The so-called ‘Bournewood gap’ was identified in R v Bournewood Community and Mental Health NHS Trust, ex parte L,53 which concerned an adult patient with severe autism who lacked the capacity to consent to medical treatment. The patient, ‘L’, was transferred to hospital after he became agitated and exhibited self-injurious behaviour at a day centre. The consultant in charge of L’s care decided that it was in his best interests that he be admitted to hospital informally pursuant to section 131 of the MHA. Because L was
50
Admitting a patient under the MHA produces ‘iatrogenic risks’, i.e., additional risks contingent on compulsory care and treatment. For example, there are risks from medication, stigma, and the disempowering nature of mental health services. See, e.g., J. Langan, ‘Assessing Risk in Mental Health’ in P. Parsloe (ed.) Risk Assessment in Social Care and Social Work, London: Jessica Kingsley Publishers, 1999, p153; J. Langan and V. Lindow, ‘Risk and Listening’ (2000) 101 Openmind: the Mental Health Magazine 14.
51
Sections 4A and 4B, and Schedules A1 and 1A.
52
Section 50 and Schedules 7, 8 and 9.
53
110 compliant and made no attempt to leave the hospital, the consultant thought that compulsory admission under Part II of the MHA was unnecessary. We can infer from this that L’s risk profile was not grave enough to engage the MHA. Consequently, L was kept on an unlocked ward, but if he made any attempt to leave he would be sectioned. He was therefore in something of a legal ‘no man’s land’.54 After the Court of Appeal held that L’s informal admission was unlawful, the respondent NHS Trust appealed to the House of Lords, which had to address two questions: (i) was L detained against his will, and (ii) if so, did the hospital have lawful authority to justify L’s detention?55 The House of Lords held that the only basis on which a hospital could lawfully admit a patient with mental disorder who lacks capacity but does not manifest any objection to his admission is on the basis of the common law doctrine of necessity.56 In L’s case, their Lordships decided by a bare majority that he had not been detained because he had been held on an unlocked ward and was notionally free to leave at any time. In any event, because the NHS Trust had acted in accordance with L’s best interests in an urgent intervention justified by the doctrine of necessity, there would have been a legal basis for his detention at common law. Speaking for the majority, Lord Goff said that it was ‘plainly the statutory intention that...patients [admitted informally and lacking capacity] would indeed be cared for, and [would] receive such treatment for their condition as might be prescribed for them in their best interests.’57 It would therefore
54
P. Bartlett, ‘Informal Admissions and Deprivation of Liberty under the Mental Capacity Act 2005’ in L. Gostin et al (eds.), Principles of Mental Health Law and Policy, Oxford: OUP, 2010, at p386.
55
See M.A. Jones, ‘Detaining Adults who Lack Capacity’ (2007) 4 Journal of Professional Negligence 238.
56
See, e.g., T v T [1988] 1 All ER 613; Re F (Mental Patient: Sterilisation) [1990] 2 AC 1; Re A (Medical Treatment: Sterilisation) [1999] 53 BMLR 66; Airedale NHS Trust v Bland [1993] AC 789.
57
111 defeat the purpose of the MHA and the common law if patients in L’s position were falsely imprisoned without lawful authority.
The Bournewood case suggests that the common law still has a residual role in play in plugging gaps in the MHA regime. Yet the significance of its ratio was diminished somewhat when L’s case reached the European Court of Human Rights (ECtHR) in HL v United Kingdom.58 Here, the applicant – now referred to as ‘HL’ – relied on Articles 5(1) and 5(4) of the European Convention on Human Rights (ECHR) to argue that his informal detention in hospital had contravened his right to liberty. The ECtHR agreed. First, it found that HL had been ‘deprived of his liberty’ for the purposes of Article 5(1) because the healthcare professionals had exercised ‘complete and effective control’ over his care and movements at all times, meaning that he was subject to ‘continuous supervision and was not free to leave [the hospital]’.59 The ECtHR adopted the reasoning from Lord Steyn’s dissenting speech in the House of Lords, in which His Lordship had said that the suggestion that L was free to go was ‘a fairy tale’.60 Secondly, the ECtHR said that HL’s deprivation of liberty was not ‘in accordance with a procedure prescribed by law’ for the purposes of Article 5(1)(e). There was therefore a breach of Article 5(1) because there is a ‘striking...lack of any fixed procedural rules by which the admission and detention of compliant incapacitated persons is conducted’ under the English common law.61 The Court pointed to the ‘significant contrast’ between the ‘dearth’ of regulation in respect of patients in HL’s position on one hand and the ‘extensive network of safeguards’ which applies to psychiatric committals 58 (2005) 40 EHRR 32. 59 HL v UK, at para.91. 60
Ex parte L, per Lord Steyn (dissenting) at 495.
