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URL: http://www.bailii.org/uk/cases/UKUT/AAC/2011/327.html
Cite as: [2012] AACR 19, [2011] UKUT 327 (AAC)

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DN v Northumberland Tyne & Wear NHS Foundation Trust [2011] UKUT 327 (AAC) (16 August 2011)
Mental health
All

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

Save for the cover sheet, this decision may be made public (rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)). That sheet is not formally part of the decision and identifies Mr N by name.

As the decision of the First-tier Tribunal (made on 3 November 2010 under reference MP/2010/09457) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.

Reasons for Decision

A. the issue

1. The issue in this case concerns the relationship between the Mental Health Act 1983 and the Mental Capacity Act 2005, which I refer to as the MHA and the MCA respectively. Specifically, I have to decide whether arrangements that might be put in place under the MCA are relevant to the issues that the First-tier Tribunal had to decide under the MHA. I have not given a general answer to that question, but have decided that, in the circumstances of this case, the application of the MCA could be relevant to the issues that the First-tier Tribunal had to decide.

B. parties and representatives

2. The appellant, Mr N, is a patient detained by the Northumberland Tyne and Wear NHS Foundation Trust under section 3 of the MHA. Mr N has been represented by Ms Susanna Rickard of counsel. I am grateful to her for her arguments at the oral hearing of the application for permission to appeal. The Trust has not responded to the appeal, so there was nothing to which Mr N could reply. The Department of Health was not a party, but I am grateful to Mr Richard Rook, Head of Mental Health Act Policy at the Department, for his letter commenting on the relationship between the MHA and the MCA. I have set out the relevant passages at paragraph 18.

C. the case in the First-tier Tribunal

3. Mr N was born in 1963 and has been detained for some years. He applied to the First-tier Tribunal on 30 April 2010. Ms Rickard’s argument to the First-tier Tribunal was that Mr N should be conditionally discharged, with discharge deferred for arrangement to be put in place under the MCA. Mr N lacks the capacity to make decisions in respect of his residence and consumption of alcohol. Ms Rickard argued that he would benefit from of a deprivation of liberty procedure under the MCA. That would provide for him to be accompanied at all times in order to prevent him buying or acquiring alcohol. That in turn would have the effect that detention under the MHA was no longer appropriate or necessary, as it would provide an alternative means of protecting his safety and that of others from the consequences of his alcohol consumption.

4. The tribunal decided that Mr N should not be discharged. It found that he had alcohol dependency syndrome, which impairs his memory and executive functions. He has dementia related to subdural haemorrhage, epilepsy, Wernicke’s encephalopathy and intentional self-poisoning by alcohol. His judgment, planning, organisational ability and social skills are all affected. When not detained, he relapses into heavy alcohol consumption which exacerbates his cognitive deficits. He was receiving treatment in hospital to prevent the deterioration of his condition and symptoms. Accordingly, the tribunal decided that the criteria for detention remained satisfied. It further considered that this was not an appropriate case in which to exercise its discretionary power to discharge Mr N and refused to adjourn for further information about aftercare arrangements that might be available on discharge ‘as it had all necessary information before it to enable it to reach a properly informed decision regarding Mr N…’s continued detention.’

5. The tribunal dealt with appropriate treatment, but without specifically mentioning the MCA. It mentioned ‘less restrictive options’, but rejected these as ‘There was overwhelming evidence that when in the community, either as a detained patient or otherwise, it has not been possible to provide treatment to Mr N… safely and effectively. The three attempts during his admission to treat him outside of a hospital setting have failed …’

D. the legislation

6. There are powers to deprive a person of liberty under both the MHA and the MCA. The Acts deal with different subject matters, but in practice they cannot be kept distinct.

7. The MHA deals with persons who have a mental disorder as a result of which they need to be detained in hospital, or subject to recall to hospital, for treatment and in order to protect themselves or others. The governing criteria are exemplified by section 3:

3 Admission for treatment.

(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as “an application for admission for treatment”) made in accordance with this section.

(2) 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

…

(c) it is necessary for the health or safety of Mr N 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.

(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)]4 of that subsection; and

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

(4) In this Act, references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case.

