mental capacity act, dols and the mental health act case law update - rebecca fitzpatrick - october...

@BJhealthlaw

@BJhealthlaw

case law update

@BJhealthlaw

• SS for Justice V KC – conditional discharge

& DoLS

• RS v LCC – responsibility for s.49 reports

under MCA

• recent amputation judgment of Jackson

Re B

• Re X update – Re NRA & Ors

@BJhealthlaw

• difficult to discharge restricted patients

who lack capacity from detention under

the MHA 1983

• often require robust conditions in the

community that amount to a Deprivation

of liberty

@BJhealthlaw

• CoA decided it was unlawful for a

tribunal to discharge from MHA detention

into effectively what amounted to

community detention

• it was not true “discharge” from

detention

@BJhealthlaw

• considered this issue again of conditional

discharge to circumstances that may

constitute a DoL where P lacks capacity

• decision approves the use of

authorisation under MCA 2005 with DoLS

running alongside conditional discharge

@BJhealthlaw

KC was a restricted patient who lacked

capacity to make decisions on residence and

care. Tribunal made provisional decision to

discharge subject to the following conditions

@BJhealthlaw

1. residence at placement, not to leave

premises unsupervised by staff

2. comply with care plan & supervision

3. accept psychiatric & social supervision

4. refrain from drinking alcohol & submit

to testing

@BJhealthlaw

• all agreed this amounted to a DoL

• placement was not a care home or

hospital and so would require

authorisation of the Court of Protection

• main issue for Charles J to consider was

whether it is lawful for a First Tier

Tribunal (FTT) to discharge P in such

circumstances

@BJhealthlaw

• now possible for a person to be given a

conditional discharge from MHA detention

if the conditions of that discharge amount

to an objective DoL, so long as it is

possible for that DoL to be authorised

under Schedule 1A to the MCA

@BJhealthlaw

• that is, if P lacks capacity the DoL under

the CD will be lawful if authorised under

the DoLS regime or by the Court of

Protection

@BJhealthlaw

• on a practical level, where a Tribunal is

satisfied that P could be granted a CD,

the norm will be to adjourn for the DoLS

assessment to take place, so that the

Tribunal can be sure the DoL will in fact

be authorised and will operate as soon as

the CD takes effect

@BJhealthlaw

• decision also contains remarks (expressly

obiter so persuasive rather than binding)

suggesting that a patient with capacity

might be able to consent to discharge to

such conditions, and referring to the

apparent unfairness to that group

compared to those lacking capacity

@BJhealthlaw

• tribunals likely to seek reassurance in

such cases that the consent is ‘real’

rather than any pressure for example

being placed on P

@BJhealthlaw

• important decision - limits the damage of

RB

• in these types of cases - MHA and MCA

can work in parallel achieving different

purposes

@BJhealthlaw

• controversy likely to continue re

capacitous restricted patients however as

Charles’ obiter comments conflict with

the decision in ‘R (G) v MHRT [2004]

EWHC 2193’

@BJhealthlaw

• considers the responsibility of NHS bodies

to provide s.49 MCA reports at no cost to

the parties & impact on NHS resources

• CoP declined to vary or alter the

principle behind an order requiring an

NHS Trust to provide a report under s.49

MCA

@BJhealthlaw

• judge acknowledged the order placed a

burden on the limited resources of the

Trust

@BJhealthlaw

• B opposes it in strongest terms

• will need sedation to overcome

resistance, inc post op (and rehab – for

rest of life - needs co-operation)

• surgery can’t return him to former life,

or living independently

@BJhealthlaw

• “the loss of his foot will be a continual

reminder that his wishes were not

respected…”

“I am quite sure that it would not be in Mr B’s best interests to

take away his little remaining independence and dignity to

replace it with a future for which he understandably has no

appetite and which can only be achieved after a traumatic and

uncertain struggle that he and no one else would have to

endure…

…There is a difference between fighting on someone’s behalf and

just fighting them. Enforcing treatment in this case would surely

be the latter”

