More clarity from the High Court on the interplay between the Mental Health Act and the Mental Capacity Act regarding DoLS and patients in the community

Last month Mrs Justice Lieven in the Court of Protection dealt with conjoined applications by two local authorities under the Mental Capacity Act 2005 for court approval of the continuation of the authorisation of care plans involving SR and JTA.

The case of SR 

SR had been detained in a psychiatric hospital pursuant to section 37/41 of the Mental Health Act 1983 under a restriction order. His detention under the MHA was as a consequence of him having been convicted of sexual offences perpetrated upon his elderly mother, carried out under the influence of alcohol. It was proposed that he be discharged from hospital detention into the community under one to one supervision to prevent him from both consuming alcohol and to prevent his risk of reoffending. SR was happy with this.

He had a diagnosis of mild learning difficulties and autism spectrum disorder. While in hospital he had engaged in a number of programmes and therapeutic interventions and was assessed by his MDT as being fit for discharge. He was assessed as lacking capacity to consent to the care, treatment and support he needed to live in the community as he had a distorted and egocentric perception of the world. His responsible clinician was of the view that SR did not require ongoing hospital management and that he could be adequately managed in a robustly supported community placement.

The First Tier Tribunal were required to approve and authorise SR’s conditional discharge under the MHA. Given the Supreme Court decision in Secretary of State for Justice v MM the FTT was not prepared to consider the conditional discharge until the COP had authorised SR’s deprivation of liberty in the community.

The case of JTA

He was a 62-year-old with lifelong learning disabilities, communication difficulties and bi-polar disorder. He had had periods of admission into psychiatric units since 1967. JTA’s index offence was in 1994 when he was convicted of sexual assault on a female and he had spent 10 years in a psychiatric hospital.

He had been conditionally discharged from hospital by the FTT with the following conditions:

  1. That he reside at a named staffed accommodation; and
  2. That he shall not be permitted to leave his accommodation unless accompanied and supervised at all times.

The COP had already authorised JTA’s residence and care plan containing the conditions referred to above which Lieven stated undoubtedly amounted to a deprivation of his liberty in the community and that, in light of MM, were unlawful.

JTA did not have capacity to make decisions about his care package, where he lived and his liberty or otherwise.

The issue for the court  

In respect of these conjoined cases the issue for the court was the interrelationship between the MHA, in particular the power to conditionally discharge a patient, and the powers under the MCA. 

The consequence of the Supreme Court ruling in MM was that a restricted patient found to be eligible for discharge under section 72 and section 73 could not be made subject to a conditional discharge which contained conditions that amounted to a deprivation of their liberty in the community because the MHA did not permit it.

However, the COP held that where it was being asked to make best interests decisions under the MCA, as in these cases, for incapacitated individuals who could not make those decisions for themselves there was nothing in MM, or the MCA in light of MM, that would prevent the COP from authorising a deprivation of liberty for SR and JTA.

The Supreme Court in MM was clear that they were not considering deprivation of liberty powers under the MCA. The COP could make declarations and orders concerning best interests, including deprivation of liberty, in advance of any discharge under the MHA. Equally, there was nothing in schedule 1A of the MCA which would prevent the court from authorising the deprivation of liberty of a conditionally discharged patient, whether or not that discharge had been deferred (see Mrs Justice Lieven’s conclusions at paragraph 39 – 45 of her judgment).

A related matter

Mills & Reeve were recently involved in a case in the COP in London which was dealt with by Mr Justice Hayden which involved an incapacitated adult patient detained under section 3 of the MHA who was made subject to a Community Treatment Order. It is not necessary to set out the details of the case here, but as a consequence of the proceedings Mr Justice Hayden gave permission to publish an extract from his court order as follows:

 “AND UPON the court being satisfied that neither the decision in Secretary of State for Justice v MM [2018] UKSC 60, nor that in Welsh Ministers v PJ [2018] UKSC 66, prevents the Court of Protection making an order under s.16 (2) (a) Mental Capacity Act 2015 authorising (by s.4A(3)) the deprivation of liberty in the community of an individual lacking the material decision – making capacity who is subject to a Community Treatment Order, so long as that Community Treatment Order does not contain conditions that on their face give rise to the confinement of the individual.”

We have a large team dealing with issues relating to the MCA and MHA on a daily basis. Please do not hesitate to contact us to discuss any queries. Also look out for our Liberty Protection Safeguards seminars this autumn.

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