Manchester University Hospitals NHS Foundation Trust and JS and Manchester City Council [2023] EWCOP 12

Judgment concerning a 17 year old who had been detained under s2 of the MHA but was deprived of her liberty when that authority lapsed.

Jane has a diagnosis of ASD, ADHD, learning disability and an attachment disorder. She had been admitted to a specialist child and adolescent psychiatric unit as an 'informal patient' (she had been assessed as having capacity to consent to admission) but was discharged to the care of her mother over concerns she could become institutionalised. A few days later, after having been detained by police once before, she was detained under s2 of the MHA following an overdose. After recovery, she remained on the ward even after authority to detain expired. It was agreed being on the ward was inappropriate and detrimental to her health.

In this judgment HHJ Burrows declares that once the s2 authority had expired Jane had been deprived of her liberty. He then sets out a lengthy analysis looking at the interplay of the MHA and MCA before concluding at [102-103]:  

"that Jane was ineligible to be deprived of her liberty in the Hospital under MCA. She was within the scope of the MHA under Case E. I have concluded for the reasons I have given that she could have been detained and treated under the MHA. I would go further and say that she should have been so detained and treated.

Had I reached that conclusion at the hearing, I would have been invited to invoke the inherent jurisdiction to authorise Jane’s detention. I did not have to do that because of the steps I took. However, I would be reluctant to do so for the following reasons. First, because the inherent jurisdiction should be used only where a vulnerable adult or (in this case) a child is left at risk because of a gap in the statutory framework designed to keep them safe. That is not the case here. The MHA should have been used. It was available. There is no gap for the inherent jurisdiction to patch. Secondly, the MHA is a long-established bespoke code dealing with the difficult regulation of the treatment of detained patients in Hospitals. The use of the inherent jurisdiction or the MCA for that matter would have the perverse result of a Judge having to make decisions over the management of medical treatment when that code exists and is available for use. For the Court to assume that role would (a) place Judges in an impossibly difficult position and (b) act as an incentive for those entrusted with using the MHA, clinicians and Hospitals, not to use it."

Read the judgment on the National Archives