@BJhealthlaw

• reflects guidance set out by the Supreme

Court in Aintree v James (2013)

“…decision makers must look at his welfare

in the widest sense, not just medical but

social and psychological”

Lady Hale

“in the end, if M remains confined in a home she is entitled to

ask “what for”? The only answer that could be provided at the

moment is “to keep you alive as long as possible”. In my view

that is not a sufficient answer…”

“There is little to be said for a solution that attempts without

any guarantee of success, to preserve for her a daily life without

meaning or happiness and which she… regards as unsupportable”

@BJhealthlaw

• Munby P, the President of the Court of

Protection, in reaction to the increased

case-load following on from Cheshire

West reviewed a number of DoL cases

together

@BJhealthlaw

• Attempted to devise ‘a standardised, and

so far as possible ‘streamlined’, process,

compatible with the requirements of

Article 5 ECHR, which will enable the

Court of Protection to deal with all DoL

cases in a timely but just and fair way’.

@BJhealthlaw

• new process came into effect on a pilot

basis on 17.11.14.

• followed by a new Practice Direction &

CoP form COPDOL10

@BJhealthlaw

Court decide applications for a court-

authorised DoL on the papers only, without

holding a hearing, provided certain

safeguards are met namely that the person

who is the subject of the application and all

relevant people in their life are consulted

about the application and have an

opportunity to express their wishes and

views to the court and do not object.

@BJhealthlaw

Court will analyse the care plan, to ensure

that it is in P’s best interests, is the least

restrictive option available and the

deprivation is necessary and proportionate.

@BJhealthlaw

Applicant must set out the circumstances

fully and frankly. Mumby considered no need

for P to be a party: the evidence from the

applicant is the only evidence that the court

receives.

@BJhealthlaw

• stated Mumby had stepped outside

Court’s remit, that his conclusions could

not be considered as authoritative & that

his conclusions were flawed:

• fundamental principles of domestic law &

relevant requirements of ECHR demand

that P be a party to such cases

@BJhealthlaw

“it is generally considered indispensable in this country for the

person whose liberty is at stake automatically to be a party to

the proceedings in which the issue is to be decided. The

President’s conclusion that it was unnecessary for this to be so in

relation to an adult without capacity appears therefore to run

counter to normal domestic practice….I can accept that, in

theory, P need not always be a party…if his participation…..can

be reliably secured by other means”

ADASS

figures

COP

applications

2015/16 31,500

2014/15 28,500

2013/14 212

@BJhealthlaw

This Charles J judgment is the latest in the

‘Re-x saga’…

@BJhealthlaw

• streamlined Re-X procedure should be re-

introduced

• family members should be trusted to

advocate in P’s best interests and in most

cases will be no need to join P as a party

• gives further guidance re details that

should be included in the forms

@BJhealthlaw

Judgment something of a policy decision and

directly contradicts the Court of Appeal’s

earlier decision…

unlikely to be the end of the matter

@BJhealthlaw

KEEP

CALM AND

CARRY

ON

@BJhealthlaw

• published 7 July - open for consultation

to 2 November 2015

• draft legislation by end of 2016 – unlikely

to be in force until 2017/18

• will not redefine DOL, or remove

obligation for a process for authorisation

@BJhealthlaw

• in fact – aims to extend protection to

those with restrictive care, approaching a

DOL…

• the saga continues…

@BJhealthlaw

• DOL is far more widespread than

previously recognised

• not necessarily a bad thing – but needs

scrutiny / authority – or will be unlawful

DOL

@BJhealthlaw

• expect busy times – and huge resource

implications and potential liabilities

• need careful review of existing cases,

training and support

• in the rush to protect rights and

safeguard the most vulnerable, don’t

forget ‘empowerment’

@BJhealthlaw

Please get in touch if you have any questions

or wish to discuss the topics we’ve covered

further…

rebecca.fitzpatrick@brownejacobson.com | 0161 300 8050