Manchester University Hospitals NHS Foundation Trust v JS & Anor (Schedule 1A Mental Capacity Act 2005)

The court is concerned with the appeal by Manchester University Hospitals NHS Foundation Trust (‘the Trust’) from the decision of HHJ Burrows (‘the Judge’) on 18 April 2023, when he refused the application by the Trust for orders in the Court of Protection. Permission to appeal was granted on 21 June 2023 on all grounds.

The respondents to the appeal are the young person who is the subject of these proceedings, JS, age 17 years, through her litigation friend the Official Solicitor, and Manchester City Council (‘the local authority’). The respondents oppose the appeal. In addition, there are two interveners, MIND and the Secretary of State for Health and Social Care (‘SHSC’). JS’s mother was notified of this appeal but did not take any steps to participate. The proceedings regarding JS are continuing to be heard by the Judge in which the mother takes an active part.

In summary, the appeal concerns the interpretation of Schedule 1A to the Mental Capacity Act 2005 (MCA 2005) and the basis upon which the court sitting in that jurisdiction should determine ineligibility. In one sense this appeal is academic as the situation has moved on for JS, she is now detained pursuant to s3 Mental Health Act 1983 (MHA 1983). However, the issues in this appeal may arise again in this case and, in any event, there is a wider interest in the appeal.

In accordance with rule 20.14 Court of Protection Rules 2017 (COPR) the appeal will only be allowed if the decision of the judge was wrong or unjust due to a procedural error. The appellant submits the judge was wrong.

The court has had the benefit of detailed written and oral submissions from counsel for each of the parties and two interveners, MIND and SHSC. The court is extremely grateful for the depth and eloquence of those submissions.

The wider issues that arise in this case are, sadly, not unusual and have been highlighted in a number of judgments, most recently by the President of the Family Division, Sir Andrew McFarlane in Re X (Secure Accommodation: Lack of Provision) [2022] EWHC 129 (Fam) a judgment designed, as he set out in paragraph 1, to ‘shout as loud as [the court] can’ about the shortfall in provision ‘in the hope that those in Parliament, Government and the wider media will take the issue up’. Although that case concerned an application for secure accommodation under s 25 Children Act 1989 (CA 1989), the shortages of suitable accommodation to meet the needs of young people who are being deprived of their liberty applies in a wider context. It is not a new issue (see former President of the Family Division, Sir James Munby, in Re X (A Child) (No 3) [2017] EWHC 2036 (Fam). Much of what was said in that case applies today, nearly six years later with little, if any, evidence of change.

As the President observed in Re X (Secure Accommodation: Lack of Provision) (ibid) at [42] ‘Despite the regular flow of judgments of this nature over recent years, it is, at least from the perspective of the experienced senior judges who regularly deal with these cases, a matter of genuine surprise and real dismay that the issue has, seemingly, not been taken up in any meaningful way in Parliament, in Government or in wider public debate.’

In this case no party suggested that JS was in a placement that met her needs, including those who cared for her. There are repeated references in the records of a mixed adult acute mental health ward being wholly unsuitable for her. Those caring for her were ill equipped to manage her extreme behaviours that not only put JS but also others at high risk of serious harm. There was no other placement for her.

I agree with the observations made by other judges as set out between [28] – [41] in Re X (Secure Accommodation: Lack of Provision) (ibid). The situation remains very difficult and challenging for the young people concerned and their families; for the staff in the hospitals who are having to manage these difficult and dangerous situations, when they are ill equipped and not trained to do so; and for the wider community, as it can often bring whole wards and departments in hospitals to a standstill due to the drain on resources and the disruption these situations cause. In addition, these cases take up scarce judicial court time and resources, with consequent delays for other cases being heard.

In Re X (Secure Accommodation: Lack of Provision) (ibid) at [59] the court was informed the Secretary of State for Education accepted that cross government action was required. I understand the government has in the past month set up a high-level cross departmental group to look at this, drawn from Departments of Education and Health. It is hoped this step will help improve the situation which is causing so much harm to some of the most vulnerable young people in society.

JS has a diagnosis of autistic spectrum disorder (ASD), attention deficit hyperactivity disorder (ADHD), learning disability and an attachment disorder.

JS was admitted to a Tier 4 CAMHS unit on 16 December 2022, age 17 years. The admission was initially an informal admission. JS was assessed as having capacity and became an informal patient under s131 MHA 1983. That admission was changed on that day to be for assessment under s 2 MHA 1983.

JS was discharged home on 4 January 2023. Two days later she absconded from home on 6 January 2023 and ran in front of moving traffic. She was taken to A&E, absconded again and was taken to a place of safety under section 136 MHA 1983.

