Mental Capacity Act, DoLS and the Mental Health Act case law update - Rebecca Fitzpatrick - October 2015

@BJhealthlaw
• SS for Justice V KC – conditional discharge
& DoLS
• RS v LCC – responsibility for s.49 reports
under MCA
• recent amputation judgment of Jackson
Re B
• Re X update – Re NRA & Ors

@BJhealthlaw
• difficult to discharge restricted patients
who lack capacity from detention under
the MHA 1983
• often require robust conditions in the
community that amount to a Deprivation
of liberty

@BJhealthlaw
• CoA decided it was unlawful for a
tribunal to discharge from MHA detention
into effectively what amounted to
community detention
• it was not true “discharge” from
detention

@BJhealthlaw
• considered this issue again of conditional
discharge to circumstances that may
constitute a DoL where P lacks capacity
• decision approves the use of
authorisation under MCA 2005 with DoLS
running alongside conditional discharge

@BJhealthlaw
KC was a restricted patient who lacked
capacity to make decisions on residence and
care. Tribunal made provisional decision to
discharge subject to the following conditions

@BJhealthlaw
1. residence at placement, not to leave
premises unsupervised by staff
2. comply with care plan & supervision
3. accept psychiatric & social supervision
4. refrain from drinking alcohol & submit
to testing

@BJhealthlaw
• all agreed this amounted to a DoL
• placement was not a care home or
hospital and so would require
authorisation of the Court of Protection
• main issue for Charles J to consider was
whether it is lawful for a First Tier
Tribunal (FTT) to discharge P in such
circumstances

@BJhealthlaw
• now possible for a person to be given a
conditional discharge from MHA detention
if the conditions of that discharge amount
to an objective DoL, so long as it is
possible for that DoL to be authorised
under Schedule 1A to the MCA

@BJhealthlaw
• that is, if P lacks capacity the DoL under
the CD will be lawful if authorised under
the DoLS regime or by the Court of
Protection

@BJhealthlaw
• on a practical level, where a Tribunal is
satisfied that P could be granted a CD,
the norm will be to adjourn for the DoLS
assessment to take place, so that the
Tribunal can be sure the DoL will in fact
be authorised and will operate as soon as
the CD takes effect

@BJhealthlaw
• decision also contains remarks (expressly
obiter so persuasive rather than binding)
suggesting that a patient with capacity
might be able to consent to discharge to
such conditions, and referring to the
apparent unfairness to that group
compared to those lacking capacity

@BJhealthlaw
• tribunals likely to seek reassurance in
such cases that the consent is ‘real’
rather than any pressure for example
being placed on P

@BJhealthlaw
• important decision - limits the damage of
RB
• in these types of cases - MHA and MCA
can work in parallel achieving different
purposes

@BJhealthlaw
• controversy likely to continue re
capacitous restricted patients however as
Charles’ obiter comments conflict with
the decision in ‘R (G) v MHRT [2004]
EWHC 2193’

@BJhealthlaw
• considers the responsibility of NHS bodies
to provide s.49 MCA reports at no cost to
the parties & impact on NHS resources
• CoP declined to vary or alter the
principle behind an order requiring an
NHS Trust to provide a report under s.49
MCA

@BJhealthlaw
• judge acknowledged the order placed a
burden on the limited resources of the
Trust

@BJhealthlaw
• B opposes it in strongest terms
• will need sedation to overcome
resistance, inc post op (and rehab – for
rest of life - needs co-operation)
• surgery can’t return him to former life,
or living independently

@BJhealthlaw
• “the loss of his foot will be a continual
reminder that his wishes were not
respected…”

“I am quite sure that it would not be in Mr B’s best interests to
take away his little remaining independence and dignity to
replace it with a future for which he understandably has no
appetite and which can only be achieved after a traumatic and
uncertain struggle that he and no one else would have to
endure…

…There is a difference between fighting on someone’s behalf and
just fighting them. Enforcing treatment in this case would surely
be the latter”

