AM v South London & Maudsley NHS Foundation & Anor

Factual and Procedural Background

This opinion concerns an appeal regarding the appropriate legal framework for the detention and assessment of a 78-year-old female patient ("Appellant") under the Mental Health Act 1983 ("MHA") versus the Mental Capacity Act 1985 ("MCA") and its Deprivation of Liberty Safeguards ("DOLS"). The Appellant was removed from her home under a warrant issued pursuant to the MHA for assessment and admitted to hospital under section 2 MHA. The First-tier Tribunal ("FTT") initially refused her discharge, concluding that detention was necessary for her assessment and treatment. The Appellant appealed the FTT decision, challenging whether her detention under the MHA was warranted given the possibility of authorisation under the MCA and DOLS, which might provide a less restrictive alternative. The Upper Tribunal allowed the appeal and remitted the case to a differently constituted FTT for reconsideration applying the clarified legal approach.

Legal Issues Presented

1. Whether the Appellant has the capacity to consent to the arrangements for admission and assessment under section 131 MHA.
2. Whether the hospital might lawfully rely on the MCA and its DOLS to assess or treat the Appellant instead of detention under the MHA.
3. How the existence of alternative statutory regimes (MHA versus MCA/DOLS) should be taken into account when applying the necessity test under the MHA for detention.
4. Whether the FTT erred in law by failing to properly address the factual issue of the Appellant's voluntary compliance with remaining in hospital for assessment or treatment.

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that if she is sufficiently compliant, her assessment and treatment could be carried out lawfully under the MCA and authorised by DOLS, making detention under section 2 MHA unnecessary and unwarranted.
• The Appellant submitted that the necessity test under the MHA requires consideration of whether the same objective of assessment or treatment could be achieved under the MCA regime in a less restrictive manner, effectively giving priority to the MCA/DOLS in such circumstances.
• The Appellant contended that the FTT failed to properly consider whether she had the capacity to consent to informal admission and whether she would comply with remaining in hospital voluntarily during assessment.

First Respondent's Arguments

• The First Respondent (NHS Trust) argued that the FTT's findings, when read with earlier decisions and evidence, supported a conclusion that the Appellant would not remain voluntarily in hospital due to influence from her daughters, thus placing her outside the "compliant incapacitated" category eligible for MCA/DOLS authorisation.
• They contended that if the Appellant would not be compliant, detention under the MHA was necessary and lawful.

Second Respondent's Arguments

• The Second Respondent (Secretary of State for Health) supported the view that the MHA necessity test requires consideration of less restrictive alternatives, including the MCA/DOLS, but emphasised that the FTT must assess the actual availability and applicability of the MCA regime.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed analysis of the interplay between the MHA and MCA/DOLS regimes in the context of deprivation of liberty for assessment or treatment of mental disorder. It recognized that while the MHA has traditionally had primacy, this primacy is not absolute and must be assessed on a case-by-case basis, particularly where the MCA/DOLS may provide a lawful alternative for compliant incapacitated persons.

The court accepted the categorization of patients into four groups based on compliance and capacity, focusing on the "compliant incapacitated" category relevant to this case. It emphasized that decision makers applying the MHA necessity test must consider whether the objective of assessment or treatment can be achieved by less restrictive means, including authorisation under the MCA/DOLS.

The court clarified that the First-tier Tribunal, while lacking jurisdiction to make decisions under the MCA/DOLS, must consider the availability and applicability of that regime as part of the necessity test under the MHA. This requires a fact-sensitive, judgmental exercise balancing the relative restrictiveness and practical availability of the two regimes.

A key factual issue identified was whether the Appellant would voluntarily comply with remaining in hospital for assessment and treatment, a prerequisite for the MCA/DOLS alternative to be viable. The court found that the FTT failed to adequately address or explain its findings on this compliance issue, which is critical to determining the correct legal framework.

In light of this, the court concluded that the FTT erred in law by not properly considering or providing clear reasons on the compliance issue, necessitating a remittal for reconsideration by a differently constituted FTT applying the clarified approach.

Holding and Implications

The appeal is allowed. The case is remitted to a differently constituted First-tier Tribunal to reconsider the application for discharge under the MHA, applying the legal approach set out in this decision.

The direct effect of this decision is that the lower tribunal must reassess the factual issue of the Appellant’s compliance with informal admission and treatment and consider the applicability and practical availability of the MCA/DOLS regime as part of the MHA necessity test. No new precedent is established beyond clarifying the interplay between the MHA and MCA/DOLS in the specific factual context of compliant incapacitated patients requiring assessment or treatment in hospital.