Following a review by the relevant assessment centre and a discussion with Dr A she was not considered suitable for inpatient admission and was discharged home.

On 7 January 2023 JS stole a large amount of paracetamol and took these in overdose. JS’s mother called the police who took her to hospital under s136 MHA 1983 where she was admitted.

JS was detained under s 2 MHA 1983 on 8 January 2023 and admitted to a general hospital. That lapsed on 5 February 2023 and JS remained on the ward subject to the same restrictions.

An application to the Court of Protection was made by the Trust on 10 February 2023 to seek authorisation for her continued deprivation of liberty.

At that time, JS was represented within those proceedings by her mother as litigation friend.

The application was listed on 21 February 2023. The Judge heard the oral evidence of Dr K, consultant psychiatrist, who was JS’s treating clinician. Declarations were made under s15 MCA 2005 that JS lacked capacity to make decisions as to whether or not to remain in hospital, the restrictions in place, medical treatment including medication and where she should live. The Judge ordered under s16 MCA 2005 that it was in her best interests to remain and be cared for in the hospital and authorised the deprivation of her liberty under s4 MCA 2005.

At that hearing the Judge raised the issue of whether JS was ineligible under the MCA 2005 and sought further submissions from the parties. Pending his determination of that issue he accepted the court had jurisdiction.

On 24 February 2023 the court re-authorised the deprivation of liberty until 27 February 2023, when JS was discharged from hospital, and directed written submissions by 13 March 2023.

On 2 March 2023 JS was taken to the hospital by the police pursuant to s136 MHA 1983, following an attempt to harm herself.

On 6 March 2023 the Trust confirmed that JS had been detained under s 2 MHA 1983. JS remained in hospital for two weeks before being transferred to the Tier 4 placement on 16 March 2023.

JS’s s 2 was due to lapse on 31 March 2023. The Tier 4 placement arrangement was that JS would remain as an informal patient pursuant to s5(2) MHA 1983, which gives the doctors the ability to detain her for up to 72 hours.

On 18 April 2023 JS was further detained following her causing damage to the ward. JS was placed in holds and taken to the intensive nursing suite and later returned to the ward. As JS was expressing her wish to leave a decision was made for JS to be placed on s5(2) MHA 1983.

In his judgment dated 18 April 2023 the Judge determined JS was ineligible to be deprived of her liberty under the MCA 2005.

On 19 April 2023 JS was reviewed and detained under s 2 MHA 1983.

On 5 May 2023 JS was placed on s 3 MHA 1983 and moved placement. The case has continued to be considered by the Judge, with the next review due on 4 September 2023.

The purpose of introducing Schedule 1A MCA 2005 was, in part, to promote a consistent framework for detention of people in hospital for medical treatment of mental disorders who were objecting to that treatment. The policy behind Schedule 1A is such patients, with or without capacity, who were considered to require detention for the purposes of medical treatment for mental disorders should be treated in the same manner.

As regards the interface between the MHA 1983 and MCA 2005 neither Act is to have primacy over the other. The choice as to which Act is used will turn on the relevant decision-maker’s consideration of the options that are available.

There are different frameworks to prevent the arbitrary deprivation of someone’s liberty including:

In the SHSC’s written submission he provided a very helpful overview of the scope of s 2 and 3 MHA 1983 which is set out below:

These were introduced into the MCA 2005 through the Mental Health Act 2007. This was in order to close the gap in the law where incapacitated compliant mental health patients were being unlawfully deprived of liberty in hospital because they did not meet the MHA 1983 criteria but were not free to leave.

Schedule A1 provides the administrative procedure to authorise such confinement in hospitals and CQC registered care homes. In circumstances that do not fall within that procedure, the Court of Protection’s powers to deal with deprivation of liberty in other circumstances are under s 4A, 16, 16A MCA 2005.

Both the judicial and administrative procedures are subject to the provisions under Schedule 1A MCA 2005 which provides the framework for the interface between detention under the MCA 2005 and MHA 1983.

Schedule 1A MCA 2005 establishes that certain categories of people cannot be deprived of their liberty under the MCA 2005, or places restrictions on what deprivations of liberty may be authorised under the MCA 2005. These provisions determine whether that person is eligible or not.

Schedule 1A sets out five situations, referred to as ‘cases’, where arrangements which deprive a person of their liberty may be considered between the MCA 2005 and MHA 1983. Cases A-D concern those already detained under the MHA 1983, which did not apply in this case. This case concerns Case E.

