In this case the Court of Protection considered the interface between the MHA and MCA in respect of a patient who was detained in a hospital, under a standard DoLS authorisation, where he was being treated for both mental and physical conditions.
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, as it could not authorise treatment and the treatment was presumably not thought to be appropriate under best interests (or he was not regarded as incapacitated on that issue, perhaps). He was, however, forced to take medication for his physical condition, diabetes, and this was done under the ordinary s5 provisions of the MCA.
The Court of Protection was asked to consider whether he was ineligible to be detained under the DoLS procedure, on the basis that he was objecting to treatment for a mental condition, and was in a hospital.
The Court of Protection set out that where the circumstances suggest case E (as set out in schedule 1A) may be relevant there are two tests, both of which must be met, before a person had to be deemed to be ineligible for authorisation under the DoLS procedure. (In fact there are 3 in case E but the third relates to there being a consenting deputy or attorney overriding the objection, and this was not relevant in GJ’s case).
Firstly the person must be within the scope of the MHA 1983 (does the person have a mental disorder warranting detention in hospital for the purposes in section 2 or 3 of the MHA) and not subject to any of the other mental health regimes such as guardianship, a CTO, leave or conditional discharge. The eligibility assessor must determine whether s/he believes the patient could be detained under the MHA and not concern themselves with whether another doctor could possibly, or would be likely to, or could not possibly not, regard the person as warranting detention in hospital. Secondly the criterion set out in paragraph 5 of the schedule must also be met, namely that the persons object to being a mental health patient.
In determining whether the first test was made out the Judge confirmed that it is not possible for practitioners to ‘choose’ which statutory regime to follow (ie MCA or MHA) on general considerations such as therapeutic benefit. He made it clear that where a practitioner needs to assess whether Case E may apply to a given set of facts, the MHA has primacy over the MCA provisions whenever it applies.
Paragraph 12 of schedule 1A sets out when a person should be considered within the scope of the MHA. Under this direction practitioners will need to determine whether an “application could be made under section 2 or 3 of the MHA” The judgment clarified 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 the person).” Because of the primacy of the MHA a decision maker must reach a conclusion without relying on the assumption that an alternative solution is available under the MCA and that this would be in the mind of a hypothetical mental health professional when considering whether detention is warranted.
If satisfied, however, that the person is within the scope of the MHA they must then go on to determine whether that person objects to being a mental health patient. As part of this second test one has to ascertain whether the relevant instrument being applied would make the person a ‘mental health patient’ as defined by paragraph 16 as “a person accommodated in a hospital, for the purpose of being given medical treatment for mental disorder”.
In GJ the judge advised that a decision maker should look at:
(i) the treatment P would receive for his physical disorders unconnected to his
mental disorders (i.e. his package of physical treatment), and
(ii) the treatment P would receive for his mental disorders (including physical
disorders connected to, or likely to directly affect, his mental disorder).
The decision-maker must then ask whether, but for the package of physical treatment, whether the person would warrant being 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 paragraph 5(3) 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 intended Standard Authorisation does not actually “authorise P to be a mental health patient” at all, and he is therefore not ineligible for DOLS on that ground.
In effect, the issue is whether a person would be detained in hospital for treatment of his mental disorders if one ignored the need for treatment of his unrelated physical disorders.
The difficulty with this case is that it was common ground in the case of GJ that he was in hospital to manage his self-neglect which was as a result of his mental health condition. However, it was also agreed that the only real treatment consisted of intervention purely by way of medication for his physical condition. He could receive medication for his mental health condition if he did not object to taking this, but the DoLS authorisation (the instrument in question) sought only to ensure he was treated for his physical condition. Therefore he was not a mental health patient and could not be said to be objecting to being one, and was not therefore ineligible for the DoLS procedure.
Despite this finding the Judge did go on to advise on what decision makers should consider when seeking to determine whether a person, who may satisfy the circumstances of Case E, is objecting, and what to. He made clear that the focus must be on whether the person is or will object to the treatment proposed. If he does not object to what is proposed (like HL in HL v UK (2004)) he can be (or is eligible to be) deprived of liberty under the DoLS procedure. If he was objecting to the mental health treatment, he will be ineligible. GJ did object, so he met the second condition, but he did not also meet the first – he could not feasibly have been detained for the purposes of mental health treatment.