Theis J has waded into the thickets of Schedule 1A. In Manchester University Hospital NHS Foundation Trust v JS & Others (Schedule 1A Mental Capacity Act 2005)  EWCOP 33, she heard the appeal against the decision of HHJ Burrows in Manchester University Hospitals NHS Foundation Trust v JS & Anor  EWCOP 12. In brief terms, she has upheld both the first instance judgment and the test set by Charles J in GJ v The Foundation Trust & Anor  EWHC 2972 (Fam) to be applied by decision-makers to determine whether a person could be detained under the MHA 1983. Whilst much of the judgment turned on an analysis of whether HHJ Burrows had applied the test correctly to the facts of JS’s case, of wider relevance are the following parts of her judgment.
Theis J agreed (at paragraph 48) that a useful structure for practitioners and judges was to answer – in this order – the ‘key questions’ of:
- Is the person a ‘mental health patient’?
- Is the person an ‘objecting’ mental health patient’?
- Could the person be detained under section 3 MHA 1983? [or I would add, where relevant, s.2]
Theis J was clear that Charles J’s analysis of the meaning of ‘could’ was correct, namely that the decision-maker should ask themselves whether, in their view, the criteria set by, or the grounds in, s. 2 or s.3 MHA 1983 are met (and if an application was made under them a hospital would detain P). The alternative advanced by the Trust of requiring the MCA 2005 decision-maker to defer to the MHA 1983 decision-maker unless their decision is not logical or rational “would probably lead to more uncertainty and risk undermining the purpose of the legislation. Such a development would not be welcome in this area, where the legal landscape needs stability rather than further uncertainty” (paragraph 99)
Theis J identified that a practical step that could be taken in cases where Schedule 1A Case E issues are likely to arise “is for evidence to be provided to address that issue, utilising the GJ framework. That would not only assist the court and the parties, but also focus the minds on what needs to be addressed both in terms of any decisions to date under the MHA 1983, the basis of the application in the Court of Protection and addressing the key questions outlined above” (paragraph 116).
At paragraph 118, Theis J also endorsed ‘practical suggestions’ put forward by the Secretary of State for Health and Social Care to address ‘stalemate’ situations, as follows:
(1) The MHA and MCA decision-makers should arrange for discussions between the relevant professionals. They should be undertaken in what Ms Kelly describes as ‘the spirit of cooperation and appropriate urgency’. This will ensure the relevant professionals have reviewed and considered relevant evidence and if required further inquiries can be made.
(2) If these discussions do not result in a detention being authorised under the MCA the hospital has a number of choices:
(3) It can seek the person’s admission under the MHA 1983 to authorise the deprivation of liberty, including on a short term basis while it seeks to advance the person’s discharge;
(4) It can seek the person to be detained in an alternative setting, such as a care home, in which Case E has no application with consideration being given to what can be put in place to support the person in the community under s 117 MHA 1983 and/or Care Act 2014 duties.
(5) It can stop depriving the person of their liberty if it considers the person should not be detained under MHA 1983, even with the knowledge that the person will not be detained under the MCA 2005.
(6) If the hospital does not consider that an application for assessment or treatment under MHA 1983 is warranted but does consider it is in the person’s best interests to be detained in hospital for treatment of a mental disorder, it should consider carefully its reasons for drawing this distinction. The hospital could apply to the Court of Protection for a determination of whether the person is eligible for detention under the MCA 2005.
At paragraph 119, Theis J noted in relation to the last point that she could:
see the sense in the suggestion of an application to the Court of Protection for a determination being a possible route to resolve these issues, but that is not said with any encouragement for such applications to be made unless it is necessary, and only after all other options have been explored. It will be a matter for each individual judge whether such an application is accepted, depending on the particular circumstances of the case.
Specifically in relation to those aged 16 or 17, to whom Schedule A1 does not apply (but to whom Schedule 1A does apply in determining whether or not the Court of Protection can make an order depriving them of their liberty), Theis J identified (at paragraph 123) that the following may provide a guide:
- 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.
- 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.
- In the event that the Court of Protection determines that P is ineligible the professionals should urgently liaise in the way outlined above.
The interface between the MCA and the MHA is a notoriously awful area. Some may find it useful to watch this shedinar where I try to give a guide through (which I will re-record when I have a moment to incorporate this latest word).