# Case (MCA treatment for MHA patient). Norfolk and Suffolk NHS Foundation Trust v HJ \[2023\] EWFC 92

**URL:** <https://forum.mentalhealthlaw.co.uk/t/case-mca-treatment-for-mha-patient-norfolk-and-suffolk-nhs-foundation-trust-v-hj-2023-ewfc-92/1723>\
**Category:** MHLO updates\
**Created:** [14 July 2023 22:12 UTC](https://forum.mentalhealthlaw.co.uk/t/case-mca-treatment-for-mha-patient-norfolk-and-suffolk-nhs-foundation-trust-v-hj-2023-ewfc-92/1723 "2023-07-14T22:12:45Z")\
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**Author:** ![MHLO](https://forum.mentalhealthlaw.co.uk/user_avatar/forum.mentalhealthlaw.co.uk/mhlo/32/24_2.png) [@MHLO](https://forum.mentalhealthlaw.co.uk/u/MHLO)\
**Post date:** [14 July 2023 22:12 UTC](https://forum.mentalhealthlaw.co.uk/t/case-mca-treatment-for-mha-patient-norfolk-and-suffolk-nhs-foundation-trust-v-hj-2023-ewfc-92/1723/1 "2023-07-14T22:12:46Z")

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— HJ was detained under [MHA 1983 s3](https://www.mentalhealthlaw.co.uk/MHA_1983_s3 "MHA 1983 s3") but treatment under restraint for her constipation could not be provided under [MHA 1983 s63](https://www.mentalhealthlaw.co.uk/MHA_1983_s63 "MHA 1983 s63"). The trust asked the court to authorise deprivation of liberty; the judge in email correspondence expressed doubts; subsequently the trust and Official Solicitor changed their minds and agreed that the treatment did not involve deprivation of liberty. The judge decided: (1) The following principles apply: (a) only in exceptional cases will something amount to a further deprivation of liberty of someone already lawfully deprived of liberty; (b) this is because the usual position is that [Article 5](https://www.mentalhealthlaw.co.uk/Article_5 "Article 5")(1)(e) is not in principle concerned with suitable treatment or conditions; (c) the test is whether there is an unacceptable element of arbitrariness in the actions taken by a state body. (2) Applying that approach, proper and lawful exercise of clinical judgment will, save in exceptional circumstances, lack arbitrariness and will not amount to deprivation of residual liberty; partly that is because the trust owe a common law duty of care to the patient to provide appropriate treatment (the patient cannot be deprived of liberty by actions that the trust are required to take). (3) The [MCA 2005 s4](https://www.mentalhealthlaw.co.uk/MCA_2005_s4 "MCA 2005 s4") best interests process, [MCA 2005 s6](https://www.mentalhealthlaw.co.uk/MCA_2005_s6 "MCA 2005 s6") restraint limitations, MHA framework and [Mental Health Units (Use of Force) Act 2018](https://www.mentalhealthlaw.co.uk/Mental_Health_Units_(Use_of_Force)_Act_2018 "Mental Health Units (Use of Force) Act 2018") requirements are a sufficient procedural framework for [Article 8](https://www.mentalhealthlaw.co.uk/Article_8 "Article 8") purposes and do not need to be supplemented by a court order.

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Full details available at: [https://www.mentalhealthlaw.co.uk/Norfolk\_and\_Suffolk\_NHS\_Foundation\_Trust\_v\_HJ\_(2023)\_EWFC\_92?id=030723-2305](https://www.mentalhealthlaw.co.uk/Norfolk_and_Suffolk_NHS_Foundation_Trust_v_HJ_(2023)_EWFC_92?id=030723-2305)