P is within the scope of the Mental Health Act if-

As Schedule 1A governs both the judicial and the administrative authorisation procedures it applies to

Schedule 1A does not govern s4B MCA 2005 which, if the conditions in that section are satisfied, authorise a person to deprive P of their liberty while a decision is ’being sought from the court’ (s4B(7) MCA 2005).

The MHA Code of Practice, which is a statutory guidance issued under s.118 MHA, discusses the definition of ‘medical treatment for mental disorder’ and ‘appropriate medical treatment’ as follows:

Section 3 MHA 1983 provides:

The provisions in Schedule 1A were the subject of careful scrutiny by Charles J in GJ v The Foundation Trust [2009] EWHC 2972 (Fam).

In that case GJ was the subject of a Standard Authorisation, and detained in a hospital against his will under the authorisation. Whilst there, he was treated for diabetes and for his mental disorder. The treatment for his mental disorder took the form primarily of care and support. He was also prescribed various medications for his mental disorder but was never forced to take them against his will whilst subject to the Standard Authorisation.

The question was whether he was ineligible to be dealt with via the MCA 2005 on the ground that his circumstances fell more properly within the scope of the MHA 1983 and that he objected. Charles J made it clear at paragraph 59 that ‘it is not lawful for medical practitioners referred to in [the MHA 1983], decision makers under the MCA, treating doctors, social workers or anyone else to proceed on the basis that they can pick and choose between the two statutory regimes as they think fit having regard to general considerations (e.g. the preservation or promotion of a therapeutic relationship with P) that they consider one regime preferable to the other in the circumstances of a given case’.

In GJ the primary focus of argument was on the court’s approach to the proper application of the word ‘could’ in paragraph 12 (1) of Schedule 1A MCA 2005 and its meaning in the phrase ‘an application in respect of P could be made under s3 or s3 MHA 1983’. He set out the rival contentions and his conclusions as follows:

Charles J continues, when considering paragraph 5(3) Schedule 1A, as follows:

This was the test followed by the Judge and which is the subject of this appeal.

In this appeal the parties have agreed the sequence of questions advanced by the Official Solicitor that distil the issues in Schedule 1A Case E, namely:

I agree these key questions provide a useful structure to aid practitioners and judges who have to navigate these choppy waters within a legal framework that could have been expressed with more clarity.

Ms Mulholland K.C. seeks to challenge the Judge’s decision on two grounds (1) the judge wrongly concluded that P was ineligible within the meaning of Schedule 1A MCA 2005 on the basis that she was within the scope of the MHA 1983 and (2) the Judge wrongly concluded that there was a relevant instrument that authorised P to be a mental health patient.

In relation to the first ground her submissions can be summarised as follows:

The test contended for in GJ by the First and Second Respondents in that case is the more appropriate test where, Ms Mulholland submits, ‘the Court is to pitch itself against the views of experienced clinicians’, it would have more certainty and could properly be referred to as the ‘responsible clinician’ test.

Ms Mulholland submits the adoption of the decision maker test in accordance with GJ leads to a ‘…counter-intuitive outcome. It cannot be right that a vulnerable young person who seeks the protection of the Court emerges with a decision which is contrary to her best interests and is, potentially, damaging to her’.

Turning to the second ground of appeal; that the Judge wrongly concluded there was a relevant instrument that authorised P to be a mental health patient. Ms Mulholland submits that in reality JS was accommodated in hospital because it was considered unsafe for her to return home in the absence of a robust package of care.

The local authority required time to put that package of care in place and in the intervening period it was considered safer for JS to be in a hospital setting. That was the purpose, it was not so she could be given medical treatment for her mental health or otherwise. Any medical treatment was either consequent on her being in an unsuitable placement or would have been administered to her irrespective of where she was residing. Her discharge was dependent on the availability of the package of care not the completion of any treatment plan.

Ms Mulholland submits this is demonstrated by the fact that JS was ‘accommodated on an acute adult medical ward (not a psychiatric or mental health ward) run by an NHS Trust that employed no mental health staff’. She submits the order under s 16(2)(a) MCA 2005 authorised the Trust to prevent JS from leaving hospital through the use of supervision, physical restraint and oral sedative medication. It was not a mechanism, submits Ms Mulholland, for the court to authorise JS being accommodated in hospital so that she could receive medical treatment for a mental disorder.

Ms Mulholland agreed the three key questions posed by the Official Solicitor provides a useful framework; taking them in turn.

First, in considering whether JS is a mental health patient, Ms Mulholland submits it is necessary for the court to consider whether she was (a) receiving medical treatment for mental disorder, and, if so, what that treatment was and (b) what the purpose was of JS being accommodated in hospital.

