When does the management of behaviour become medical treatment?

In Manchester University Hospitals NHS Foundation Trust v JS and others [2023] EWCOP 12 HHJ Burrows has given an important and strikingly clear judgment on the eligibility provisions in Schedule 1A Mental Capacity Act.   The facts sadly have much in common with many cases coming before the Court of Protection and/or the High Court.  

 “Jane”  was 17 years old and had autistic spectrum disorder, attention deficit hyperactivity disorder, a learning disability and an attachment disorder.   Jane posed  a danger to herself and was at risk of danger from others.   In early 2023, she had been discharged from inpatient treatment in a specialist child and adolescent psychiatric unit, where she had been treated informally, to live with her mother.  The next day she ran into traffic and was detained by the police under section 136.   Jane was assessed for admission under the Mental Health Act 1983 (MHA) but not detained.  

However two days later she was detained on a general hospital ward under section 2 MHA  for assessment and treatment, having taken an overdose of paracetamol. The plan was for her to be discharged to her mother's care with a package of support and services once she was medically fit for discharge. However, the s.2 order expired before the package could be put in place.  She remained on the ward while it was being arranged.    Jane was subject to various restrictions, because her behaviour could be challenging and aggressive, and because she had tried to abscond and self-harm by using sharp instruments, or swallowing batteries.   Jane was not permitted to leave the ward, she was supervised at all times, and she was on both anti-depressant and anti-psychotic medication. It was common ground that Jane was deprived of her liberty and it was now agreed that she  lacked the capacity to consent to her detention.      The Trust applied for an order under section 16 Mental Capacity Act 2005, authorising the arrangements in the care plan which gave rise to the deprivation of her liberty.

After the detention under section 2 expired Jane’s notes recorded that she was being detained “under common law”.  It was accepted that this was not a lawful justification.   HHJ Burrows  was very concerned about the potential use of the MCA in circumstances where Jane was in a hospital, receiving treatment that was plainly intended to combat her mental disorder.  Indeed he recorded his comment that he was “finding it difficult to see how the present care plan for Jane, which I was being invited to authorise under the MCA, was anything other than treatment for her mental disorder”.  Because Jane was due to be discharged imminently, the judge accepted jurisdiction under the MCA on an interim basis.  He was concerned however that the situation might recur and invited further submissions on the issue of eligibility.   He further 

“made it clear that the issue had to be determined because it is so important for clinicians and those providing care in any setting to understand the legal framework within which they operate. In particular, it is vital that NHS consultants, particularly psychiatrists, understand that the MCA and the MHA have to be used where but only where it is appropriate to do so. Furthermore, the inherent jurisdiction of the High Court is a “great safety net” that is used to bridge genuine gaps in the legislative framework, not something that should regularly be used as a matter of necessity (let alone convenience) where resources are inadequate to provide protection, or where professionals with aduty to choose the right framework, for whatever reason choose not to.” (52)

The judge had to decide whether Jane fell within Case E of Schedule 1A Mental Capacity Act 2005, which determines eligibility for detention under the MHA. This required consideration of:

• Whether Jane was “within the scope” of the MHA (paragraph 2)
• Whether the “instrument” (ie the court’s order) would authorise Jane to be a “mental health patient” (para 5) , defined in para 16 as  a patient accommodated in a hospital for the purpose of being medical treatment for mental disorder.
• Whether Jane objected to some or all of the treatment (para 5(4).

HHJ Burrows said it was “immediately clear” that the care plan for Jane on the ward was for medical treatment in the broad sense as defined by section 145 MHA: 

“it consisted in care, namely providing her with a safe place with nursing care.  The purpose of that care plan, including the use of restraint both physical and chemical was to ensure that Jane did not harm herself, or that she absconded away from the care setting in order to do so”.  

This was the case even though the treatment was not aimed at Jane’s core disorders, which would be likely only to be addressed by long term psychological and other therapies.   In an important paragraph (71) the judge said:

"However, in my judgment, in no meaningful sense could Jane’s behaviours outlined above be described as anything other than manifestations of her mental disorder. Or put another way, Jane’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 found that Jane’s physical resistance to her care plan made it “obvious” that she objected to the treatment.  

The key question was whether Jane “could” have been detained under the MHA (para 12(1b).   

