Deprivation of Liberty – The Overlap between the Mental Health Act 1983 and the Mental Capacity Act 2005

Thu, 30 Jun 2011

By Nageena Khalique
Many practitioners understand that there is some overlap between the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA). More often this arises in circumstances with patients where there is uncertainty about how to identify deprivation of liberty and the interface of the MHA and MCA Safeguards. 
 
The two statutes are underpinned by different philosophies. The MCA operates to empower people to make decisions for themselves wherever possible and the Act is aimed to protect incapacitous adults. The Code of Practice (2007) enshrines these principles and reinforces the notion that any decisions made should be in the individual’s best interests using the least restrictive measures.
 
Conversely the MHA provides a legislative framework along with the MHA Code of Practice aimed at providing medical treatment for patients suffering from a mental disorder. An important element of the MHA is the management or reduction of risk which arises from the mental disorder.
 
If a patient falls within the criteria for admission or treatment under the MHA, then that act takes primacy. Mental health settings are designed for compulsory detention. However, what about informal patients or those who lack capacity to consent to being there who are admitted to such hospitals and treated outside of the MHA? There are other patients who may be detained but there may be some doubt as to whether the MHA is being used as a blunt instrument in some cases for example, patients with learning disability or autism who have difficulty communicating and are unable either to consent or object. Are they effectively being deprived of their liberty and if so, what safeguards are in place? Not every case of deprivation of liberty of a psychiatric patient (a person suffering from a mental disorder) will necessarily be dealt with under the MHA – for example, if the treatment required is for a physical problem rather than for the treatment of the mental disorder (MHA s63 and see Charles J in GJ v The Foundation Trust [2009] EWHC 2972 (Fam)).
 
Charles J emphasised in the GJ case that you cannot “pick and choose” (at para. 45) between the MHA and MCA stating that the MHA should have “primacy” if it can be used. The critical point here being that the threshold criteria in s2 and /or s3 of the MHA must be met. Section 3(2)(a) requires that the patient must be “suffering from a mental disorder of a nature and degree which makes it appropriate for him to receive medical treatment in a hospital” and per s3(2)(c) “it is necessary for the health and safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and (d) appropriate medical treatment is available to him”. 
 
An example of when it could be appropriate to use the MCA rather than the MHA is set out in Chapter 13 (page 231) of the Code of Practice1.
 
A key question for the decision maker looking at the MHA is therefore whether no alternative solution is available under the MCA and the criteria under the MHA are genuinely met. Paragraph 13.11 of the MCA Code of Practice states “if a clinician believes he can safely assess or treat a person under the MCA, they do not need to consider using the MHA. In this situation, it would be difficult to meet the requirements of the MHA anyway”. There may therefore be cases where there is uncertainty as to whether the MHA criteria are met in which case, the decision-maker will need to consider the MCA.
 
Schedule 1A to the MCA defines the jurisdictional concept of someone being “ineligible” to be deprived of liberty by the MCA. Part 1 sets out the categories of ineligible persons, in particular paragraph 5 of Schedule 1A of the MCA, which defines as ineligible those patients who “object to being a mental health patient”. 
 
Paragraph 5(4) of Schedule 1A provides that a person is ineligible to be deprived of their liberty under the MCA or subject to a DoLS authorisation where he objects either to being a mental health patient or to receiving mental health treatment, if the person is within the scope of the MHA (by virtue of a mental disorder and satisfying other criteria for detention) but is not currently the subject of a compulsory treatment regime thereby depriving them of their liberty. Objection only makes someone ineligible for DoLS if that treatment is wholly or partly for mental disorder in a hospital and not in a care home.
A crucial issue is what the patient is objecting to. Objection in the context of the MCA encompasses valid advance directives as well as other less formal objections. Patients who lack capacity can and often are still treated for a mental disorder in residential homes or hospital. The DoLS Code of Practice indicates that in a care home (that is not registered under the MHA) but which can nonetheless provide care, the question of objection is not of major significance and DoLS should be used regardless of a patient’s objections. 
 
Deprivation of Liberty?
 
In any case the starting point is to identify whether there has been a deprivation of liberty. It is often said that the distinction between a deprivation of and a restriction upon liberty is merely one of degree or intensity and not one of nature and substance. Recent case law has examined this issue. In P (otherwise known as MIG) and Q (otherwise known as MEG) and Surrey County Council v CA and LA and EHRC [2011] EWCA Civ 190, the Court of Appeal set out the ECtHR guidance which requires consideration of 3 elements where deprivation of liberty is concerned:
 
First, the objective element of confinement to a certain limited place for a not negligible length of time (Storck v Germany [2005] 43 EHRR 96 at [74]);
 
Secondly, the “additional subjective element that they have not validly consented to the confinement in question” – the objection element (Storck at [74]);
 
Thirdly, that the confinement must be “imputable to the State” in other words, a public authority is involved directly (Storck at [89]).
 
