— Jane, a 17-year-old patient, had been detained under s2 on an acute medical ward following a paracetamol overdose. When the s2 expired her detention continued as before, purportedly under common law but in fact unlawfully, and an application was made to the court. The plan was to discharge Jane to her mother's in a few days once a care package was arranged. (1) The court decided that she lacked capacity in relation to residence, care and treatment and that, inappropriate as it was (the ward being mixed-sex, all-ages, non-psychiatric and non-CAMHS), it was in her best interests to remain for the time being, and it therefore authorised the plan in the interim. (2) The court subsequently considered "ineligibility" under Case E for MCA detention, which arises when a patient is within the scope of the MHA (essentially, when an MHA application could be made and the patient could be detained) and the patient objects to at least some of the mental health treatment. The team responsible for conducting gatekeeping assessments for Tier 4 in-patient units had decided she did not meet the MHA criteria, but when the matter goes to court it is for the judge to decide. The patient clearly objected. She met the MHA criteria: she needed to be nursed safely and medicated to address the effects of her mental disorder, and no alternative was yet available. The decision on using the MHA cannot be viewed in isolation from what is (or is not) available elsewhere at the time. The jurisdictional label (MHA, MCA, inherent jurisdiction, or common law) is irrelevant when the care plan and length of detention would be the same in practice. (3) To use the inherent jurisdiction would be inappropriate because there is no statutory gap to patch (Jane could and should have been treated under the MHA) and because to do so would provide an incentive to avoid using the MHA.
Full details available at: https://www.mentalhealthlaw.co.uk/Manchester_University_NHS_Foundation_Trust_v_JS_(2023)_EWCOP_12?id=140623-1332