England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION
SITTING AT BRIGHTON

		30/08/2016

HHJ Farquhar :

1. The Issue.
2. There is total agreement between the parties in relation to all of the substantive issues in this matter. That is to say it is agreed that KD should remain in her current care home and be subject to the same drug regime that is currently applied under the present Standard Authorisation. The sole remaining issue is as to whether the desired goal can be achieved under the Mental Capacity Act 2005 or whether KD is a "Person Ineligible to be Deprived of her Liberty by this Act" as defined by Schedule 1A of the Act.
3. The Local Authority submit that KD is eligible within the Act and that a Standard Authorisation is the least restrictive approach to ensure that her Best Interests are met. It is argued on behalf of the Official Solicitor that KD is ineligible pursuant to Schedule 1A and consequently it is irrelevant as to whether the balancing exercise would fall in favour of approaching this matter under the Mental Capacity Act 2005 as opposed to the Mental Health Act 2003.

Factual Background

4. KD is an 80-year-old lady who has been widowed since the late 90s. She has two adult stepsons who have knowledge of these proceedings and have made their views known but are not parties. KD lived in her own property up until December 2012 when she was admitted to hospital for a period of three months pursuant to section 3 Mental Health Act 2003. She was then back at home from February 2013 to July 2013 before a further five months in hospital following a further section 3 admission. There was then a 10 month period between December 2013 and October 2014 at Wayland House which was initially on section 17 Mental Health Act 2003 leave. KD was able to go home in October 2014 but unfortunately that only lasted for two weeks as there was a further section 3 admission in November 2014 which continued until 26^th of June 2015. At that point she was admitted to LH a care home and again this was initially on section 17 leave.
5. KD has a long history of severe mental illness by way of schizophrenia. There are many occasions upon which she did not take the appropriate drugs and she has been resistant to taking those drugs on many occasions. It was partly this that caused the frequent admissions to hospital in the last few years. Further to the diagnosis of schizophrenia she is also now suffering from frontal lobe dementia which has deteriorated over the last five years.
6. KD has made it clear that she wishes to return to her own property. As a result of that the Local Authority made the application to the Court of Protection in December 2015. There have been a number of hearings since that date and I have already made certain orders. This includes a declaration that KD lacks capacity to decide where she should reside, whether she could conduct these proceedings, and whether she can consent to her treatment or care package. The issue of capacity does not need to be reconsidered at this hearing.
7. A further order was made on 23 June 2016 that it was not in the best interests of KD to return to live at her former home. The issues that remain to be decided are therefore narrow. They are as follows:

a) whether a placement at LH was in KD's best interests or should a move to an alternative care home nearer to her home be attempted;

b) whether the treatment of KD's mental health meant that she was ineligible for a standard authorisation pursuant to Schedule 1 A Mental Capacity Act 2005;

c) whether the treatment regime which would include use of covert medication was in KD's best interests.

8. The parties were able to agree the first and third matters listed above and the reality is that the vast majority of this hearing has covered the second issue that is to say whether or not KD is eligible for a standard authorisation. However, it is important for me to consider the other issues and I shall deal with those first. The main issue to be decided is a purely legal issue and as a result it was agreed between the parties that there was no requirement for there to be any oral evidence.

Medical Evidence

9. There are two very detailed medical reports from Dr Peter Jefferys dated 17 February 2016 and an addendum report on 11 July 2016. There are also short reports from Dr C the local Associate Specialist in Older Persons Mental Health in the form of emails dating from 21 June 2016 to 29 June 2016. As Dr C states the report of Dr Jefferys is extremely thorough and detailed and he has the expertise in providing court reports so there is no sense in reinventing the wheel. I agree entirely with that sentiment, the reports received from Dr Jefferys are extremely impressive and he has formidable experience in this field. It is as a result of his disquiet in the drug regime and the basis upon which it is provided involved in this case that the Official Solicitor takes the stance that he does in this matter.