8. The criteria are necessarily less stringent if a patient is admitted for assessment under section 2:

2 Admission for assessment.

(1) A patient may be admitted to a hospital and detained there for the period allowed by subsection (4) below in pursuance of an application (in this Act referred to as “an application for admission for assessment”) made in accordance with subsections (2) and (3) below.

(2) An application for admission for assessment 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 warrants the detention of Mr N in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

(b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

(3) An application for admission for assessment 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.

(4) Subject to the provisions of section 29(4) below, a patient admitted to hospital in pursuance of an application for admission for assessment may be detained for a period not exceeding 28 days beginning with the day on which he is admitted, but shall not be detained after the expiration of that period unless before it has expired he has become liable to be detained by virtue of a subsequent application, order or direction under the following provisions of this Act.

9. The Secretary of State has issued a Code of Practice under section 188 of the MHA, which sets out a number of guiding principles. Paragraph 1.3 contains the ‘least restriction principle’:

People taking action without a patient’s consent must attempt to keep to a minimum the restrictions they impose on Mr N’s liberty, having regard to the purpose for which the restrictions are imposed.

There are a number of more specific paragraphs that apply that principle to particular circumstances. Some of those paragraphs refer to the MCA. Paragraph 4.15 merits a mention. It is in a section that highlights the importance of seeking alternatives to detention:

This may be possible even if the provision of treatment [other than under the MHA] unavoidably involves depriving patients of their liberty. Deprivation of liberty for the purposes of care or treatment in a hospital or care home can be authorised in a person’s best interests under the deprivation of liberty safeguards in the MCA if the person is aged 18 or over.

Paragraph 4.22 is also important:

Otherwise, if the MCA can be used safely and effectively to assess or treat a patient, it is likely to be difficult to demonstrate that the criteria for detaining Mr N under the Mental Health Act are met.

10. I regard the least restriction principle and its numerous applications in the Code as inherent both in the stringent conditions that must be satisfied for continuing detention pursuant to the MHA and in Mr N’s Convention rights under the Human Rights Act 1998 to liberty and respect for home and family life pursuant to Articles 5 and 8. However, the Code itself, being merely guidance on the application of the MHA, is not relevant to the interpretation of the MCA.

11. The MCA deals with decision-making and capacity. Section 4A provides for authority to be given to deprive a person of liberty:

4A Restriction on deprivation of liberty

(1) This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty.

(2) But that is subject to–

(a) the following provisions of this section, and

(b) section 4B.

…

(5) D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).

12. Schedule A1 lays down a number of qualifications, one of which is the eligibility requirement (paragraph 12(1)(e)). Paragraph 12(3) provides for advance authorisation:

(3) In a case where–

(a) the question of whether a person meets a particular qualifying requirement arises in relation to the giving of a standard authorisation, and

(b) any circumstances relevant to determining that question are expected to change between the time when the determination is made and the time when the authorisation is expected to come into force,

those circumstances are to be taken into account as they are expected to be at the later time.

13. Paragraph 17 defines the eligibility requirement:

(1) The relevant person meets the eligibility requirement unless he is ineligible to be deprived of liberty by this Act.

(2) Schedule 1A applies for the purpose of determining whether or not P is ineligible to be deprived of liberty by this Act.

14. Paragraph 2 of Schedule 1A lays down the criteria for ineligibility:

Determining ineligibility

2 A person (“P”) is ineligible to be deprived of liberty by this Act (“ineligible”) if–

(a) P falls within one of the cases set out in the second column of the following table, and

(b) the corresponding entry in the third column of the table — or the provision, or one of the provisions, referred to in that entry — provides that he is ineligible.

	Status of P	Determination of ineligibility
Case A	P is- (a) subject to the hospital treatment regime, and (b) detained in a hospital under that regime.	P is ineligible
Case B	P is- (a) subject to the hospital treatment regime, but (b) not detained in hospital under that regime.	See paragraphs 3 and 4
Case C	P is subject to the community treatment regime	See paragraphs 3 and 4
Case D	P is subject to the guardianship regime	See paragraphs 3 and 5
Case E	P is- (a) within the scope of the Mental Health Act, but (b) not subject to any of the mental health regimes.	See paragraph 5

15. Paragraph 12 determines whether a person is within the scope of the MHA:

P within scope of Mental Health Act

12(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 have 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.