 HHJ Burrows applied the judgment of Charles J in GJ v The Foundation Trust, a PCT & Secretary of State for Health [2009] EWHC 2972 (Fam.) in which Charles J concluded at [80] that the definition of “could” in para 12(1)(b) referred to the view of the decision-maker under the MCA (in this case the court).  Therefore the fact that Jane’s section 2 order had expired and that professionals who had seen her considered that she could not be detained was not the end of the matter.

 It was argued by the Trust that although Jane had a mental disorder, it was not of a nature or degree which made it appropriate for her to receive medical treatment for that disorder in hospital.  The judge rejected this, describing it as “plainly wrong”.   The medical treatment she received as a detained patient in hospital was necessary to keep her safe and there was no readily available alternative.  The judge also rejected the conclusion of the MHA assessments that inpatient care was neither available nor desirable because she could be treated in the community under the MCA.  This was also “plainly wrong”: Jane could only be treated in the community once a suitable package was available for her.

 The hospital’s view that detaining Jane under the MHA would be harmful to her mental health, as would her remaining in hospital.  This was invalid: Jane was detained by virtue of her care arrangements [94}:

“What jurisdictional label is placed on the care plan is immaterial to its restrictive nature, whether that be MHA, MCA, “common law”, the High Court’s inherent jurisdiction is irrelevant to whether she was detained for treatment. That was the care plan’s doing.”

Furthermore the choice of regime was immaterial to whether Jane remained in hospital longer than she needed to (in fact, had Jane been detained under s3 MHA, she would have been entitled to aftercare under section 117, a framework designed to reduce the overall time a patient remains in hospital).  In an important passage which is likely to be relied on in future cases, the judge said at [96]:

"There seems to be a belief, not just in this case but in others which I have heard recently, that the decision to use the MHA should be viewed in isolation fromwhat is available elsewhere at the time the decision to detain or not detain is taken. Ideally, a 17-year-old vulnerable young person would not be detained in a psychiatric facility, let alone a mixed adult general ward. However, where there is literally no option in which that young person will be safe, or as safe as possible in the circumstances, I cannot see how the MHA decision maker can avoid the decision I have had to make in this judgment. If the patient has to be detained for treatment for their mental disorder, and there is no alternative outside the hospital setting, and no other treatment plan available, then it seems clear to me the patient should not be detained under the MCA but rather under the MHA."

The judge recognised that there was an analogy between Jane’s case and some cases before the “National DOLS Court” where children with complex backgrounds sometimes found themselves in hospital settings because local authorities could not find suitable settings; and that there are cases where the High Court has to use its powers to protect those where there is no other power to keep them safe.    However in Jane’s case the MCA and MHA provided a clear legal structure where there is clear legal guidance as to which power should be used.  Jane was ineligible for detention under the MCA as she fell within Case E of Schedule 1A.  

The judge would have been reluctant to make use of the inherent jurisdiction had this been necessary.   The MHA was available and should have been used and there was no gap for the inherent jurisdiction to patch.  Furthermore, as he observed at [103]:

“the MHA is a long-established bespoke code dealing with the difficult regulation of the treatment of detained patients in Hospitals.   The use of the inherent jurisdiction or the MCA for that matter would have the perverse result of a Judge having to make decisions over the management of medical treatment when that code exists and is available for use. For the Court to assume that role would (a) place Judges in an impossibly difficult position and (b) act as an incentive for those entrusted with using the MHA, clinicians and Hospitals, not to use it.”

 Comment:  This is a very clear, logical and cogent exposition of a complex area of law that is tempting to put in the “too difficult” box.   The reminder that the decision as to whether a person “could” be detained under the MHA is one for the decision-maker under the MCA (in this case, the judge), even when there has been a decision not to use the MHA, is particularly important.    This is a clear message that the MCA should not be used to replicate the procedural safeguards of the MHA where this is available.

The judge’s comments about the use of the inherent jurisdiction are obiter.  However, they are also likely to have resonance.    

Perhaps the most important message of the case is that it is the care that matters, rather than the jurisdictional label.    This is reflected in the sad postscript to this case which also appears in the judgment.   Soon after her discharge to her mother's home, Jane self-harmed and was detained under section 136 by the police, whom the judge added "must be frustrated and concerned about being seen as a form of psychiatric triage in the community".   At the time of the judgment, Jane was back on a medical ward under section 2 MHA with a plan to discharge her again at the conclusion of the section.  Jane's mother, who is described as "loving and caring" emailed the judge "desperate about the safety of her daughter.  Apart from passing on her concerns to the increasingly large cast of public authorities involved in Jane's care, I was unable to provide her with any reassurance."