@BJhealthlaw
• reflects guidance set out by the Supreme
Court in Aintree v James (2013)
“…decision makers must look at his welfare
in the widest sense, not just medical but
social and psychological”
Lady Hale

“in the end, if M remains confined in a home she is entitled to
ask “what for”? The only answer that could be provided at the
moment is “to keep you alive as long as possible”. In my view
that is not a sufficient answer…”

“There is little to be said for a solution that attempts without
any guarantee of success, to preserve for her a daily life without
meaning or happiness and which she… regards as unsupportable”

@BJhealthlaw
• Munby P, the President of the Court of
Protection, in reaction to the increased
case-load following on from Cheshire
West reviewed a number of DoL cases
together

@BJhealthlaw
• Attempted to devise ‘a standardised, and
so far as possible ‘streamlined’, process,
compatible with the requirements of
Article 5 ECHR, which will enable the
Court of Protection to deal with all DoL
cases in a timely but just and fair way’.

@BJhealthlaw
• new process came into effect on a pilot
basis on 17.11.14.
• followed by a new Practice Direction &
CoP form COPDOL10

@BJhealthlaw
Court decide applications for a court-
authorised DoL on the papers only, without
holding a hearing, provided certain
safeguards are met namely that the person
who is the subject of the application and all
relevant people in their life are consulted
about the application and have an
opportunity to express their wishes and
views to the court and do not object.

@BJhealthlaw
Court will analyse the care plan, to ensure
that it is in P’s best interests, is the least
restrictive option available and the
deprivation is necessary and proportionate.

@BJhealthlaw
Applicant must set out the circumstances
fully and frankly. Mumby considered no need
for P to be a party: the evidence from the
applicant is the only evidence that the court
receives.

@BJhealthlaw
• stated Mumby had stepped outside
Court’s remit, that his conclusions could
not be considered as authoritative & that
his conclusions were flawed:
• fundamental principles of domestic law &
relevant requirements of ECHR demand
that P be a party to such cases

@BJhealthlaw
“it is generally considered indispensable in this country for the
person whose liberty is at stake automatically to be a party to
the proceedings in which the issue is to be decided. The
President’s conclusion that it was unnecessary for this to be so in
relation to an adult without capacity appears therefore to run
counter to normal domestic practice….I can accept that, in
theory, P need not always be a party…if his participation…..can
be reliably secured by other means”

ADASS
figures
COP
applications
2015/16 31,500
2014/15 28,500
2013/14 212

@BJhealthlaw
This Charles J judgment is the latest in the
‘Re-x saga’…

@BJhealthlaw
• streamlined Re-X procedure should be re-
introduced
• family members should be trusted to
advocate in P’s best interests and in most
cases will be no need to join P as a party
• gives further guidance re details that
should be included in the forms

@BJhealthlaw
Judgment something of a policy decision and
directly contradicts the Court of Appeal’s
earlier decision…
unlikely to be the end of the matter

@BJhealthlaw
KEEP
CALM
AND
CARRY
ON

@BJhealthlaw
• published 7 July - open for consultation
to 2 November 2015
• draft legislation by end of 2016 – unlikely
to be in force until 2017/18
• will not redefine DOL, or remove
obligation for a process for authorisation

@BJhealthlaw
• in fact – aims to extend protection to
those with restrictive care, approaching a
DOL…
• the saga continues…

@BJhealthlaw
• DOL is far more widespread than
previously recognised
• not necessarily a bad thing – but needs
scrutiny / authority – or will be unlawful
DOL

@BJhealthlaw
• expect busy times – and huge resource
implications and potential liabilities
• need careful review of existing cases,
training and support
• in the rush to protect rights and
safeguard the most vulnerable, don’t
forget ‘empowerment’

@BJhealthlaw
Please get in touch if you have any questions
or wish to discuss the topics we’ve covered
further…
rebecca.fitzpatrick@brownejacobson.com|01613008050

Mental Capacity Act, DoLS and the Mental Health Act case law update - Rebecca Fitzpatrick - October 2015

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Mental Capacity Act, DoLS and the Mental Health Act case law update - Rebecca Fitzpatrick - October 2015