16. ‘Treatment’ is defined broadly by section 145 of the MHA:

(1) … “medical treatment” includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also sub section (4) below) …

(4) Any reference in this Act to medical treatment in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent worsening of, the disorder or one or more of its symptoms or manifestations.

17. For completeness, I mention paragraph 5, which only applies when a court makes a decision on the person’s behalf under section 16(2)(a) (‘the relevant instrument’ mentioned in paragraph 5(3)):

P objects to being a mental health patient etc

5(1) This paragraph applies in cases D and E in the table in paragraph 2.

(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 second 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 third 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;

(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.

E. the Department of health letter

18. Mr Rook wrote that the Department did not wish to become a party, but set Upper Tribunal its understanding of the relationship between the MHA and the MCA. His analysis is, naturally, a policy rather than a legal one, but it is valuable for explaining clearly how the MCA was intended to apply:

… in case it is of assistance to the Tribunal, the Department does have some general observations to make about the relationship between the two Acts, and in particular between the MHA and the so-called “deprivation of liberty safeguards” (MCA DOLS) in Schedule A1 of the MCA.

As the Tribunal is aware, the MCA DOLS provide a system whereby local authorities and primary care trusts may authorise a person’s deprivation of liberty in a care home or hospital (respectively) for care or treatment, where the person concerned lacks the capacity to make the relevant decision themselves.

As the Department understands it, there is no general rule that the MHA takes precedence over the MCA (or, indeed, vice versa).

In general, the possibility that a person’s needs for care and treatment could be met by relying on the MCA – with or without an authorisation under the MCA DOLS – relevant to decisions that have to be made under the MHA in the same way as all alternative possibilities.

Decision-makers under the MHA must, inevitably, consider what other options are available when deciding whether it is right for compulsory measures under the MHA to be used, or continue to be used. The use of the MCA (with or without an authorisation under MCA DOLS) may be one of those options.

All such alternative options must be considered on their merits. The fact that someone could be deprived of their liberty and given treatment under the MCA does not automatically mean that it is inappropriate to detain them under the MHA, any more than (say) the possibility that someone with capacity may consent to continuing treatment for their mental disorder automatically makes their continued detention under the MHA improper.

There are, however, specific circumstances in which the fact that someone is, or could be made, subject to compulsory measures under the MHA means that they cannot also be deprived of their liberty under the MCA.

Those circumstances are set out in the “eligibility requirement” in paragraph 17 of Schedule A1 to the MCA, the meaning of which is defined by Schedule 1A to the same Act. A person who is ineligible as determined in accordance with Schedule 1A cannot be deprived of their liberty under the MCA and therefore cannot be the subject of any authorisation under the MCA DOLS.

Schedule 1A sets out five cases in which a person is ineligible.

Case A is (in summary) where a person is currently detained in hospital under the MHA. That person cannot simultaneously be subject to an authorisation under the MCA depriving them of their liberty either in that hospital or anywhere else.

However, that is not to say that a person cannot (in effect) be discharged from one regime to the other. There is nothing to prevent a prospective application being made for an MCA DOLS authorisation in anticipation of, or the expectation that, the person concerned will be discharged from detention under the MHA. Paragraph 12(3) of Schedule A1 to the MCA says, in effect, that when deciding whether the qualifying requirements for an authorisation are met, it is the circumstances which are expected to apply at the time the authorisation is expected to come into effect which are to be considered.

The main effect of Cases B, C and D is that a person who is subject to compulsory measures under the MHA which fall short of actual detention cannot be deprived of their liberty under the MCA if that would conflict with a requirement imposed on them under the MHA. So, a person who is on leave of absence from detention in hospital under the MHA can, in general, be the subject of an MCA DOLS authorisation – but not if (for example) that authorisation envisages them living in one care home when it is a condition of their leave of absence that they live in a different care home.

Cases B and C also, in effect, prevent people being made the subject of a MCA DOLS authorisation detaining them in a hospital for the purpose of mental health treatment where the same could be achieved by recalling them to hospital from leave of absence, supervised community treatment or conditional discharge under the MHA (as the case may be).

Case E concerns people who are “within the scope” of the MHA, but not so far actually liable to be detained under it. In broad terms (and subject to certain caveats), it means that the MCA cannot be used to deprive someone of their liberty in a hospital for the purposes of mental health treatment if they are objecting to that course of action and they could instead be detained under the MHA.

