Manchester University Hospitals NHS Foundation Trust v JS & Anor (Schedule 1A Mental Capacity Act 2005) [2023] EWCOP 33

​Appeal concerning the interpretation of Schedule 1A to the Mental Capacity Act 2005 (MCA 2005) and the basis upon which the court sitting in that jurisdiction should determine ineligibility.

JS, a 17 year old with diagnoses of ASD, ADHD, learning disability and attachment disorder, was first admitted informally to hospital in 2022 but after she was discharged two attempts to kill herself led to her detention, in January 2023, in a general hospital under s.2 MHA 1983. That detention lapsed on 5 February 2023 but JS remained on the ward subject to the same restrictions so an application to the Court of Protection was made by the Trust to seek authorisation for her continued deprivation of liberty. In April 2023 the judge ruled JS was ineligible to be deprived of her liberty and the Trust appealed.

Thies J first notes the appeal is slightly academic as intervening events had resulted in Js's detention under s3 MHA 1983. However, the issues may arise again in this case and there is a wider interest in the appeal. She then provides a thorough review of the relevant legislation and case law, including GJ v The Foundation Trust, relating to the interaction between the MCA 2005 and MHA 1983, in particular Sch1 of the MCA. At [98] she states there is no reason to depart from the analysis of Case E in Schedule 1 set out by Charles J in GJ, despite calls for her to distinguish that decision, and goes on to dismiss the appeal as the judge had not erred.  At [114-124] she then sets out some thoughts on the wider issues raised by the case and the 'stalemate' that can arise in these situations before at [123] itemising some practical steps:

"(1) In any application seeking authorisation to deprive the liberty of a 16 or 17 year old, the applicant should carefully consider whether the application should be made in the Court of Protection and, if not, why not.

(2) If a Schedule 1A Case E issue is likely to arise any evidence filed in support of an application should address that issue, so the relevant evidence is available for the court, thereby reducing any delay.

(3) In the event that the Court of Protection determines that P is ineligible the professionals should urgently liaise in the way outlined above."

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