Dr Jefferys 17 February 2016

10. There is no need within this judgement to set out many areas of the reports as declarations have already been made in relation to the capacity of KD to conduct these proceedings and also to decide upon her residence. Dr Jefferys details KD's mental health history which apparently commenced in the 1970s when she was treated with antipsychotic medication. It would appear that this medicine produced tremor of the hands as a result of which there has been a change in medication. There was a relapse in December 2012 when KD presented with serious paranoid symptoms associated with marked self-neglect. This was probably due to a cessation of her medication which she refused to take as recommended by her psychiatrist. KD has never been completely free of paranoid psychotic symptoms since that time. There are recurrent episodes of distressed and agitated behaviour often with bizarre delusional utterances with religious sexual or paranoid content. Her consistent primary mental health diagnosis has been schizophrenia.
11. The medication was amended in December 2014 to Clozapine, an antipsychotic medication licensed for treatment resistant schizophrenia and she has remained on this since then. This requires regular blood monitoring due to a side-effect risk of bone marrow suppression. It is noted that KD has rarely complied with oral medication during periods when she lived at home since 2013. In hospital whilst under s.3 Mental Health Act 2003 she required a Certificate for her antipsychotic medication which is a requirement of s.58 of the Mental Health Act 2003 , as she was non-compliant and deemed to lack capacity. There has also been a diagnosis of a Parkinsonian syndrome over the last few years which is progressive. It is also the clear view of Dr Jefferys that KD has a slowly progressive dementia which is a new and distinct mental disorder from her schizophrenia.
12. The insight of KD in relation to her diagnosis of schizophrenia is extremely limited and she insists that she would not continue Clozapine if she was discharged home. It is noted by Dr Jefferys that although the provisions of s.58 Mental Health Act 2003 were complied with whilst she remained under s.3 MHA, as she was not subsequently placed on a Community Treatment Order (which would include the provision for independent review of treatment for non-consenting patients) the protection that had previously been afforded to KD by the Mental Health Act is not currently in place. It was further stated by Dr Jefferys that he had "no professional experience" (and his experience is clearly considerable) "of a case such as this, where a patient lacking capacity to consent to medication for mental disorder and requiring Clozapine (with its invasive requirement for regular blood tests) has been managed simply under the DOLS/MCA provision. It is therefore for others to consider the potential legal implications in her case".

Dr C June 2016

13. The short reports/emails from Dr C agreed with the view of Dr Jefferys in relation to KD's cognitive impairment. He was of the view that the present care home is able to manage her needs including her episodes of paranoid thoughts, mood swings and shouting. He added that she is compliant with her medication as well as the necessary blood tests involved. This care home is known for their expertise in managing patients with dual diagnoses and KD appears fairly settled there and not unhappy. It is most unsettling to change residence in patients with dementia and this would possibly lead to behavioural problems for KD. In a follow-up email dated 29^th of June 2016 he again confirms that KD is at present entirely compliant with taking the medication as well as the blood tests. The mechanism for review with respect to her schizophrenia would be twice yearly checks by an appointed care coordinator under the Later Life Assessment and Treatment service, the follow-up for her dementia would be to check on her within three months for compliance and potential side-effects and after that, if stable, she would be discharged to her GP. Dr C confirms that KD has been declared to lack capacity and cannot refuse to take her medication. "If it becomes physically difficult to administer her medication", he adds "then it can be given covertly by the care home as per their protocol, and to homes registered to care for clients with mental health problems."
14. In considering the regime under which this medication is provided Dr C stated "if this became an issue in the future and her schizophrenia became uncontrolled I would imagine a situation where KD was assessed again under the Mental Health Act with a view to a Community Treatment Order being put in place." He then adds "Sandra and Nandani…. Can we appoint care coordinators for this patient at least until we know things are settled for the sake of the court/judge?"