It is important to note that case E only applies to detention in hospital, and only where the purpose of the proposed deprivation of liberty is treatment for mental disorder within the meaning of the MHA. It is not relevant to deprivation of liberty in other settings (eg care homes) or for other purposes (eg treatment for physical health problems, or for substance dependence by itself separately from treatment for mental disorder with the meaning of the MHA).

The Government’s policy intention was that people who lack capacity to consent to being admitted to hospital, but who are clearly objecting to it, should generally be treated like people who have capacity and are refusing to consent to mental health treatment. If it is considered necessary to detain them in hospital, and they would have been detained under the MHA if they had the capacity to refuse treatment, then as a matter of policy it was thought right that the MHA should be used in preference to the MCA.

It was specifically in the context of the interpretation of Case E that Mr Justice Charles talked in J about the MHA having “primacy”. Outside that context, the Department does not understand him to have been making a more general statement about the relationship between the two Acts. Indeed, as set out above, the Department does not think it would actually be possible to say, in general, which has primacy over the other.

F. J v The Foundation Trust [2010] fam 70

19. Ms Rickard fairly drew this case to my attention. It is a decision of Charles J in the Court of Protection, which contains an account of the relevant legislative background and a detailed analysis of the relevant sections. J had vascular dementia, Korsakoff’s syndrome, amnestic disease due to alcohol and diabetes. He was admitted to hospital for assessment under section 2 of the MHA and subsequently under section 3 for treatment. He was then discharged to a care home. Later he was returned to hospital, essentially in connection with his diabetes, and made the subject of a standard authorisation under the MCA. He challenged that authorisation, but Charles J rejected the application. The case is relevant because the judge undertook a detailed analysis of the relationship between the MHA and the MCA. He decided that the MHA had primacy:

45. In my judgment, the deeming provisions alone, and together with that view on assessments, are strong pointers in favour of the conclusions that (1) the Mental Health Act 1983 is to have primacy when it applies, and (2) the medical practitioners referred to in sections 2 and 3 of the 1983 Act cannot pick and choose between the two statutory regimes as they think fit having regard to general considerations (e g the preservation or promotion of a therapeutic relationship with P) that they consider render one regime preferable to the other.

I have quoted that paragraph, rather than paragraphs 58 and 59, which say almost the same thing, because of the words ‘when it applies’ with which the judge qualified his reference to the MHA. Those words are consistent with his conclusion on the way that paragraph 12 of Schedule 1A had to be applied:

80. So, in my judgment the construction urged by the Secretary of State is the correct one, namely that the decision-maker should approach paragraph 12(1)(a) and (b) by asking himself whether in his view the criteria set by, or the grounds in, section 2 or section 3 of the 1983 Act are met (and if an application was made under them a hospital would detain P).

20. Ms Rickard argued that the Upper Tribunal was not bound by Charles J’s decision and invited me to disagree with it. I accept that I am not bound to follow it (Secretary of State for Justice v RB [2010 UKUT 454 (AAC)), but I do not need to disagree with anything that Charles J decided for the purposes of the present case. The judge was concerned with a challenge to a standard authorisation under the MCA that authorised a deprivation of liberty. His analysis has to be read in that context. He says at [58] that the MHA has primacy over the MCA. However, that paragraph has to be read together with what follows in [59]. His reasons suggest that he was concerned only with cases in which a person could be deprived of liberty, as the heading immediately before [58] indicates. The judge’s comments make sense in that context, because there would then be two legislative regimes that might apply without any express provision for giving one priority over the other. Mr Rook read the judgment as limited to that context and remarked that, in other contexts, it would not be possible to say which Act had priority without reference to the circumstances of the particular case. Ms Rickard argued that in this case it would be possible to provide a regime for Mr N that did prevented him from obtaining alcohol without depriving him of his liberty. She cited P and Q v Surrey County Council [2011] EWCA Civ 190, in which the Court of Appeal confirmed the decision of Parker J that particular arrangements did not involve a deprivation of liberty. The circumstances of the two applicants in that case were very different from those of Mr N. However, the case does show that there may be a high degree of control over a person’s activities without the person being deprived of liberty.

