Mental Health Act v Mental Capacity Act: How to avoid a deprivation of liberty claim

A finding that the detention of a teenager ('JS') with complex mental health issues was unlawfully deprived of her liberty highlights the importance of understanding the interaction between the Mental Capacity Act 2005 (MCA) and Mental Health Act 1983 (MHA).

Manchester University Hospitals NHS Foundation Trust v JS and others – the facts

JS was considered a risk to herself resulting in treatment at a specialist child and adolescent psychiatric unit. Unfortunately, in the days after discharge JS was twice detained under s.136 MHA following acts of self-harm and attempted suicide. JS was then detained under s.2 MHA to an adult medical ward in order to treat the physical consequences of an overdose.

JS remained on the adult ward for several weeks, even after her detention under s.2 MHA expired. During this time, she made further self-harm attempts, leading to prescriptions for anti-psychotic and anti-depressant medications and the introduction of a 'Care Plan of Restrictions.' The Hospital Trust made an application to the Court of Protection for an order under s.16 MCA; seeking declarations that JS should remain in hospital and subject to the strict restrictions of the care plan.

Manchester University Hospitals NHS Foundation Trust v JS and others – the judgment

After considering the legal mechanisms by which JS had been detained, HHJ Burrows found that JS had been unlawfully deprived of her liberty after the s.2 MHA authority had expired. This was notwithstanding his finding that JS had a clear lack of mental capacity, and that the existing care provision in hospital (while "sub-optimal") was the most suitable option for JS at the time.

In his judgment, HHJ Burrows explored the relationship between the MCA and MHA. He summarised the MCA as applying "to anyone over 16 lacking the capacity to make any decision…It is relevant to those receiving care or treatment outside Hospital, but also to those receiving care and treatment in a hospital for conditions that are not mental health conditions." The MHA, on the other hand, (as its name would suggest) specifically deals with mental health issues and "is mainly concerned with patients detained in Hospital". HHJ Burrows found that JS was within the scope of the MHA and should have been treated under this Act. JS was ineligible for detention under the MCA and so she had been unlawfully deprived of her liberty.

An appeal against HHJ Burrow's decision was heard and dismissed by Theis J in August this year. Theis J went on to endorse the practical advice suggested by the Secretary of State for Health and Social Care, in situations where MCA and MHA decisions are unclear (set out in paragraph 118 of her Judgment).

Manchester University Hospitals NHS Foundation Trust v JS and others – the impact

JS is now entitled to bring a claim for damages for the unlawful deprivation of her liberty. This will be particularly galling for the Trust as JS had previously been lawfully detained under the MHA and this detention could have continued. The potential claim has arisen solely because of a misunderstanding of how the MHA and MCA should be used.

It is paramount that, when making decisions as to detention, medical practitioners ensure they properly understand the legal framework using the guidance set out by the Court:

1. Treatment under the MHA is preferable to the MCA when:

• 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 plans are available.

2. The key benefits of detention under the MHA (when available) are:

• The MHA provides a framework of regulation for patients with complex mental health needs who require treatment in hospital, and the MCA cannot offer these same safeguards.
• The MHA puts power in the hands of medical professionals to deal with patient care, rather than the court.

Insurers may wish to consider drawing this guidance to the attention of any Insured who is required to make decisions on detention to prevent avoidable claims.