61
112 under the MHA on the other.62 It concluded that in HL’s case there was nothing to prevent decision-makers from taking arbitrary and therefore unlawful decisions to deprive a patient of his liberty. Finally, Article 5(4) ECHR requires that a speedy procedure be in place so a person deprived of his liberty can challenge the lawfulness of his detention in court. The ECtHR said that the means by which HL could have brought such proceedings – the writ of
habeas corpus and judicial review – placed the bar ‘so high as effectively to exclude any
adequate examination of the merits of the clinical views as to the persistence of mental illness justifying detention.’63 For that reason, there had also been a violation of Article 5(4) ECHR in HL’s case.
The ECtHR’s decision in HL v United Kingdom had serious policy implications: any public hospital or care home which held patients in Bournewood-style circumstances was effectively responsible for continuing violations of Article 5. To address this, the Department of Health launched a consultation exercise to establish how it might close the Bournewood gap.64 It opted for a framework that would be conceptually distinct from the MHA. According to a Briefing Paper published in 2006, the Department of Health anticipated that the new procedure would not apply in circumstances where the MHA could be used,65 thereby reserving the compulsory powers for patients who satisfy the risk formula. The proposed framework would provide legal safeguards for vulnerable people deprived of their
62 Ibid. 63 HL v UK, at para.139. 64
Department of Health, ‘Bournewood Consultation: The Approach to be Taken in Response to the Judgment of the European Court of Human Rights in the “Bournewood” Case’, March 2005.
65
113 liberty in hospital who lack capacity but do not object to their detention.66 This new regime came into effect on 1st April 2009.
3.2.2. The DOLS Framework
The mechanics of the DOLS are complex and confusing. According to the DOLS Code of Practice, the Safeguards cannot apply to people while they are detained in hospital under the MHA.67 While that is true, the link between DOLS and the MHA is less straightforward than that. Indeed, various commentators have condemned the drafting of the DOLS framework as ‘hideous’68 and ‘overcomplicated’.69 Generally, the MCA 2005 does not authorise any person to deprive any other person of his liberty,70 thereby establishing a presumption that patients within the purview of that legislation cannot be detained in hospital. This clearly contrasts with the MHA. The only way in which a person can deprive
another person of his liberty under the provisions of the MCA 2005 is either where he is giving effect to a relevant court order71 or the deprivation of liberty is authorised by the DOLS under Schedule A1.72 In the latter case, a deprivation of liberty will only be authorised
66
Ibid, at p1.
67
Ministry of Justice, Mental Capacity Act 2005 – Deprivation of Liberty Safeguards: Code of Practice to Supplement the Main Mental Capacity Act 2005 Code of Practice, London: TSO, 2008, at para.1.11.
68
Bartlett, supra n.54, at p392.
69
L. Series, ‘Deprivation of Liberty Safeguards: a Haphazard Affairs’, The Guardian, Monday 2nd April 2012. Available at: http://www.guardian.co.uk/social-care-network/2012/apr/02/deprivation- liberty-safeguards-improvements. Accessed: 28th January 2013.
70
MCA 2005, s.4A(1).
71
MCA 2005, ss.4A(2)(a), 4A(3), 4(4) and 16(2)(a). Section 4B of the MCA 2005 also creates a legal basis on which one person can deprive another person of his liberty if (i) he is seeking a decision in relation to any relevant issue from the court, and (ii) the deprivation is necessary in order to give life-sustaining treatment to the other person.
