Excellent case indeed. Those gluttons for punishment who need the full text can read it up here: AM v South London & Maudsley NHS Foundation & Anor | [2014] AACR 13 | Upper Tribunal (Administrative Appeals Chamber) | Judgment | Law | CaseMine
What a tangled web that has been woven for us. At the centre and suffusing ‘everything’ is ‘capacity’. Don’t start me up on ‘for what decision’ and how that is to be assessed, else I could be here all day! MHA capacity (in law) is a different test to Mental Capacity Act (2005). But nobody except me believes that - even if the evidence of the difference is in plain daylight.
But I’m reflecting on the ‘tangled web’. Before I became a doctor, I used to think that hospitals were places to treat very ill people who couldn’t be treated at home. When I became a doctor, I then learned that that wasn’t quite the case. My understanding was that they were also places for ‘social care’ for the not-so-ill. Then when I became a psychiatrist I realised that psychiatric facilities serve a major social care role. I was to be surprised that the MHA definition of ‘treatment’ was really about containment and social care. Some don’t even know that ‘medication’ is not in the definition of ‘treatment’ (S145). Medication is slipped in via the side door in S58.
Post-2005 the web of confusion expanded as the Mental Capacity Act (2005) aimed to consolidate a load of case law on capacity/consent. ‘People’ (aka mental health staff) had been sent on courses at much cost ever since. But - just a about 6 months ago I’m schooled by a senior nurse that a patient certain patient had capacity for everything. She had a partial point because the MCA states that everybody should be presumed to have capacity for everything. And so many doctors (and other staff) assume capacity even when there is significant reason from impairment to require a formal capacity test. Don’t start me up about what goes on in parts of Nothern Ireland (where very similar MH Order is treated ‘differently’).
Common sense has been largely replaced by case law. I read many judgments about mental health cases and think to myself ‘Isn’t this common sense - why did this reach the courts in the first place?’
But what’s ‘common’ to me is not common to ‘everybody else’. ‘Everybody’ does not read the law, think about it carefully and apply it - that’s my experience over the last 30 years.
If you’re a judge in the Supreme Court or Appeal Court, you’re unlikely to regularly visit psychiatric OPCS, PICUs, Acute Gen Psych wards, medium security or high security hospitals. I can safetly estimate that judgments become a philsophical exercise. As a judge ‘you decide’ the law and everybody else can clear off - like it or not. Judges don’t pick up the pieces and see the madness of infigthing - the attempts to massage the law out of proportion to fit what the ‘system’s’ needs.
So having gone round the houses a bit, I return home. DOLS was not designed for containing and treating people in hospitals. Arguments invited. The MHA was designed to contain very unwell people (aka detain them) in a hospital for treatment/assessment. But via the tangled web services are being forced do DOLS people in hospitals where the DOLS provisions simply cannot work.
If there are any judges on this forum, I formally invite you all to walk with me for one day in any psychiatric unit I may work at. See what you don’t see when you make those judgments. See real people - real suffering - then rethink DOLS and MHA decisions.