Dr Jefferys 11 July 2016

15. An Addendum Report was sought from Dr Jefferys in order to answer two particular questions. The only one that relates to this judgement was purely on the issue as to whether or not the treatment for KD's schizophrenia by way of antipsychotic medication could be managed solely under the Mental Capacity Act 2005 rather than the Mental Health Act 1983 having considered the report of Dr C. In considering this issue Dr Jefferys set out a number of issues that required consideration.
16. KD's historic and recent attitude to mental health treatment :

persistent refusal to take antipsychotic medication whilst at home

KD's responsible clinician unable to issue Certificate of Consent for her treatment with antipsychotic medication during three successive admissions under section 3 MHA 2003.

KD's antipsychotic medication only continued whilst detained subject to assessment by a Second Opinion Appointed Doctor and issue of Certificate of Second Opinion

KD's repeated assertions that she would not take her antipsychotic medication if discharged to her property

KD is generally compliant with medication at the care home although staff defer timing until after her angry and uncooperative episodes, which usually occur daily, have passed

KD's persistent lack of insight into nature of her mental disorder and the importance for her health in complying with antipsychotic medication

17. Dr Jefferys then sets out his experience in this field, which can only be stated to be extensive and impressive, including involvement in a number of cases dealing with these issues. He also summarises the evidence of Dr C in similar vein to that which is set out above.
18. Balancing Exercise (MHA v MCA) Dr Jefferys points out that he has not previously come across a case similar to the circumstances of KD and he opines that there are four additional facts which apply to her case to which he gives particular weight:

clozapine, an antipsychotic drug, associated with a very serious risk to health (bone marrow suppression) with a licence that requires regular blood tests

KD has consistently said she does not need antipsychotic medication and discontinued it contrary to medical advice at every opportunity she has had since 2012

KD shows no insight into her need for antipsychotic medication

KD was protected by the provisions of s.58 MHA whilst she was detained under the Mental Health Act which meant that clozapine was only continued following an independent 2^nd opinion about its appropriateness having taken account of her views and capacity and the views of others. If KD had been discharged subject to a Community Treatment Order then she would still have been eligible for a further independent 2^nd opinion with respect to her medication.

19. Dr Jefferys took the view that little weight should be given to the opinion of Dr C as he was not a consultant and therefore probably had little experience as a Responsible Clinician under the Mental Health Act. He opined that Dr C's view that KD "cannot refuse to take her medication" and that it can "be given covertly by the care home as per their protocol" does not appear to be a considered response to the complex issue and could be said to reflect a cavalier approach to her human rights as well as mental health legislation. He was also critical that Dr C appeared to invite 2 different mental health teams to get involved with KD without any serious expectation that their commitment will be long-term. Finally he took the view that the words quoted above that "at least until we know things are settled for the sake of the court/judge" could be interpreted as a cynical proposal.
20. I agree with the views of Dr Jefferys in this regard in relation to both the approach of covert medication (which has now been dealt with by agreement) and also as to the troublesome use of the words "for the sake of the court/judge". I have not heard any oral evidence from Dr C and therefore no further explanation has been provided for that statement but it does seem at best to be a glib response to a serious issue.
21. The final part of Dr Jefferys report in this regard, somewhat unusually, is to opine in relation to the skeleton argument that was produced on behalf of the Local authority. This relates to the consideration of which is the "least restrictive option" and whether or not there would be a stigma attached to KD if she was subject to the Mental Health Act regime. Dr Jefferys took the view that he was not arguing for KD to require detention in hospital and in broad terms it is less restrictive for her that she resides in a care home but that the imposition of clozapine medication, contrary to her wishes, in the context of repeated dissent to antipsychotic medication in the past, is also a form of restriction and she does not currently enjoy the protections afforded other patients in a similar situation subject to a Community Treatment Order. As regards stigma he took the view that it had little or no current relevance to KD as she has been detained previously for prolonged periods and her only visitors have never raised concerns about any possible adverse impact upon her by applying the Mental Health Act regime, indeed they were supportive of such admissions in the past.
22. As a result of all of these considerations he concluded that his concerns persist in relation to whether antipsychotic medication should be provided under the auspices of the Mental Capacity Act as opposed to the Mental Health Act. He concluded with the words "I am not persuaded by the submissions made on behalf of the Local Authority in their skeleton argument. In my opinion the possibility of ineligibility remains a live one which the Court will need to consider and reach a determination on following a balancing exercise".
23. The response to the three issues that are set out at paragraph 7 above are as follows – dealing with the two non-contentious issues first.

