Hi all,
Colleagues and I have been having a debate about this.
Some feel the JS case restores the primacy of the MHA from GJ, so making AM v SLAM redundant. Others feel AM v SLAM is still relevant.
I would be interested to hear other’s opinions, to see if there is a consensus out there.
JS in my view doesn’t do anything other than restate (in a clearer way) the questions to be asked that were set down in GJ. Charles J made clear in AM v SLAM that he didn’t actually mean in GJ to say that the MHA had primacy in general, save where the person is objecting to admission / treatment, at which point the MHA has to be used. Of course, what on earth a genuine choice as between the MHA and MCA is meant to mean in the non-objecting situation where the two regimes are essentially impossible to compare is a different question. To the extent relevant, this is my updated take on the interface: https://www.mentalcapacitylawandpolicy.org.uk/shedinar-the-dread-mha-mca-interface/.
Much more interesting / important, I think, is the impact of the UT RB / SF case decided after JS about the the situation where the only care / treatment that the person is having is keeping them physically safe - at that point, the MHA should not be available because of the ‘appropriate treatment’ test in s.3. But if the person lacks capacity to make decisions about care / consent to their confinement in hospital is DoLS available as there’s no such restriction? Even if they are objecting?
I agree. The MHA should be used to detain if its criteria are met, but if the patient isn’t objecting to being a mental health patient then maybe the MHA necessity test isn’t met and DOLS is an alternative. On assessing whether either regime is less restrictive, nobody (so far) has argued with my unevidenced assertion on the Interface between MHA and MCA page that “Nobody knows what the third point means in practice.” 
The underlying question is whether you would want to detain someone lacking capacity as a mental health patient when no appropriate treatment is available. If you wouldn’t, then the mismatch between the MHA detention criteria and the MCA eligibility criteria wouldn’t matter. If you would want to, and the person is objecting, then you might have to argue that it’s pure confinement without medical treatment. What do you think?
Sadly - and indeed the RB / SF case is a good example - there are bucket loads (to use a technical term) of cases where people are being confined where there’s no medical treatment, and in effect nothing other than keeping them, it is hoped, safe in some quite minimalistic way. DoLs doesn’t have any statutory requirement that there be appropriate treatment on offer, until and unless someone gets a court here to read that in applying Rooman v Belgium. On one view, I’d be very happy if they could, because there is no obvious reason that that’s confined solely to ‘mental health’ detention in a classical sense. But it would really flag up that we think about ‘social care detention’ in a very different way, because what ‘appropriate treatment’ is on offer, say, where an older person with dementia is in a care home?
Thanks Alex and Jonathon for your responses, much appreciated. I agree with you both, particularly on the comparison of the two regimes.
Jonathan, I assume are you referring to J Charles’ view, in AM v SLAM, on the necessity test and Para 12 of Sch 1A?
Yes I think so, though I’ve not read it recently.
I was very happy to see Alex’s view on JS, as I suspect you were David. I had a similar debate earlier this year at our AMHP legal updates. There was a view that JS indicated a judicial move to ‘restoring’ the primacy of the MHA in general. I disagreed. For what it’s worth, I think a lot of the difficulty generated by the “primacy of the MHA” comes from a failure to appreciate in what context this term has been deployed. That the MHA has “primacy when it applies”, has been misunderstood due to a failure to include that this has been discussed in the context of Case E (MCA Schedule 1A) – i.e. where the person is a mental health patient, is objecting and falls within the scope of the MHA. In the cases where it has arisen, parties have been considering alternative frameworks, DoLS or the inherent jurisdiction of the court. My understanding is (and as ever I stand to be corrected) that in these cases the court has essentially affirmed the boundaries set by the law. Decision makers can’t pick and choose between frameworks with an objecting patient. The MHA has “primacy” over the other frameworks, precisely because schedule 1A excludes DoLS and inherent jurisdiction is an instrument of last resort and wouldn’t be used where the MHA applies. The MHA is therefore “the magnetic north” (to coin a phrase used in the Northamptonshire case) in this context. This is quite different to a generalised position of primacy in all contexts where the grounds under the MHA are met (and therefore the situation of compliant incapacitated patients). Indeed, Justice Theis in JS states: “As regards the interface between the MHA 1983 and MCA 2005 neither Act is to have primacy over the other.” (para 30). This starting point is then modified by the exclusions stated in Schedule 1A and as she says “consideration of the options that are available.”. The questions to be asked from GJ are part of the means to consider what options are available.
I share Alex’s concern about the choice to be determined in the situation of compliant incapacitated patients.
Thanks for your message John. I agree completely, context is key.
As to the compliant incapacitated patient, one of the things I will be sure to take from JS is the need to consider what is practically available, not only care/accommodation but whether DoLS itself is a realistic available option.