Wilson LJ’s said, with reference to Storck, that the presence or absence of an objection is very relevant to whether there is an objective deprivation of liberty and that, where a person is objecting, this could cause conflict including a requirement for physical restraint.
 
Additionally, Wilson LJ considered whether medication was relevant and concluded that the absence or taking of medication was relevant to the objective element. For example, tranquillisers, especially if forcibly given, could suppress the patient’s ability to express themselves.
 
In the Court below2, Mrs Justice Parker had felt it permissible to look at the reasons why MIG and MEG lived as they did in order to determine whether there had been a deprivation of liberty. Parker J found that the principal reason that P and Q had been where they were was to give them a home so that they could receive care rather than to be “treated” or “managed”. Wilson LJ felt that it was wrong to look at the purpose of the arrangements stating that “even where a person lives in an institution rather than a family home, there is a wide spectrum between the small children’s home and a nursing home on the one hand, and a hospital designated for compulsory detentions like Bournewood; and it is in my view necessary to place each case along it”.
 
Summarising, Wilson LJ stated the unanimous view of the Court of Appeal that there was no deprivation of liberty taking into account factors such as “the small size of the home for adolescents in which she lived; her lack of objection to life there; her attendance at an educational unit; her good contact with such members of family as were significant for her; and her other fairly active, social life.”
 
An important picture emerging from the MIG and MEG case3 is that people residing at home, in care homes, foster homes or in acute hospitals may be restrained in their best interests but this does not equate to a deprivation of their liberty. Such living arrangements have a degree of “relative normality” and do not achieve the threshold of delivering treatment and care to which the person is unable to consent.
 
If an objection to those arrangements is made, most importantly by the person, but also by a carer or relative, then the question of deprivation of liberty and confinement is clearly raised. Factors to be considered are the use of medication, social contact, attendance regularly at college, day centre of work.
 
Mental health units, as distinct from care homes, acute hospitals and residential homes are designed for compulsory detention as Wilson J noted in the above case. Thus, a mental health setting would need to be able to demonstrate that the regime for the patient who is not detained under the MHA (an informal or incapacitous person for example) is distinguishable from the regime for a patient who is detained under the MHA. 
 
If there is no distinction between the regime for a detained patient and for a non-MHA patient in that mental health setting, a person who lacks capacity to consent for himself, even where they are not objecting (so do not fall under the ineligibility exclusions under para.5(4) of Schedule 1A of the MCA) is likely to be deprived of his liberty simply by being in that setting. This is because the mental health setting is unlike those settings (home, care homes, acute hospitals, foster care) where there is a “relative normality” to the living arrangements. In such circumstances it appears that the DoL safeguards would be necessary even where the patient is not objecting if the deprivation of liberty is in their best interests.
 
The interface between the MHA and the MCA
 
It is apparent that patients who lack capacity can still be accommodated, cared for and treated for their mental disorder within a hospital or residential care setting without having to detain that patient under the MHA. Indeed, many such patients are managed in mental health units on an informal basis. This is permissible provided their treatment complies with the MCA and the circumstances do not amount to a deprivation of liberty. 
 
However, let us not forget that the Bournewood4 case identified a situation where the conditions under which the patient was accommodated in a hospital or nursing home may amount to a deprivation of liberty under Article 5 of the European Convention of Human Rights (ECHR). In such circumstances, any deprivation must comply with the requirements of Article 5 to be lawful. There is a choice between the MHA and the MCA and the DoLS schemes (see Code of Practice para. 4.13-4.24). 
 
It is frequently said that the MCA is the “least restrictive” option operating in the person’s best interests. It is also said that the MHA offers much more protection on the basis of the increased safeguards (i.e. automatic referral for review to a Mental Health First-Tier Tribunal; consent to treatment provisions, involving a Second Opinion Approved Doctor; and free aftercare under Section 117) compared to the DoLS where an application must be made to the Court of Protection. Conversely, detention under the MHA can stigmatise and the effect of such detention is felt by some patients to be discriminatory. 
 
1 An 80 year old patient with dementia where the GP initially recommends detention to treat physical injuries sustained as a result of confusion related to her dementia. The GP believed detention was warranted under s2 of the MHA but with the help of her son and the social worker, the patient became compliant and allowed treatment of her cuts. Under the MCA the son agreed to help his mother take the medication and receive the care required without being detained under the MHA.
 
2 EWHC 785 (Fam)
 
3 See also A Local Authority v A and B (Equality and Human Rights Commission) and A Local Authority v C, D and E (EHRC) [2010] EWHC 978
 
4 HL v UK (2005) 40 EHRR 437
 

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