Mental Health - January 2010

Developing the DoLS

The courts continue to develop the Deprivation of Liberty Safeguards, but as Catriona Sangster explains, they sometimes take an unexpected approach to the task.

In two recent cases, the Court of Protection has unpacked some key elements of the Deprivation of Liberty Safeguards (DoLS), including the extent of the cover provided by section 5 of the Mental Capacity Act, and the interaction between that Act and the Mental Health Act.

DCC v KH and others
This case concerned a young man, KH, who lived in a residential placement and was subject to ‘best interests’ proceedings in the Court of Protection. His mother lived 100 miles away, and the court had made declarations concerning his contact with her.

On one occasion, KH said he would not return home the next time he had visited his mother. He had recently assaulted a member of staff and further contact with his mother was a few days away. This caused concern, for although a standard authorisation was already in place, permitting KH to be deprived of liberty in the placement, there were fears that it would not cover restraining him at his mother’s and driving him home (a journey whose duration was estimated, perhaps optimistically, at 2.5 hours). The local authority therefore sought an urgent declaration in that regard, and explained that without an express order permitting the use of force, the police might decline to assist.

The application was resisted by the official solicitor, on behalf of KH, on the basis that either the standard authorisation or, in any event, the common law doctrine of necessity would be sufficient.

The judge held that the local authority’s application was unnecessary: if KH refused to return to the placement, it would be “perfectly proper for appropriate restraint to be used whether with or without the assistance of the police because of it being in his best interests”. The standard authorisation would apply not just to the placement in which KH lived; it would also enable him to be returned there. And even if there had been no standard authorisation, what was contemplated would be covered by the protection afforded by section 5 of the Mental Capacity Act 2005 (MCA).

This decision appears to set very wide the boundaries not only of section 5, but also of the DoLS standard authorisation. It should offer local authorities some considerable comfort.

GJ v The Foundation Trust and others
This case concerned GJ, a 65 year-old-man with Korsakoff's Syndrome, which is, of course, accepted as a form of mental disorder within the Mental Health Act 1983 (MHA). GJ also had diabetes, which, following the recent death of his partner, he controlled poorly. GJ lacked capacity to make relevant decisions and the prospect arose of his being admitted to hospital and deprived of liberty there.

A person will not be ‘eligible’ for the DoLS, of course, if he is a mental health patient, so the key question was whether the treatment that necessitated deprivation of liberty was for GJ’s physical or his mental health.

In his judgment, Mr Justice Charles explored in detail the interaction of the MHA and the MCA. He found that under paragraph 12(1) of Schedule 1A to the MCA, GJ would be a mental health patient, and so ineligible for the DoLS, if:

an application in respect of him could be made under section 2 or section 3 of the MHA, and
he could be detained in a hospital pursuant to such an application.

Crucially, this would be a question for the decision-maker, such as a Best Interests Assessor under the DoLS. It would be subjective in nature, so the conclusion of the ordinary reasonable person would be of little concern.

Clearly, the people to whom this judgment is most relevant are those who, as well as being incapable within the meaning of the MCA, are also suffering from mental disorder. Charles J said that when deciding whether such a person could be detained under the MHA, a decision-maker should apply the ‘but for’ test, and ask:

(a) What care and treatment should the person have in hospital: [1] for any physical disorders not connected to his mental disorder and [2] for his mental disorders (or for physical disorders that are connected to them)?

(b) If no physical treatment had in fact been necessary, would deprivation of liberty still have been required?

The judge said that if question (b) were answered ‘no’ and question (c) ‘yes’, the person concerned would not be a mental health patient.

By applying this test, the judge concluded that in this case, GJ was to be deprived of liberty in order to receive treatment for his diabetes – a purely physical disorder. Accordingly, he was not a mental health patient and would not, therefore, be ‘ineligible’ for the DoLS. A standard authorisation would be appropriate in his case.

This decision provides welcome clarification of an obscure, but nonetheless important, provision. In a hospital setting, the ‘eligibility’ assessment is crucial, not least because its outcome can prevent a person being brought within the DoLS. In that situation, of course, a person who is instead detained under section 3 of the MHA will be entitled to free after-care when he is finally discharged from hospital. In addition, this decision further demonstrates the primacy of the MHA over the MCA; the latter is not simply an alternative to the former, and decision-makers simply cannot pick and choose between them.

Catriona Sangster, Paralegal
Weightmans LLP