The Trust accepts JS’s diagnoses of autism spectrum disorder (ASD), attention deficit hyperactivity disorder (ADHD) and learning disability (LD) meet the criteria of JS having a mental disorder. It is accepted JS was receiving some medical treatment for her mental disorder while in hospital but Ms Mulholland submits that JS being required to remain in hospital with round the clock supervision could not amount to medical treatment for mental disorder. If anything, Ms Mulholland submits, the detention in hospital made JS’s symptoms and manifestations worse as she continued to self-harm, express suicidal ideation, damage property and injure staff. Ms Mulholland submits the Judge failed to address the purpose for which JS was being accommodated in hospital.

Ms Mulholland contends the purpose was not to receive medical treatment for mental disorder and her date of discharge was dependent on when resources would be available for her in the community. She submits the physical and medical sedation was required because JS was in an unsuitable environment. The only reason JS was in hospital was due to the strain on resources, as was acknowledged by the Judge in his judgment below (at [44] – [45]). As a consequence, she submits, JS was not a mental health patient and there could not have been a relevant instrument authorising JS to be a mental health patient.

There is no issue between the parties as to the second question: is JS an ‘objecting’ mental health patient; JS did object.

The third question, could JS be detained under s3 MHA 1983? If not, she was not ineligible within the meaning of Schedule 1A MCA 2005 and the Court of Protection had jurisdiction. Ms Mulholland submits the court needs to consider first whether JS could be detained under s3 MHA 1983, and then whether the criteria for detention under s3 are met. She accepts for the purposes of MCA 2005 the decision maker is either the supervisory body for a standard authorisation or a Court of Protection judge for an order under section 16 MCA 2005. She submits the Judge considered the matter in the judgment below through the prism of JS’s treatment rather than analysis of s 3 and as a result fell into error.

In her written submissions she raises the issue of a ‘stalemate’ where there is a dispute between the decision maker under the MHA 1983 and MCA 2005. She submits an adapted GJ test should be adopted where the MCA 2005 decision-maker interferes with the MHA 1983 decision maker only ‘if their decision is not logical or rational’. This is not a measure of negligence but much more akin to a public law test; it asks whether the decision should be interfered with. This would, she submits, avoid the stalemate situation. She invites the court ‘not to overrule GJ but to distinguish it, and to equip decision makers with the tools to manage the inevitable ‘stalemate’ that arises from its application in cases such as this’.

The Official Solicitor opposes the appeal. Mr Allen submits that the two grounds of appeal can be readily conflated to one ground: did the judge err in concluding that JS was ineligible by virtue of MCA 2005 Schedule 1A? He submits the leading case is GJ and Schedule 1A paras 5, 12, 16 and 17 determine case E eligibility.

Taking the key questions outlined above, he submits that in relation to the first question, is the person a ‘mental health patient’ this means in accordance with Schedule 1A paragraph 16 ‘a person accommodated in a hospital for the purpose of being given medical treatment for mental disorder’. It requires the MCA 2005 decision maker to determine what is the purpose of hospital confinement; is it to give treatment for physical or mental disorder? Often the treatment is for both physical and mental health issues, hence the rationale of Charles J to adopt the ‘but for’ test: ‘but for’ the need for the package of physical treatment should P be detained in hospital? If the answer is ‘no’, the person is a physical health patient and eligible. If the answer is ‘yes’ because of the need for treatment of mental disorder, the decision maker needs to proceed to the second question.

Mr Allen acknowledges that it is not always straightforward to distinguish between treatment for mental and physical ill-health. Paragraph 17 Schedule 1A assists, stating ‘medical treatment’ has the same meaning as in the MHA 1983. Section 145 (1) MHA 1983 provides that this includes ‘nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care’ and explains at s145(4) ‘medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent, a worsening of the disorder or one or more of its symptoms or manifestations’. ‘Mental disorder’ has the same meaning as in the MCA Schedule 1A paragraph 14 which refers to the meaning in the MHA 1983, s1 MHA 1983 defines mental disorder as ‘any disorder or disability of mind’ excluding drug or alcohol dependency.

As a consequence Mr Allen submits first, medical treatment is broadly defined but in relation to mental disorder it must have the purpose of alleviating or preventing a worsening of the disorder or one or more of its symptoms or manifestations. It requires the purpose of the treatment to be to alleviate or prevent a worsening. Chapters 23 and 24 of the MHA Code provide further explanation which, he says, supports his submission. Second, treatment for mental disorder is not limited to treating an ‘underlying’ or ‘core’ mental disorder. It includes addressing its manifestations, as summarised by Charles J in GJ in [52], demonstrating the breadth of the MHA 1983 and its purpose insofar as medical treatment for mental disorder is concerned. Examples from previous cases illustrate the point, such as feeding was considered treatment for autism, dialysis was treatment for personality disorder and why treating wounds self-inflicted as a result of mental disorder also falls within the definition.