72
114 where (i) a person is detained in a hospital or care home for the purpose of receiving care or treatment in circumstances which amount to a deprivation of liberty, (ii) there is a standard or urgent authorisation in force, and (iii) that authorisation applies to the detained person and the hospital or care home in which he is held.73
Whether a person is deprived of his liberty is a matter of fact. While there will not be any dispute that a patient held under section 3 MHA is deprived of his liberty, the issue is controversial for the purposes of the DOLS. According to the DOLS Code of Practice, the appropriate use of restraint on a patient will fall short of a full deprivation of liberty.74 Yet the distinction between mere restraint and a deprivation of liberty which engages Article 5(1) ECHR is difficult to draw in the abstract. The DOLS Code of Practice only provides examples of factors that may be relevant to this assessment.75 Baker J was equally equivocal in CC v KK and Another,76 where His Lordship said that the court must take account ‘of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.’77 As a result of these considerations, what will amount to a deprivation of liberty varies on a case-by-case basis. If a person actively resists or protests against his admission to hospital,78 is subject to complete and effective control79 or
73
Paras.1(1)-(4) of Part 1 of Sch.A1 to the MCA 2005.
74
DOLS Code of Practice, supra n.67, at para.2.9.
75
Ibid, at para.2.5.
76
[2012] EWHC 2136 (COP).
77 CC v KK and Another, per Baker J at para.86. 78
JE v DE and Surrey County Council [2006] EWHC 3459 (Fam); Hillingdon London Borough Council v Neary (by his Litigation Friend the Official Solicitor) and Another [2011] EWHC 1377 (COP).
79
115 continuing one-to-one supervision by healthcare professionals,80 or is constantly kept on a locked ward and prohibited from leaving,81 his circumstances are likely to amount to a deprivation of liberty. By contrast, if a person lives at home in the care of a loving family,82 can move freely within an unsecure setting,83 enjoys regular outings and attends education or training sessions,84 or is subject to restrictions which would not exceed what would be reasonably required to protect a patient in comparable circumstances from harming himself,85 then he is unlikely to have been deprived of his liberty.
Assuming that a person lacking capacity has been or will be deprived of his liberty in a hospital or care home, the DOLS provide a legal framework to authorise such an arrangement. If the managing authority of a hospital wishes to deprive a patient of his liberty, it must apply to its supervisory body for a ‘standard authorisation’86 in accordance with Schedule A1 to the MCA 2005.87 A managing authority may also give itself an ‘urgent authorisation’88 in circumstances where the need to deprive the relevant person of his liberty is so urgent that there is no time to apply for a standard authorisation or to wait for
80
A Local Authority v H [2012] EWHC 49 (COP).
81
Storck v Germany (2005) 43 EHRR 96; see also Baker J in CC v KK and Another at para.100.
82
Re A, Re C [2010] EWHC 978 (Fam).
83
HM v Switzerland (2002) 38 EHRR 314.
84
Surrey County Council v P [2011] EWCA Civ 190.
85
RK (by her Litigation Friend the Official Solicitor) v BCC and Others [2011] EWCA Civ 1305; Chester West and Cheshire Council v P [2011] EWCA Civ 1257; Nielsen v Denmark (1988) 11 EHRR 175.
86
See generally Part 4 of Sch.A1 to the MCA 2005.
87
Para.2 of Part 1 of Sch.A1 to the MCA 2005.
88
116 such an application to be determined.89 In the case of a standard authorisation, the managing authority must apply to its supervisory body where the relevant person is (i) about to be or is already accommodated in a hospital or care home, (ii) likely to be a detained resident within the next twenty-eight days, and (iii) likely to meet all of the qualifying requirements set out in Part 3 of Schedule A1 to the MCA 2005.90 There are six qualifying requirements: age,91 mental health,92 mental capacity,93 best interests,94 eligibility,95 and no refusals.96 Once the supervisory body receives an application for a standard authorisation, it must ensure that the relevant person is assessed in order to determine whether he meets all of these qualifying criteria.97 If so, the supervisory body is under a duty to give a standard authorisation.98
3.2.3. The Qualifying Requirements: the Interface between the DOLS and the MHA
Determining whether the relevant person meets the qualifying criteria is perhaps the most challenging aspect of the DOLS regime. If the relevant person does not meet all of the
89
Paras.74 and 76 of Part 5 of Sch.A1 to the MCA 2005. An urgent authorisation applies for no more than seven days (para.78(2) of Part 5 of Sch.A1 to the MCA 2005) but it may be extended for a further seven days on request (paras.84 and 85 of Part 5 of Sch.A1 to the MCA 2005).
90
Para.24(1)-(5) of Part 4 of Sch.A1 to the MCA 2005.
91
Para.12(1)(a) of Part 3 of Sch.A1 to the MCA 2005.