Alternative Care Home

24. The care home in which KD presently resides is some distance from her own property. As a result of that there was consideration as to whether or not it would be in her best interests to move to a care home that was nearer to her former address. However the Local Authority have stated that there are no other care homes that are available which would be any closer to the area in which she used to live. As a result, it is said that there is no option for the Court to consider an alternative care home. The Official Solicitor queries whether or not the Local Authority have done all that they could in order to find any alternative placements. It is said that the search has been somewhat "mechanistic". It would be fair to say that I have some sympathy with the view put forward by the Official Solicitor.
25. However, as a result of the agreed medical evidence it appears that it is not in the best interests of KD to move from her present care home. The view of Dr C is that the present care home has particular "expertise in managing patients with dual diagnoses" and that "it would not be in KD's best interests to move her as it is most unsettling to change residence in patients with dementia and would possibly lead to behavioural problems. There are few if any care homes capable of dealing with both her dementia and schizophrenia adequately". It is also the view of KD's stepsons as well as Mr Griffiths, Senior Social Worker that the current placement best meets KD's needs. This is a view that is also shared by Dr Jefferys who states that "it is my opinion that it is in KD's best interests to reside at her current placement and for her to be provided there with appropriate mental health specialist monitoring".
26. The parties are therefore in agreement that KD should continue to reside in her present care home. However, just because the parties are in agreement does not mean that the court should act as a rubberstamp. It is still for me to give due consideration to what is in KD's best interests pursuant to s.4 Mental Capacity Act 2005. When one weighs up all of the evidence and applies that to the test that is required within the Act then it is clear that the present placement not only is meeting all of the needs of KD but is also the best placement to meet those needs. I do not intend to set out all of the circumstances that are relevant to this decision as it would simply be repeating the views of others that is already set out. I therefore order accordingly.

Covert Medication

27. As is set out above, there are occasions when the staff at the care home decide not to administer the medication during periods of outbursts by KD but await for her to calm down and then provide such medication as is required. There was also a suggestion which was made clear within the report of Dr C that it may be appropriate to provide this medication covertly. The Official Solicitor was, not unreasonably, most concerned at such a suggestion.
28. I have been provided with the helpful decision of District Judge Bellamy in the case of AG v BMBC and SNH [2016] EWCOP 37 which dealt with the issue of covert medication. It has now been agreed that the approach set out within that case is one that would be applied for KD. That is to say that there would be no covert medication provided until after a best interest meeting had been held which would include medical professionals and many other points set out within paragraph 43 of that judgment. This is clearly the correct approach and one which this court endorses and bearing in mind the agreement that has been reached on this issue I need say no more on the point.

Is KD Ineligible to be Deprived of her Liberty?

29. This is the main issue in this case and as such it is necessary to deal with it in much more detail than the other points that have already been considered.

The Legal Framework

30. In order to understand the issues that have been raised within this case it is necessary to consider the labyrinthine statutory framework that has been created to cover this type of issue.
31. The starting point is s.4A Mental Capacity Act:

" (1) This Act does not authorise any person to deprive any other person of his liberty…

(3) D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.

(4) A relevant decision of the court is a decision made by an order under section 16 (2) (a) in relation to a matter concerning P's personal welfare."

32. It is then set out in section 16 A that:

"(1) If a person is ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty."

