GJ v The Foundation Trust & Anor

The Mental Health Act 1983 has primacy over the Mental Capacity Act 2005 where the statutory criteria for detention under the 1983 Act are met. Decision-makers cannot choose between the regimes for administrative or therapeutic reasons.

For Case E under Schedule 1A to the 2005 Act, the decision-maker must determine whether, in his own view, the criteria for detention under section 2 or section 3 of the 1983 Act are met. The paragraph 5(3) inquiry requires a but for analysis of the packages of physical and mental-health treatment. If detention would not be necessary for the mental-health package without the physical treatment, the authorisation does not make the person a mental-health patient.

GJ lacked capacity to make decisions about his care, treatment and residence. He had vascular dementia, Korsakoff’s syndrome and diabetes requiring insulin. He was detained under the Mental Health Act 1983, later placed in a care home, and subsequently detained in hospital under standard deprivation-of-liberty authorisations made under Schedule A1 to the Mental Capacity Act 2005.

GJ challenged the later standard authorisation under section 21A. The central issues were the relationship between the two statutory regimes, the meaning of “could” in paragraph 12(1) of Schedule 1A, and whether the authorisation was for treatment of a mental disorder or only for treatment of diabetes.

1. The Mental Health Act 1983 had primacy. Decision-makers under both Acts had to proceed on the assumption that an alternative deprivation-of-liberty solution was unavailable under the Mental Capacity Act. They could not select the regime they considered preferable for general therapeutic or administrative reasons.

2. Under paragraph 12(1) of Schedule 1A, “could” required the decision-maker to ask whether, in his own view, the criteria in section 2 or section 3 of the 1983 Act were met and whether, if an application were made, the hospital would detain the person. The possibility test and the high-probability or effective-certainty test were rejected.

3. Paragraph 5(3) required attention to the reality of the purpose and result of the authorisation. The decision-maker had to identify the package of physical treatment and the package of treatment for mental disorder. He then had to ask whether, without the need for the physical-treatment package, detention in hospital would still be necessary, and whether the physical-treatment package was the only effective reason for detention.

4. Care such as nursing, monitoring and providing a safe environment could form part of treatment for a mental disorder where it treated a symptom or manifestation of that disorder. However, treatment of an unrelated physical condition was not treatment for mental disorder merely because the person’s mental disorder affected his ability to comply with it.

5. Applying that approach, GJ’s diabetes was unconnected with his mental disorders and its treatment was unlikely directly to affect them. Without the need to manage his diabetes, he would not have required detention in hospital for the mental-health package. The standard authorisations therefore authorised detention for diabetes treatment, not accommodation in hospital for treatment of a mental disorder. Consideration of GJ’s objection under paragraph 5(4) was consequently academic, although the judge stated that the objection requirement would also have been met.

6. The authorisations were upheld on the reasoning stated. The judgment also held that Case E did not cover deprivation of liberty in a care home or an order authorising transportation to a hospital or care home, although the Court of Protection had to consider whether such an order was appropriate in light of the position likely to arise on arrival.