Turning to the second key question whether JS is an objecting mental health patient, Mr Allen notes that Schedule 1A paragraph 5 (6) and (7) are broadly drafted and include consideration of P’s behaviour. This breadth is reflected in both the DoLS Code (at paragraph 4.46) and the MHA Code (at paragraph 13.51). The reasonableness of the objection is irrelevant and decision makers should err on the side of caution, and if in doubt treat the person as objecting.

Finally, the third key question; ‘could’ the person be detained under MHA 1983? The Official Solicitor supports the GJ test as determined by Charles J. Parliament entrusted the eligibility decision to the Deprivation of Liberty Safeguards assessor and ultimately the Court of Protection judge. The suggested change contended by the appellant is not supported by the Official Solicitor as it risks greater uncertainty and satellite litigation. Mr Allen submits ‘It also conflicts with the aim of case E which is to put P on an equal footing with their capacitous counterpart.’ It risks undermining the safeguards of the MHA 1983 as there is a risk they would be routinely denied to those lacking capacity. The ‘what the decision-maker thinks’ test adopted in GJ means each decision-maker must consider the circumstances and reach their own decision based on the situation and available evidence. The reasoning of each can legitimately be probed by the other but in the final analysis neither can be compelled to change their decision.

Mr Allen submits the risk of stalemate is reduced as the statutory assumptions in Schedule 1A paragraph 12 play a key role in ensuring such reasoning is properly based. As Charles J observed in GJ at paragraph 58 the statutory assumptions assume that an alternative solution is not available under the MCA 2005 and aim to equate the position of P with that of their capacitous counterpart.

Part of this includes requiring the MHA 1983 decision-maker to assume that the MCA 2005 is not available . In GJ Charles J dealt with this at [46]:

These assumptions are required only for mental health patients who are, or are to be, confined to hospital. As Mr Allen observed, removing the MCA 2005 presents the decision-maker with a stark choice: either the person is confined under the MHA 1983 or they are not confined at all. It provokes them to consider explicitly P’s capacitous counterpart for whom similarly the MCA 2005 is not available. Based on the nature and degree of P’s mental disorder, the risks arising, the options available, and P’s objections: the question is does P meet the MHA 1983 grounds? If not, they cannot be deprived of their liberty in a hospital.

He submits the proper application of the statutory framework and statutory assumptions that apply to both sets of decision-makers serve to reduce, if not avoid, the risk of any gap developing between the two procedures.

In the event of a dispute, each decision-maker can legitimately probe the reasoning of the other. When a party, usually a hospital Trust, applies to the Court of Protection for authorisation to deprive liberty it will need to convince the judge that P is not ineligible. Evidence of the reasoning of the MHA decision-maker should be provided as part of the evidence in support of the application. In the interim, pending that decision, provided the stringent conditions are met, s4B MCA 2005 provides interim authority to deprive liberty whilst the court makes directions and determines P’s eligibility. Subject to any appeal the parties are likely to accept the Court’s determination on eligibility.

As Mr Allen notes, this case demonstrates how in practice some people have fallen through the gap in the procedures prescribed by Parliament and it is not limited to young people. The MHA Code paragraph 13.69 provides ‘In the rare case where neither the Act nor a Dols authorisation nor a Court of Protection order is appropriate, then to avoid an unlawful deprivation of liberty it may be necessary to make an application to the High Court to use its inherent jurisdiction to authorise the deprivation of liberty’.

In relation to this case Mr Allen submits JS was confined to a MHA registered hospital for the purpose of being given medical treatment for mental disorder. He submits this is clear from the care plan of restrictions dated 9 February 2023. As a result, JS was a mental health patient. JS was objecting to being accommodated and to treatment for her mental health disorder. Having considered the written and oral evidence, the Judge correctly decided that based on the statutory assumptions JS ‘could’ be detained under s3 MHA 1983.

Ms Sharron, on behalf of the local authority, supports the Official Solicitor’s analysis. She rejects the appellants’ submission that the Judge failed to apply the criteria under section 3(2) MHA 1983 or that he failed to give sufficient weight to the clinical opinion when applying the statutory criteria.