(4) For the purposes of this section

(a) Schedule 1 A applies for determining whether or not P is ineligible to be deprived of liberty by this Act;

(b) 'welfare order' means an order under section 16 (2) (a)."

33. The relevant Schedule is as stated Schedule 1 A which is entitled "Persons Ineligible to be Deprived of Liberty by this Act". Paragraph 2 sets out 5 cases in which a person is ineligible to be deprived of their liberty. It is accepted by all parties in this case that the relevant case is Case E. In order to fall within Case E the status of P must be:

"(a) within the scope of the Mental Health Act, but

(b) not subject to any of the mental health regimes".

It is also a requirement that the conditions in paragraph 5 of Schedule 1 A are met.

34. In order to consider whether P falls within the scope of the Mental Health Act as required within Case E it is necessary to look at paragraph 12 of Schedule 1 A which reads as follows:

"(1) P is within the scope of the Mental Health Act if –

(a) an application in respect of P could be made under section 2 or 3 of the Mental Health Act, and

(b) P could be detained in a hospital in pursuance of such an application, were one made.

(2) The following provisions of this paragraph apply when determining whether an application in respect of P could be made under section 2 or 3 of the Mental Health Act.

(3) If the grounds in section 2 (2) of the Mental Health Act are met in P's case, it is to be assumed that the recommendations referred to in section 2 (3) of that Act have been given.

(4) If the grounds in section 3 (2) of the Mental Health Act are met in P's case, it is to be assumed that the recommendations referred to in section 3 (3) of that Act has been given.

(5) In determining whether the ground in section 3 (2) (c) of the Mental Health Act is met in P's case, it is to be assumed that the treatment referred to in section 3 (2) (c) cannot be provided under this Act."

35. The relevant provision of the Mental Health Act 1983 section 3 is as follows. Section 3 (2) states that:

An application for admission for treatment may be made in respect of a patient on the grounds that –

(a) He is suffering from [mental disorder] of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

(b) […]

(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section ; and

(d) appropriate medical treatment is available for him.

Section 3 (3) states that:

Subsection (3) An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include –

(a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and [(d)] of that sub-section; and

(b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph 9c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate.

36. Further, if it is held that KD does fall within Case E then the conditions set out within paragraph 5 of Schedule 1 A must be met. The relevant parts of paragraph 5 are:

(2) P is ineligible if the following conditions are met.

(3) The first condition is that the relevant instrument authorises P to be a mental health patient.

(4) The 2^nd condition is that P objects –

(a) to being a mental health patient, or

(b) to being given some or all of the mental health treatment.

(5) The 3^rd condition is that a donee or deputy has not made a valid decision to consent to each matter to which P objects.

(6) In determining whether or not P objects to something, regard must be had to all the circumstances (so far as they are reasonably ascertainable), including the following –

(a) P's behaviour;

(b) P's wishes and feelings;

(c) P's views, beliefs and values.

(7) But regard is to be had to circumstances from the past only so far as it is still appropriate to have regard to them."

37. It follows from the above that in order to be ineligible to be deprived of her liberty it must be held that KD is within the scope of the Mental Health Act as defined but not subject to any of the mental health regimes and also that the conditions (or possibly some of the conditions) set out within paragraph 5 of Schedule 1 A are met.

