A patient with a mental disorder who needed to be detained in hospital would be sectioned under the Mental Health Act 1983 having been assessed by doctors and a social worker. In 2007 the Mental Capacity Act 2005 created additional and entirely novel means for depriving someone with a mental disorder of their liberty if they lack capacity. These are known as Deprivation of Liberty Safeguards, ( DOLS ). This legislation addressed the legal gap revealed by the The European Court of Human Rights in the case of Bournewood whereby there could be indefinite detention with no process of review for those lacking capacity to object.

However, the drafting of the Mental Capacity Act, in spite of a very lengthy and complicated schedule, created uncertainty as to when a person should be sectioned under the Mental Health Act 1983 and when the DOLS provisions should be used. As a result, DOLS was seen as preferable to a section as it was the least restrictive option. In fact the sectioning process under the Mental Health Act 1983  gives the patient more rights. The opportunity to appeal to a Mental Health Review Tribunal provides an easily accessible review of detention which takes place at the hospital so that even the most seriously incapacitated patient can attend. The informality of the tribunal also meets best the needs of patients and the expertise of the panel, with threefold expertise from the medical, legal and lay sectors, is unmatched in any other judicial forum. Through the Law Society’s Mental Health Review Tribunal Panel, specially trained and tested lawyers are available to represent patients in this legally complex area.

We acted for GJ before the Court of Protection which addressed the interaction between the Mental Health Act and DOLS for the first time. GJ suffers from Korsakoffs, a mental disorder, and diabetes and was placed under DOLS in a hospital only months after being discharged from s3 at the same hospital. The hospital argued that the patient was no longer being treated for his mental disorder so could not be sectioned. In his best interest, he needed DOLS in order for his diabetes to be safely managed.

We argued that he should have been sectioned under the MHA 1983 given that he was receiving treatment in the form of nursing care for his mental disorder which manifested itself in his inability to manage his diabetes by virtue of his poor memory. Had he been placed under section, he could have appealed to a Mental Health Review Tribunal for a speedy and cheap determination of the matter rather than engaging in a lengthy and very expensive High Court application.

The Court decided that the Mental Health Act 1983 has primacy over the Mental Capacity Act 2005 and it is not appropriate for doctors and social workers to pick and choose which to use. Two tests were identified for the assessor to apply as to eligibility for DOLS. Firstly the assessor will need to consider whether, in his opinion, a hospital would detain the patient under the Mental Health Act 1983. Secondly the assessor must apply a “but for” test by considering whether, but for the physical complaint, the individual would need to be detained in hospital. If the only effective reason for detention is the need to treat the physical condition then the patient will be eligible to be deprived of his liberty under DOLS.

In our case the Court held that, but for the diabetes, GJ would not need treatment in hospital for his mental disorder. Therefore sectioning under the MHA was not appropriate so DOLS could be used to deprive him of his liberty to ensure safe compliance with the insulin regime. The Judge concluded that, whilst the nursing care, monitoring and safe environment were aspects of the treatment of GJ’s self neglect which was a manifestation of his mental disorder, and thus within the package of medical treatment for that disorder, the application of the “but for” test showed that the reality was that he was being detained only to treat his diabetes.

The Judge rejected the argument that the assessor take an objective approach. So it is not a question of whether any doctor possibly would detain under section but what the individual assessor believes. If the assessor believes that the patient does meet the criteria to be detained under section then the only way that he can proceed with DOLS is to look at the purpose of detaining the patient and apply the “but for” test.

How well this subjective approach sits with the aims of providing certainty and primacy to the Mental Health Act and removing the ability to pick and choose regimes is open to debate. A clinician may prefer not to section for fear of damaging the therapeutic relationship. It seems that doctors can avoid using the Mental Health Act by satisfying themselves, subjectively, that the detention criteria are not met. Challenges are likely where a patient’s lawyers believe such belief was irrational or based on an improper review of the evidence.

GJ’s case dealt with the eligibility assessment but there are six assessments which make up the authorisation process. There are challenges possible where it is not accepted that a patient has a mental disorder, lacks capacity or where a proposed deprivation of liberty is not considered to be in their best interests. This is very much a developing area which we will be following closely.

The judgement was handed down on 20 November and the neutral citation is

[2009] EWHC 2972. Please contact us if you need more information.

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