Decision makers in a MHA case do not apply a best interest test but have to consider the necessity test which can include taking account of the availability of an alternative placement pursuant to a care plan.
That care plan could or may result in P being deprived of his liberty that is or could be authorised under MCA and DOLS.
KD, the P, had a diagnosis of Korsakov’s syndrome and was initially admitted under the MHA section 2 in 2011 but since 2012 has been subject to guardianship under section 7 MHA. He was transferred to a residential care home towards the end of 2012 and an application to discharge KD from guardianship was made in June 2013. This case relates to an appeal against the tribunal who considered the application to discharge the guardianship order. The crux of the factual matter related to the placement of KD and whether it was appropriate and whether this should be reassessed and a potential alternative sought.
The key issue in this case is the continuation of guardianship under the MHA and a discharge on the basis that KD will be placed where he is or elsewhere under a care plan which, if it amounts to a deprivation of his liberty, would be authorised under the MCA or its DOLS.
If a person lacks the relevant capacity and the placement is required by the Guardian it may involve an unlawful deprivation of liberty if it is not authorised under MCA under DOLs or by the Court of Protection.
The court was clear that a tribunal (Mental Health Review Tribunal now referred to as First Tier Tribunal) should not exercise its statutory power to discharge a guardianship if the consequence of doing so would be to bring about an unlawful deprivation of liberty (see paragraph 57). If satisfied that the person lacks capacity then the tribunal should not discharge the guardianship until a lawful alternative placement is in place and so until either a DOLS standard authorisation (or a court order) authorising the deprivation of liberty is in place. If an authorisation under DOLS at the relevant placement has been given during the guardianship then the underlying test for eligibility will change on discharge for application of case D to case E of Schedule 1A of the MCA (see paragraphs 33 to 42) and the court’s view is that the existing DOLS (or court order) should be confirmed or renewed on this basis before the discharge is ordered by the tribunal.
The lawfulness of an existing and future implementation of a care plan if it involves a deprivation of liberty is a matter for the Court of Protection.
The judgment at paragraphs 67 to 73 provides a checklist for the tribunal when an issue involving an argument that an alternative involving the application of the MCA is said to be the basis for a discharge of guardianship, and also highlights, at paragraph 69, the advantages and disadvantages of the rival alternatives – MCA and MHA.
The central factor in this particular case was the difference between a regime of care whilst guardianship continues and after its discharge.
The court (at paragraph 43) said, in relation to the timing of an authorisation of a DOLS under the MCA:
“also, in my view the Court of Protection can approve a care plan and authorise any deprivation of liberty it would create from a date in the future (i.e. when it comes into effect)“.
The appeal focused on whether KD was subject to a deprivation of his liberty which as part of the least restrictive available option could and should be authorised pursuant to a DOLS standard authorisation following a discharge of the guardianship and as an alternative to it. The court analysed the differences between guardianship and DOLS and noted that under section 18(3) MHA a person who leaves the place of residence specified under that section may be taken into custody and returned to the residence. The court also noted the powers available to the tribunal under section 72(4) and in particular that under guardianship the Guardian’s powers derived from local social services authority as opposed to hospital managers, although guardianship can be brought to an end by the responsible clinician, the responsible social services authority or the nearest relative. In this case the nearest relative did not make such an application.
The court considered the MCA Code of Practice particularly paragraph 13.16 which provides that the exclusive right of the Guardian to decide where a person should live does not enable a person to be deprived of his liberty. The court noted that the Code of Practice MHA at paragraph 26.30 is to the same effect.
However the court noted that the practical effect of section 18(3) of MHA, in particular the power to return P to P’s place of residence which has the effect of a requirement or an injunction preventing people leaving it, is more readily available and sensible way of enforcing the result that P lives at a certain place than an injunction against a person who lacks capacity as to where he should live. The court recognised the enforcement of such an injunction against a patient is problematic as it engages issues of contempt against the person who lacks capacity and this can cause difficulties in relation to contempt proceedings.
The court considered the eligibility criteria to be deprived of liberty under the MCA and in particular depending on the circumstances of KD. The court went on to consider the applicability of Case D and paragraph 3 of schedule 1A in two other authorities (see paragraph 34 for citations), but decided in the light of the way the tribunal had considered the matter, the appeal court did not have to express a view as to whether KD was being deprived of his liberty without first hearing submissions on the point and being provided with further information as to KD’s past and present care regime. The court recorded its preliminary view as set out in paragraph 28 of judgment (referring to MCA Code of Practice paragraph 13.16 which does not enable a person to be deprived of his liberty and the same corresponding paragraph 26.30 of the Code of Practice MHA which were correct) and a deprivation of liberty during guardianship can and should be so authorised under the MCA and thus its DOLS, stating at paragraph 39:
”Accordingly, it would be prudent for a Guardian and the managing authority and supervisory body of the relevant care home to consider whether a DOLS authorisation should be obtained in respect of a placement of P in a care home required by a Guardian when P’s care plan there creates or may create a deprivation of P’s liberty”.
The court went on to note that on discharge of the guardianship a deprivation of liberty authorisation would be required in order that the deprivation of liberty was lawful.
Ultimately the court concluded the appropriate way forward in this case was to be a new application to the tribunal to be supported by appropriate evidence and arguments on the respective positions of KD, his family and Guardian and the providers and potential providers of KD’s care, the key issue being the placement of KD.
Whilst this is a lengthy judgment it is key reading for anyone who either represents or is involved as a family member or a care home manager where a person is subject to guardianship under MHA and the issue of DOLS arises. It highlights starkly the key differences between the two statutory regimes, but of course capacity is the key to the availability of the MCA. If the subject person does not lack capacity, MCA does not apply.
This decision discusses the differences in the statutory regimes of MHA and MCA and in particular the relationship of DOLS and at what point DOLS is applicable.
It reiterates that under the MCA DOLS only applies to a placement in a hospital or care home (see schedules A1 and 1A). The case reiterates the principles and the two distinct routes of authorisations in the case of AM v Maudsley NHS Foundation Trust and SSH 2013 UKUT 0365 (AAC) paragraph 60.
The court noted the impact of Cheshire West which had the result that many more people in care homes and other placements such as forced accommodation in children’s homes were now considered to be deprived of their liberty and that the concept of deprivation of liberty in breach of article 5 of the ECHR is arguably wider than that of detention under the MHA.
The Court of Protection can only consider a care plan at the placement at which the Guardian under guardianship requires a person to live – any authorisation of a deprivation of liberty given by the court can only relate to that placement. There arises issues as to whether a guardian, usually a local authority, can make decisions that determine or affect the outcome of issues that cannot be challenged under the best interest jurisdiction of the Court of Protection – if a cooperative approach is not taken by statutory bodies then the challenge is by way of judicial review and/or an application under the statute (in this particular case the MHA). In both cases the Court of Protection would have no jurisdiction. An example of such a stand-off could arise when there is a dispute as to where a person should live and/or the terms of the care plan, where a person is subject to guardianship and an application can be made for discharge of guardianship which is not as well suited as the MCA regime which can include an application to the Court of Protection for a welfare order, or determining a dispute about which available placement best promotes a person’s best interests. The issues of deprivation of liberty clearly come under the Court of Protection.
Read the full text of the judgment on Bailii