The Competing Submissions

38. It is argued on behalf of the Official Solicitor that KD is indeed ineligible to be deprived of her liberty. It is submitted that the reports of both Dr C and Dr Jefferys makes it clear that she falls "within the scope of the Mental Health Act 1983" as is required to fall within Case E.
39. The Official Solicitor then argues that it is not necessary for all of the conditions set out within paragraph 5 Schedule 1 A need to be met. This is on the basis that it is accepted that the first condition is not met. That condition states that "the relevant instrument authorises P to be a mental health patient" and the 'relevant instrument' is defined in paragraph 14 of the Schedule as meaning the standard authorisation. It is accepted that the standard authorisation does not authorise KD to be a mental health patient and therefore this condition is not met. However it is the case of the Official Solicitor that paragraph 5 does not require all of the conditions to be met and it is argued that the 2^nd and 3^rd conditions are met and consequently KD would not be eligible to be deprived of her liberty.
40. The Local Authority argue that KD does not fall "within the scope of the Mental Health Act" and also that if she did then it is a requirement of ineligibility for all 3 conditions set out within paragraph 5 to be met. It is further argued that if the decision-maker has the choice of the regime set out within the Mental Capacity Act 2005 and the Mental Health Act 2003 then it is appropriate to make the decision which would be the least restrictive for P and in this case that would be achieved through DOLS. In support of this submission reference is made to AM v (1) South London & Maudsley NHS Foundation Trust and (2) The Secretary of State for Health [2013] UKUP 0365 (AAC), a decision of Charles J sitting in the Upper Tribunal Administrative Appeals Chamber.

Analysis

Is KD "within the scope of the Mental Health Act"?

41. The argument of the Official Solicitor is that paragraph 12 (1) states that P is within the scope if an application 'could' be made under section 2 or 3 of the Mental Health Act. It is accepted by both Dr Jefferys and Dr C that it is not in KD's best interests to be admitted to hospital and as such it is not the argument of the Official Solicitor that she 'should' be admitted.
42. Although this applies to both section 2 and section 3 it is presumed that the relevant provision is that within section 3 of the Mental Health Act. In order for an order under section 3 of the Mental Health Act to be made it must be shown that KD is suffering from a mental disorder of a nature or degree which makes it appropriate for her to receive medical treatment in a hospital (s.3(2) MHA). In considering the test it is assumed that the recommendations of 2 registered medical practitioners as required by s.3(3) have been given. However this still requires it to be shown that it is appropriate for KD to receive medical treatment in a hospital and it cannot be provided unless she is detained under this section.
43. It was specifically set out within Dr Jeffery's addendum report at paragraph 15 that he was not arguing that KD currently needs detention in hospital for treatment. This is also the view of Dr C. Further pursuant to s.3(2)(c) MHA it is difficult to see how it is "necessary for the health or safety of the patient" and that it "cannot be provided unless she is detained under this section" as it is presently being provided and she is clearly not so detained. The method of provision is clearly an important consideration but that is dealt with in relation to the agreement that a Best Interests decision would need to be made in relation to any covert medication to be provided.
44. It follows that I am not satisfied that KD falls within the scope of the Mental Health Act as required by Case E of Schedule 1 A of the Mental Capacity Act 2005 and as such she is not ineligible to be deprived of her liberty by that Act.

Is it necessary to meet all the conditions within paragraph 5 Schedule 1A?

45. If, in fact, KD is within the scope of the Mental Health Act then I would have to further consider whether it is necessary for her to meet all of the conditions set out within paragraph 5 of Schedule 1 A or whether it is sufficient that she meets only 2 of those conditions. It is accepted by the Official Solicitor that the first condition is not met. However, it is submitted that the second and third conditions are met and that this is sufficient for paragraph 5. It is not necessary to make findings in relation to the second and third conditions for the purposes of this judgment.
46. The Local Authority, not surprisingly, rely upon the wording of paragraph 5 (2) Schedule 1 A which refers to; 'if the following conditions are met' (my emphasis). It is argued that such wording does not allow for a disjunctive approach to be taken in relation to the 3 conditions set out.
47. The argument on behalf of the Official Solicitor is that Case E is not limited only to those cases where hospital treatment is required and that will be the effect of construing paragraph 5 as requiring all conditions to be met. This is on the basis that Cases A and B concerned patients that are subject to hospital treatment, Case C is concerned with patients in the community treatment regime and Case D is concerned with those subject to the guardianship regime. However that flies in the face of the precise definition of what is defined as within the scope of the Mental Health Act set out within paragraph 12 and that is not limited to actual hospital treatment cases but simply those that could be pursuant to such a regime.
48. The other argument is that paragraph 2 (b) Schedule 1 A refers to 'the provision, or one of the provisions, referred to in that entry' which is the entry that refers to paragraph 5. It is submitted in such circumstances that not all of the provisions in paragraph 5 need to be satisfied.
49. I am not satisfied that either of these arguments is of sufficient weight to counter the very clear wording of paragraph 5 (2) which refers to 'conditions are met'. Those words are unambiguous and do not warrant being construed in any way other than the very natural meaning that is provided. It would have been a very simple exercise to add the words "or at least one of the conditions are met". That was not done and I must assume that that was for a reason and as such I am satisfied that all 3 conditions must be met in order for KD to be ineligible to be deprived of her liberty. Further, it would make no sense if the court was able to decide that someone was ineligible simply upon the basis that the 3^rd condition was met. That relates to whether a donee or deputy has not made a valid decision to consent to each matter to which P objects. If that condition was to stand on its own it could refer to any issue whatsoever and can only be sensibly construed when considered alongside the other two conditions.
50. It follows that I am satisfied that KD is not ineligible to be deprived of her liberty and as such the court has jurisdiction as set out within section 16 A Mental Capacity Act 2005. The question remains as to whether or not it is appropriate to make such an order.