21. Moreover, even if Mr N would be deprived of his liberty, applying Charles J’s approach would be consistent with Ms Rickard’s argument in this case, as I now explain.

G. why Mr N is not within the scope of the MHA

22. In a sense, Mr N is within the scope of the MHA, because he is detained under section 3. However, there is no reason why the MCA cannot be applied in anticipation of Mr N moving to a care home so that suitable arrangements are in place on his arrival, as paragraph 12(3) of Schedule A1 allows. The question is: would he be within the scope of the MCA if he were discharged? The answer depends on the application of paragraph 12 of Schedule 1A. This requires two considerations: could Mr N be detained under (i) section 2 or (ii) section 3 if an application were made?

23. As to section 2, Mr N is suffering from a mental disorder, but it does not warrant him being detained for assessment because he is currently a patient and has been assessed. As to section 2(2)(b), the issue is not whether there is a risk, but whether as a result of that risk he ought to be detained. The answer to that value judgment depends on whether a suitable and less restrictive alternative regime could be established under the MCA. The deeming provision in paragraph 12(3) is not relevant, as it relates only to medical recommendations.

24. As to section 3, Mr N is suffering from a mental disorder. The question is whether it is appropriate to detain him for treatment and whether detention is necessary for health, safety or protection. For the former, paragraph 12(5) provides that the tribunal must assume that the treatment cannot be provided under the MCA. That does not present a problem in this case, because the regime envisaged by Ms Rickard would not involve treatment as defined by section 145 of the MHA. The type of support described by Ms Rickard would require tactics of general distraction and diversion to prevent Mr N obtaining alcohol. Even if that would amount to care, it is not care within the definition of treatment, because it would not be ‘specialist mental health … care’. That leaves only the question whether detention would be necessary for health, safety or protection. Any provision under the MCA would be relevant to that value judgment.

25. So, applying Charles J’s analysis and approach, Mr N would not be within the scope of either section 2 or section 3 of the MHA.

H. how the tribunal erred in law

26. The presiding judge set out the tribunal’s reasoning methodically. My concern is with what she did not say. She did not expressly refer to Ms Rickard’s argument on the MCA. Knowing what that argument was, it is possible to identify the passages that relate to it. The evidence showed that he had obtained alcohol when outside the hospital regime previously. However, the reasons do not explain why the different and stricter regime envisaged by Ms Rickard might not be more successful. Moreover, the judge’s reference to treatment outside the hospital does not directly address Ms Rickard’s argument, which relates to supervision rather than to treatment. In those circumstances and in the context of the unfamiliar relationship between the two statutory regimes, I consider that the tribunal’s reasons are inadequate to deal with the argument put on Mr N’s behalf.

I. why a rehearing is needed

27. The authority has not participated in these proceedings. That is unfortunate. The Upper Tribunal has power to acknowledge that the First-tier Tribunal has made an error of law without setting aside its decision: section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The authority’s view might have been helpful in deciding whether or not it was necessary to set aside the decision. Without the authority’s view, I have erred on the side of caution and directed a rehearing. The circumstances may have changed since the last hearing and different evidence may be available on whether or not the MCA might be relevant. I note that, on the evidence before me at the oral hearing, it was doubtful whether Mr N could be prevented from obtaining alcohol. He has managed to obtain alcohol even when detained on an acute ward, as reported in the Section 3 Renewal Nursing Report, which I was given at tab B6 of the bundle for the hearing. I assume that there was tight security and supervision on that ward and that alcohol was not allowed. That may indicate that the success of an arrangement under the MCA is not as clear cut as Ms Rickard argued. That will be a matter for the First-tier Tribunal at the rehearing. No doubt, Mr N’s lawyers will present the necessary evidence for the tribunal to decide the issue.

J. the judge’s reasons

28. Finally, I wish to commend the judge’s approach to writing the tribunal’s reasons. They are methodical, clear, comprehensive, precise and as compact as the case allowed. Although I have criticised them in one respect, in their approach and structure they are by far the best set of reasons I have seen in the mental health jurisdiction. I do not know if they are based on a new template that is being used by the First-tier Tribunal. If they are not, they deserve to be.

Signed on original
on 16 August 2011

Edward Jacobs
Upper Tribunal Judge