92
Para.12(1)(b) of Part 3 of Sch.A1 to the MCA 2005.
93
Para.12(1)(c) of Part 3 of Sch.A1 to the MCA 2005.
94
Para.12(1)(d) of Part 3 of Sch.A1 to the MCA 2005.
95
Para.12(1)(e) of Part 3 of Sch.A1 to the MCA 2005.
96
Para.12(1)(f) of Part 3 of Sch.A1 to the MCA 2005.
97
Para.33 of Part 4 of Sch.A1 to the MCA 2005.
98
117 criteria it follows that he should either be treated voluntarily or ‘sectioned’ under the MHA. The qualifying criteria therefore establish the interface between the DOLS and the MHA. It is true that some of the criteria are easier to assess than others; for example, the relevant person must be least eighteen years of age to satisfy the age requirement,99 and the ‘no refusals’ criterion precludes a standard authorisation where the relevant person has refused some or all of the proposed treatment in an applicable advance decision100 or where his admission will conflict with a valid decision of a donee of a lasting power of attorney or a deputy appointed by the court.101 The mental health and mental capacity requirements are similarly straightforward: the relevant person must be suffering from a mental disorder within the meaning of section 1(2) of the MHA102 and must lack capacity to decide whether he should be accommodated in the relevant hospital or care home.103 Things get trickier when it comes to the best interests requirement. Here, the assessor must be satisfied that it is (i) in the relevant person’s best interests for him to be deprived of his liberty, (ii) necessary for the relevant person to be detained in order to prevent harm to him, and (iii) a proportionate response to the likelihood of the relevant person suffering harm and the
99
Para.13 of Part 3 and para.34 of Part 4 of Sch.A1 to the MCA 2005.
100
Para.19(1) and (2) of Part 3 and para.48 of Part 4 of Sch.A1 to the MCA 2005. On lasting powers of attorney, see MCA 2005, ss.9-14.
101
Para.20(1)-(3) of Part 3 and para.48 of Part 4 of Sch.A1 to the MCA 2005. On the appointment of deputies by the court, see MCA 2005, ss.15-21.
102
Importantly, the exclusion of learning disabilities from the MHA’s definition of ‘mental disorder’ under s.1(2A) of the 1983 Act does not apply to the DOLS. See para.14(1) of Part 4 and para.35 of Part 4 of Sch.A1 to the MCA 2005.
103
Para.15 of Part 3 and para.37 of Part 4 of Sch.A1 to the MCA 2005. According to ss.2(1) and 3(1) of the MCA 2005, a person lacks capacity where he is unable to make a decision for himself because of an impairment of, or a disturbance in the functioning of, his mind or brain, which leaves him unable to (a) understand the information relevant to a decision, (b) retain that information, (c) use or weigh that information as part of the decision-making process, or (d) communicate his decision.
118 seriousness of that harm.104 The wording here bears a striking similarity to the MHA’s risk formula, suggesting that there must also be some element of risk under the DOLS framework before the managing authority can receive a standard authorisation. Yet there are two crucial differences which reveal the boundary between the Safeguards and the MHA. First, Schedule A1 to the MCA 2005 refers only to detention which is necessary to prevent harm to the relevant person. This is clearly a narrower and less urgent conception of
risk than that which applies under the MHA. We can infer from paragraph 16(4) of Schedule A1 that the Safeguards are designed to apply to mentally disordered patients whose lack of capacity puts them at risk of neglecting their own welfare. This contrasts with the Part II of
the MHA, whose provisions anticipate that the compulsory powers should be deployed to reduce or extinguish much graver risks to the patient and the community, such as deliberate self-harm or violence. Secondly, the DOLS provisions specifically incorporate the concept of risk into the assessment of the relevant person’s best interests. The MCA 2005 provides that where a person lacks capacity the decision-maker should consider, inter alia, the person’s
past and present wishes and feelings, his beliefs and values, and any other factors that would likely influence his decision in order to give effect to his best interests.105 The decision-maker should therefore aim to take a decision that is broadly commensurate with what the patient might decide in the circumstances if he had had the capacity to do so.106
104
Para.16(2)-(5) of Part 3 and paras.38 and 39 of Part 4 of Sch.A1 to the MCA 2005. See also, MCA 2005, s.4.
105
MCA 2005, s.4(6)(a)-(c).
106