Is the DOLS that is sought appropriate and in KD's Best Interests?

51. As Charles J made clear in the case of AM v (1) South London & Maudsley NHS Foundation Trust and (2) The Secretary of State for Health [2013] UKUP 0365 (AAC) there will be cases where the decision-maker has to consider the interface of the Mental Health Act and the Mental Capacity Act, when both regimes are available in relation to the same patient. The practical difficulty facing any tribunal (in the wider sense) dealing with such an issue is that the vast majority of tribunals will only have jurisdiction over one of the regimes. That is to say the tribunal in the case set out above could only deal with the Mental Health Act jurisdiction and any Court of Protection judge only has jurisdiction within the Mental Capacity Act.
52. In making decisions in such cases Charles J made certain observations :

a) In considering the 'necessity test' under the MHA there is the proportionality test and any interference with a Convention Right has to be the least restrictive required to meet the objective.

b) There is no primacy of MHA over MCA

c) A DOLS is not necessarily less restrictive than an order under the MHA (although in many cases it might well be).

d) Each case will be fact sensitive.

53. In considering KD's Best Interests in this case the following points must be relevant;

•    KD's stated wish to return home – but all of the professionals and relatives agree that it is in her best interests to remain at LH

•    Agreement that it would not be in KD's interest to be admitted to hospital

•    Agreement as to the steps to be taken if covert medication is to take place

•    The fact that no Community Treatment Order pursuant to the MHA is in place and this Court could have no control over such an order being made

•    The fact that in the recent past KD's treatment has been successfully provided and there is no evidence that her behaviour has deteriorated

•    There must be a risk that if the DOLS was not in place then the only way that KD would receive any treatment would be under s.3 MHA by admission to hospital and that such a step would be clearly upsetting and difficult for KD. It could further have the effect of KD losing the option of returning to LH as there is no guarantee that her room could be 'reserved' for the indeterminate period that she would be detained under the MHA.

54. The point made by Dr Jeffery's that the provision of Clozapine without the safeguards provided within the MHA is also a restriction of liberty is certainly a good one. However, it is merely one of the points that must be put in the balancing exercise and cannot, of itself, be decisive.
55. In weighing up the options, and in particular the difficulties that could be caused to KD if the MHA route was followed, I am satisfied that it is in her best interests for the standard authorisation to be renewed. There must be regular reviews in relation to the provision of Clozapine, bearing in mind all of the points raised by Dr Jeffery's, but when taken as a whole I am satisfied that this is the least restrictive option and most proportionate outcome for KD but would still meet the objective that is required.
56. There should be discussion between the parties as to the precise terms of any future standard authorisation and care plan before the same is submitted for approval.