Schedule 1A, again?
When a deprivation of liberty arises in an inpatient context, the law does not provide an immediately clear avenue for authorisation. Instead, the interface between the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA) presents a common source of confusion for healthcare commissioners and providers alike.
The recent judgment of Mrs Justice Theis in Manchester University Hospital NHS Foundation Trust v JS & Others (Schedule 1A Mental Capacity Act 2005)  heard on appeal, provides welcome clarification of the legal framework of Schedule 1A, which Mrs Justice Theis succinctly describes as one which "could have been expressed with more clarity." It also provides practical guidance for steps to be taken to resolve intractable disputes between MHA and MCA decision-makers.
The first instance hearing before Mr Justice Burrows concerned 17-year-old JS, an individual with complex mental health needs who had been detained in hospital, initially under section 136 MHA and then under section 2 MHA. When her section 2 detention expired, JS remained unlawfully detained in hospital due to there not being a safe alternative for her outside of the hospital setting. The Trust made an application to the Court of Protection to seek to authorise JS’ deprivation of liberty at hospital under the MCA.
Mr Justice Burrows concluded that JS was ineligible to be deprived of her liberty under the MCA and that she properly fell within the scope of MCA Schedule 1A, under Case E. The Trust appealed the decision.
Schedule 1A explains various 'cases' in which a person would be ineligible to be deprived of their liberty by the MCA. Case E then attempts to differentiate situations where a person is within the scope of the MHA but is not subject to any of the mental health regimes: if the relevant conditions are met, then a person is not eligible to be deprived of their liberty by the MCA.
In the judgment, Mrs Justice Theis draws out an alternative restatement of Case E which is both more intuitive and logical – for practitioners and judges alike.
The key questions to be considered are:
- Is P a ‘mental health patient’?
- Is P an ‘objecting’ mental health patient?
- Could P be detained under s.3 MHA 1983?
If all the above questions are all answered in the affirmative, then P is ineligible to be deprived of their liberty under the MCA and instead falls within the remit of the MHA.
The final question – whether P 'could' be detained – remained a source of dispute in this case. On appeal, the Trust proposed a hierarchical division between the MCA and MHA decision-makers: the MHA decision-maker has primacy, and the MCA decision-maker only interferes if the decision is not logical or rational.
Mrs Justice Theis rejected this approach and instead approved the interpretation in GJ v The Foundation Trust  EWHC 2972 (Fam), in which Justice Charles analysed Schedule 1A in detail.
In summary, the Judge approved the “what the decision maker thinks” test: the decision-maker should ask themselves whether, in their view, the criteria or grounds in section 2 or section 3 of the MHA are met, and if an application were made under them, whether a hospital would detain P.
Mrs Justice Theis concludes by saying she could “see the sense in the suggestion of an application to the Court of Protection for a determination being a possible route to resolve these issues, but that is not said with any encouragement for such applications to be made unless it is necessary, and only after all other options have been explored. It will be a matter for each individual judge whether such an application is accepted, depending on the particular circumstances of the case.”
While Mrs Justice Theis’ clarification of the framework of Schedule 1A is welcomed, it is easy to see how Case E situations can become contentious when parties have differing views over whether s.2 or s.3 MHA properly applies.
It follows that the invitation for MHA and MCA decision-makers to arrange discussions between relevant professionals in ‘the spirit of cooperation and appropriate urgency’ is a welcome practical addition “for those who have to navigate these choppy waters within a legal framework that could have been expressed with more clarity”. It serves as a reminder that consultation in respect of evidence and discussions as to clinical views should be a first port of call to diffuse potential ‘stalemate’ situations.
A note on 16 – 17-year-olds
Mrs Justice Theis notes that the Court has experienced a recent influx of applications to authorise the arrangements amounting to a deprivation of liberty of young people (16- and 17-year-olds) . This is also against the sustained backdrop of a lack of secure children’s homes. Re T (A Child) (Appellant)  UKSC 35 confirms that an application under the High Court’s inherent jurisdiction to authorise the deprivation of liberty for children (including those aged 16 – 17) at alternative restrictive placements other than an approved secure children’s home can be used, although the Court expressed grave concern about its use to fill a gap in the system caused by inadequate resources.
The Court of Protection may have concurrent jurisdiction for those who lack capacity for those on the cusp of legal adulthood (the MCA applies to those over the age of 16). Mrs Justice Theis provides specific guidance to navigate potential Case E scenarios for such young people:
- The applicant should carefully consider whether or not the application should be brought in the Court of Protection; and if not, explain why not.
- If a Schedule 1A Case E scenario appears likely to arise, the evidence filed in support should address that issue to reduce delay.
- If the Court considers P is ineligible to be deprived of their liberty pursuant to Schedule 1A of the MCA, the professionals should urgently liaise (as is the guidance in any other scenario).
The interface between the MCA and the MHA is difficult area. Do get contact Leah Selkirk if you’d like to discuss any of the issues raised here.
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