Is A an ineligible person under the Mental Capacity Act 2005 by virtue of his detention under the Mental Health Act? Answer, no as the Mental Health Act regime does not cover proposed medical procedures in this particular case.
This case questions the decision of HH Judge Parry in Re AB  EWCOP 31 where in paragraph 54 the judgment she reaches the opposite conclusion. Paragraph 3(2) of schedule 1A is aimed at avoiding conflict as opposed to requiring similarity of actions under the Mental Health Act/ Mental Capacity Act.
Accordingly Mostyn J was satisfied that A was eligible for the treatment being proposed and therefore for a deprivation of liberty declaration. The Mental Capacity Act: Deprivation of liberty safeguards code of practice issued by the Secretary of State states in paragraph 4.50:
“If the proposed authorisation relates to deprivation of liberty in a hospital wholly or partly for the purpose of treatment for mental disorder, then the person will also not be eligible if they are: currently on leave of absence from detention under the [19 383 act]’s or subject to supervised community treatment, or subject to conditional discharge, in which case powers of recall under the Mental Health Act should be used”
and in paragraph 4.51:
“People on leave of absence from detention under the Mental Health Act 1983 or subject to supervised community treatment or conditional discharge are, however, eligible for deprivation of liberty safeguards if they require treatment in hospital for a physical disorder”.
A suffers from autism and prior to the summer of 2007 he had exhibited a relatively high level of functioning with an IQ within the normal range but that had subsequently deteriorated sharply. He displayed psychotic symptoms with a high level of aggressive behaviour. This led to detention under the Mental Health Act. A’s functioning is now described as “moderate”. A is uncommunicative and is cared for in long-term segregation.
No one had been able to ascertain why there has been a catastrophic decline since 2011. A had undergone a variety of investigations for neurodegenerative diseases which included Huntington’s disease but all of these have been ruled out. Only those which could be identified via a CT or MRI scan had yet to be explored.
The hospital authority sought authority from the Court of Protection for such procedures to be carried out in A’s best interests and to authorise the use of such necessary physical restraint as would enable investigations to be undertaken. The CT scan would require A to be given a general anaesthetic (he would not be able to stay still long or understand the need to do so during the procedure). However whilst under general anaesthesia necessary dental work would also be undertaken – he suffers from caries and it may be the pain associated with that that is affecting his condition.
The proposed treatment was supported by statements from the consultant psychiatrist, registered mental health nurse and the consultant anaesthetist. They all agreed the medical necessity of the procedures proposed.
Orders were made to permit the undertaking of medical measures which the court considered where in the best interests of A and furthermore an order authorising the deprivation of a liberty for that purpose was made.
The court determined, looking at the provisions of the Mental Capacity Act and Mental Health Act, that the Court of Protection was able to make the orders sought as by moving A from a psychiatric hospital to the general hospital meant that he would not be detained in a hospital under the psychiatric regime. The Mental Health Act cannot authorise treatment without the consent of the detained person save for treatment to address the mental disorder.
An interesting decision from Mostyn J which clarifies the obvious anomaly in the early decision of HH Judge Parry. Those who have considered both acts may agree with Mostyn J in paragraph 8 of his judgement describing it as a “thicket of legislative drafting which seems to be designed to confuse and which is characterised by extreme opacity. The recent Law Commission report on the reform of this system has highlighted the impenetrability of much of the legislative provisions as one of the most pressing reasons for reform, and the legislative scheme and language here is a veritable smorgasbord of double negatives and subordinate clauses, requiring a navigational exercise from provision to provision, which is an arduous task even for someone who administers justice in this field on a regular basis.”. What hope for the rest of us?!
Read the full text of the judgment here