She submits that at [81], [88], and [90] of the judgment the Judge addresses section 3(2) MHA 1983 dealing with JS’s mental disorders, the nature and degree of those orders and why detention in hospital was appropriate for treatment of those disorders.

The Judge clearly weighed in the balance Dr K’s written and oral evidence, in particular at [42], [69], [70], [71] and [88] of the judgment. He did not disagree what was appropriate in terms of JS’s care and treatment, only in relation to what the legal implications of it were. Dr K’s evidence was that what they were providing did not meet the threshold under the MHA. The Judge disagreed and gave his reasons.

At [91] the Judge addresses s 3(2)(c) MHA 1983 in terms of why detention in hospital was necessary, referring to JS’s health and safety or the protection of others noting ‘The medical treatment she did receive as a detained patient in hospital was necessary to keep her safe and to prevent her from absconding or harming herself’. The treatment could not be provided unless JS was detained because, as noted by the Judge ‘There was not a readily available alternative when she was receiving it’.

Section 3 (2) (d) MHA 1983 is addressed by the Judge at [69] – [71], [92] and [97] of the judgment. The Judge sets out at [67] – [71] how the treatment that JS was receiving meets the definition of treatment in accordance with s145 MHA 1983. There was no issue before the court that the measures set out in the care plan were necessary and appropriate.

As Ms Sharron emphasises, the issue was whether the provisions in the care plan represent treatment for mental disorder which was necessary for JS to be detained in order to receive it. In addition to the provisions in s145 MHA 1983, Ms Sharron relies on the MHA 1983 Code of Practice:

Ms Sharron submits the psychotropic medication, mental health reviews, nursing, restraint and therapeutic containment that the care plan provided, which should be considered holistically, was intended to alleviate or prevent a worsening of the symptoms and manifestations of JS’s mental health disorders. As she observed, ‘Whilst the treatment in the care plan may not have been the optimum treatment plan for [JS], no party sought to suggest that it was not, in and of itself, necessary and in [JS]’s best interests, given the lack of alternative available, and the risk to [JS] if she was discharged without suitable care being in place’.

Ms Sharron referred the court to one entry to illustrate her point. On 28 January 2023 after a particularly difficult incident when JS tried to run off twice, she had to be restrained, additional security staff had to be called, medication was administered and the mental health team were called. The record notes ‘they didn’t turn up as they were short staffed’. Additional medication was administered under physical restraint, there were ‘10 security guards with a female support worker to hold and comfort her. She should be seen and cared for by MH team, as staff in assessment unit are not trained to handle mental health issues….’ There are similar entries on 29 and 31 January 2023 and the staff who cared for her recognised she was inappropriately placed in an acute ward area.

Ms Sharron submits ‘appropriate treatment’ under s 3(2)(d) is subject to the provisions in s3(4) MHA 1983 which provides ‘In this Act, references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which are appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case’.

The MHA 1983 Code of Practice provides further explanation

At the time of JS’s detention, Ms Sharron submits, there were no alternatives available, the consequences to her would be severe, giving rise to a risk of significant self-harm or even death, unless she was detained, until a safe discharge plan could be put in place. She submits it is not uncommon for patients to be detained under MHA 1983 to remain subject to s3 until such time as a suitable discharge placement is available.

Ms Sharron rejects the appellant’s submission that the treatment JS received was coincidental to being in a safe environment. She submits the evidence shows little change in the care JS was receiving when her s2 lapsed. There was no obvious change to the care plan and rejects any suggestion that JS was being provided with ‘hotel type’ services in the hospital, illustrated by just one example, the steps that had to be taken by the staff on 6 February 2023 to prevent JS securing a ligature. The risks remained very high for JS, they were largely caused due to her mental disorders and she needed the provisions in the care plan and to remain in hospital due to the high level of risk to JS.

As regards the test in GJ, Ms Sharron submits the ‘but for’ test applies to the first question, namely whether JS is a mental patient. The ‘decision maker’ test refers to the third question, namely whether JS could be detained under the MHA 1983 s2-3.

On behalf of the SHSC Ms Kelly limits her written and oral submissions to assist the court on the framework of Schedule 1A MCA 2005. In her helpful analysis she agrees with the submissions of the Official Solicitor and local authority as to the legal framework.

If it is proposed that a person should be detained in hospital but authorisation has not been given under the MCA 2005 or MHA 1983, she submits professionals should meet and discuss the position in the spirit of co-operation to seek a resolution. Consideration should be given to what can be put in place to support the person in the community pursuant to s117 MHA 1983 and/or Care Act 2014 duties. She submits ‘It cannot be an appropriate outcome for people to remain de facto deprived of their liberty in hospital without legal authorisation’.

