she was detained under section 2 of the Mental Health Act 1983 on a general hospital ward for assessment and treatment, having taken an overdose of paracetamol. The plan was for her to be discharged to her mother's care with a package of support and services.
However, detention under section 2 expired before the package could be put in place, and she remained on the ward while this was being arranged. As her behaviour remained challenging and aggressive, and because she had tried to abscond and self-harm, she was subject to various restrictions that amounted to a deprivation of liberty. She was not permitted to leave the ward, she was always supervised, and she was on antidepressant and antipsychotic medication. She lacked the capacity to consent to her detention and was being unlawfully deprived of her liberty.
The Trust's view was that J should not be further detained under the Mental Health Act 1983. The Trust sought an order authorising her deprivation of liberty under section 16 of the Mental Capacity Act 2005 from the Court of Protection. The administrative deprivation of liberty safeguards were unavailable because J was aged under 18 years.
As part of the deliberations the judge had to determine whether J fell within Case E of Schedule 1A. That is:
- Was J within the scope of the Mental Health Act 1983?
- Was J a mental health patient? And
- Was J objecting to some or all of her treatment for her mental disorder?
The judge was satisfied that J fell within the scope of the Mental Health Act 1983 as she was in hospital for the treatment of her mental disorder, and an application could be made for her detention under section 3 of the 1983 Act (Paragraph 12, Schedule 1A, Mental Health Act 1983). The judge made clear that, for the purpose of determining ineligibility under the 2005 Act, it is for a judge or eligibility assessor (in the case of the deprivation of liberty safeguards) to decide, not an approved mental health professional or approved clinician acting under the Mental Health Act 1983 (GJ v The Foundation Trust [2009]).
The judge was also satisfied that J was a mental health patient because she was in hospital for the purpose of having treatment for a mental disorder as defined under section 145 of the Mental Health Act 1983, which included mental health medication and specialist nursing care and supervision to keep her safe from harm.
J was also held to be objecting to being in hospital and to her mental health treatment when her behaviour, wishes, and feelings were taken into account. She was physically resisting her care plan, assaulting staff and attempting to abscond.
The judge concluded that J was ineligible to have her deprivation of liberty authorised under the Mental Capacity Act 2005 (MCA) and that it should have been obvious to the Trust that detention under the Mental Health Act 1983 (MHA) was necessary in this case. He held that:
‘I cannot see how the MHA decision maker can avoid the decision I have had to make in this judgment. If the patient has to be detained for treatment for their mental disorder, and there is no alternative outside the hospital setting, and no other treatment plan available, then it seems clear to me the patient should not be detained under the MCA but rather under the MHA.’
Manchester University Hospitals NHS Foundation Trust v JS [2023], para 96
Conclusion
This ruling, with its focused application of the ineligibility criteria under case E of schedule 1A of the Mental Capacity Act 2005, provides the clarity required by eligibility assessors under the administrative deprivation of liberty safeguards and-makers under the Mental Health Act 1983. Where a person in hospital for the treatment of a mental disorder objects to that treatment or to being in hospital they are entitled to the protection of the Mental Health Act 1983 and are ineligible to have a deprivation of liberty authorised under the 2005 Mental Capacity Act.
KEY POINTS
- Disputes between the use of the Mental Health Act 1983 and Mental Capacity Act 2005 to authorise a deprivation of liberty in hospital are increasingly common
- Schedule 1A to the Mental Capacity Act 2005 sets out ineligibility criteria to ensure that the Mental Health Act 1983 has primacy and is used to detain people who lack capacity but are objecting to admission or treatment of their mental disorder
- It is for the eligibility assessor or a judge of the Court of Protection to decide whether a person is eligible or not to have their deprivation of liberty authorised, not an approved mental health professional or approved clinician under mental health law
- If the person has to be detained for treatment for their mental disorder, and there is no alternative outside the hospital setting, and no other treatment plan is available, the patient should not be detained under the Mental Capacity Act 2005, but under the Mental Health Act 1983