The helpful submissions on behalf of MIND provided some important context and highlighted the difficulties in the application of the legal framework which could have been better expressed, taking into account the stretched resources in the community. There is a need for the construction of Schedule 1A that makes clear: (1) who is making the decision; (2) what test they are applying; and (3) what should happen when there is disagreement between professionals or organisations. MIND supports the test regarding Schedule 1A as determined by Charles J in GJ at least in respect of the test to decide which regime should be used for a person not currently subject to either the MHA 1983 or MCA 2005.

Sadly, the circumstances that exist in this case reflect the wider problem of an alarming number of cases which involve legal issues that arise when a young person is deprived of their liberty where there are insufficient suitable places in the community. The Nuffield Family Justice Observatory has published research analysing data regarding applications under the inherent jurisdiction seeking orders that authorise deprivation of liberty relating to children. The latest data reveals that there are about 117 new applications per month, 60% relate to children who are 15 years and over, about 70 children a month within that age range. (Footnote: ¹) Many of these cases involve significant difficulties about the suitability of placements the young people are in.

In the end it was far from clear whether the appellant was actually challenging the test. In her skeleton in response Ms Mulholland invites the court ‘not to overrule GJ but to distinguish it, and to equip decision makers with the tools to manage the inevitable ‘stalemate’ that arises from its application in cases such as this’. There was no basis to distinguish it. Charles J clearly set out the principles as to how the test should be applied, recognising that the application will be fact dependent on the circumstances of each case.

I agree with the Official Solicitor that the two grounds of appeal can sensibly be merged into one, namely: did the Learned Judge err in concluding that JS was ineligible by virtue of MCA 2005 Schedule 1A?

The focus of Ms Mulholland’s submissions was the failure by the Judge to deal with the relevant parts of s 3(2) MHA 1983.

In his careful and well-reasoned judgment the Judge addressed each of the three key questions the parties agree provide a helpful framework to consider these issues, namely:

Was JS a mental health patient? As the Judge noted in [22] of his judgment, her care plan remained the same as it had been when she was subject to s2 MHA 1983 noting ‘with exactly the same purpose namely to treat [JS’s] challenging behaviour, largely by physical containment and the use of restraint both by physical intervention and medication.’ After detailing the medication the Judge stated [23] ‘It seems entirely obvious to me those treating [JS] considered her behaviour to be a manifestation of her mental disorder. This pharmacological treatment was intended to combat it’. Put simply, he concluded the purpose had not changed, she remained a mental health patient. As set out above, medical treatment is broadly defined but in relation to mental disorder it must have the purpose of alleviating or preventing a worsening of the disorder or one or more of its symptoms or manifestations. Treatment for mental disorder is not limited to treating an underlying or core mental disorder, it included addressing its manifestations. The conclusion the Judge reached was entirely justified on the evidence.

At [6] of his judgment the Judge identified her mental health diagnoses; ASD, ADHD, learning disability and an attachment disorder. He had evidence from the registered nurse that confirmed she was medically fit for discharge on 10 January 2023. The statement detailed evidence of what nursing was being provided to JS, that she continues to self-harm, wishes to end her life and the detailed incidents that had taken place since the s2 lapsed, including seeking to swallow a plastic cup and trying to self-ligature with a shower cord. The nurse’s statement confirmed JS was not permitted to leave her room due to the risk of absconding and the severe risk of the consequences of that.

The statement from JS’s treating psychiatrist, Dr K, confirmed at JS’s review on 25 January 2023 the clinical view is that ‘much of her difficulties relate to ASD, ADHD and LD’. Later in the statement, he states these neurological disorders ‘affect her ability to manage emotional, psychological distress, manage daily distress and relationships, changes to environment, limit her ability to adapt to changes. Her rigid thinking prevents her from considering other options…these therefore manifest in agitation and self-harm. She isn’t able to identify triggers and cannot remember incidents of severe agitation. She is impulsive. All this makes her behaviour unpredictable. When she is in an agitated state she isn’t able to think and consider the risks that her actions pose. She is not able to appraise her arousal and control herself and this therefore has required that restrictions are placed to maintain her safety in hospital’. This evidence is all connected to JS’s mental disorder. In the letter from the Trust to the social worker on 26 January 2023, it sets out how the risks relate to her neuro-developmental difficulties, again confirming that it is her mental disorder that gives rise to these risks and why the hospital needed to put in place the care plan.

The care plan includes medical treatment for the manifestation of her mental disorder, including physical and chemical restraint, regular room review by the nurse to remove any risky objects that JS could use to harm herself or others, restriction on leaving the hospital and a high level of supervision. The care plan provides detailed provision for sedative medication in the event JS’s behaviour is not managed any other way. When undertaking the GJ ‘but for’ test the detail in this care plan is clearly not treatment for physical health but treatment for mental disorder.

The appellant submits the Judge did not ask the question regarding s3 MHA 1983, however the notes of Dr K’s oral evidence make clear the Judge was probing this issue in connection with the care plan and that the treatment in it relates to her mental disorder, which Dr K acknowledged. The Judge explored with Dr K in his oral evidence why the provisions of the MHA 1983 had not been used.

As regards the second key question, there is no issue between the parties that JS objected.

Turning to the third key question, could JS have been detained under the MHA 1983 s2-3, the Judge considered this issue in some detail.

At [67] and [68] he set out s 3(2) and (4) MCA 1983. At [69] the Judge analysed the purpose of JS’s care plan, concluded at [71] that JS’s behaviours were ‘manifestations of her mental disorder’. As he states ‘…put another way, [JS’s] mental disorder causes her to abscond from safe environments, such as her home or hospital. It causes her to place herself at great risk of danger. It causes her to injure herself using sharp objects or taking overdoses. She has done this with alarming regularity. Nothing that those responsible for her care have been able to do has prevented her from doing so. However, that is what they were trying to do, and their treatment was aimed at that’.

The Judge set out his reasoning at [90] – [97] as follows:

The Judge was entitled to reach the conclusions he did on the evidence he had. He anxiously considered the provisions of s3, the evidence he had available to him and clearly set out his conclusions with admirable clarity and reasons in support. He was not wrong, did not fall into error and there is no other basis upon which this appeal should be allowed. Accordingly, the appeal is dismissed.

The court has had written and oral submissions about what has been termed ‘the stalemate’ that could arise in these situations. The Official Solicitor, the local authority and the SHSC submit that if the legal framework is applied correctly there should be no stalemate or gap. If there is it relates to a gap in practice, rather than the legal framework.

Any judge who sits in this area will have encountered these difficult cases involving young people where an issue has arisen as to the appropriate legal framework under which the deprivation of liberty is sought to be authorised. There remain some misunderstandings, as there was in this case. The Trust case record referred to the continued authorisation of JS’s deprivation of liberty when the s 2 lapsed prior to issuing these proceedings was under common law. Ms Mulholland rightly accepted that was incorrect.

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.

As regards the issue of stalemate more generally, the practical suggestions outlined by Ms Kelly on behalf of the SHSC provide a useful road map for the parties to resolve any issues. They are set out below. Ms Kelly takes issue with what Ms Mulholland stated was one of the issues that caused the stalemate in this case, that the Trust did not have any approved mental health professionals (‘AMHPs’) to proceed with any application under the MHA 1983. This perhaps illustrates Ms Kelly’s first point below, as far as Ms Kelly is aware there is no evidence in this case that any attempt was made to contact an AMHP to try and resolve this issue.

Ms Kelly’s practical suggestions are:

I can 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.

Although not advocated by the SHSC or MIND, the other parties submitted the inherent jurisdiction could, in certain circumstances, be resorted to. For those under 18 years that happens within the principles outlined by the Supreme Court in Re T (A Child) (Appellant) [2021] UKSC 35. Against the chronic shortage of provision of secure children’s homes in England and Wales, it was determined in that case that the inherent jurisdiction of the High Court can be used to authorise the deprivation of liberty of a child who meets the criteria in s 25 Children Act 1989 (CA 1989) in a place other than approved secure accommodation, subject to safeguards.

For 16 and 17 year olds there is concurrent jurisdiction with the Court of Protection. There is provision in The Mental Capacity Act 2005 (Transfer of Proceedings) Order 2007 (SI2007/1899) for the transfer of proceedings in relation to such children between the Court of Protection and a court having jurisdiction under the CA 1989.

As Senior Judge Hilder noted in Bolton Council v KL [2022] EWCOP 24 at [46] the Court of Protection has been receiving and determining applications for authorisation of deprivation of liberty in the living arrangements of 16 and 17 year olds both with and without a care order in place. A recent increase has been noted of applications being made for this cohort of young people, as well as applications which begun as proceedings under the inherent jurisdiction that are transferred to the Court of Protection.

Drawing these threads together the following matters may provide a guide in these difficult cases:

I do not underestimate the challenges these cases cause in circumstances where there is a lack of appropriate placements for these vulnerable young people, however it is important there is a clear understanding about the respective legal frameworks that govern these decisions so that the obligations under the ECHR are complied with, in particular Article 5.