MK: Deprivation of Liberty and Tier 4 Beds, Re
[2024] EWHC 1553 (Fam)
Manchester University Hospitals NHS Foundation Trust v JS & Anor (Schedule 1A Mental Capacity Act 2005)
10 August 2023
[2023] EWCOP 33
Court of Protection
A hospital wanted to keep a troubled teenager (JS) but wasn't sure if they could use the right legal rules. A judge decided that, because there was a different set of rules better suited to JS's situation (the Mental Health Act), they didn't need the other rules to keep her safe. The problem is there aren't enough good places in the community for kids like her, so the judge's decision, although legally correct, also highlights a broader societal problem.
Key Facts
- •Appeal by Manchester University Hospitals NHS Foundation Trust against HHJ Burrows' refusal to grant orders for continued deprivation of liberty of 17-year-old JS.
- •JS has ASD, ADHD, learning disability, and attachment disorder.
- •JS was initially detained informally under s131 MHA 1983, then under s2 MHA 1983, and ultimately under s3 MHA 1983.
- •The appeal concerns the interpretation of Schedule 1A to the Mental Capacity Act 2005 (MCA 2005) and ineligibility for deprivation of liberty under the MCA 2005.
- •The case highlights the shortage of suitable accommodation for young people with mental health needs.
- •The Judge ruled JS ineligible for deprivation of liberty under MCA 2005, finding she could be detained under s3 MHA 1983.
Legal Principles
Schedule 1A MCA 2005 determines eligibility for deprivation of liberty under MCA 2005 where mental health issues are involved.
Mental Capacity Act 2005, Schedule 1A
Neither MHA 1983 nor MCA 2005 has primacy; the choice depends on the decision-maker's assessment of available options.
Mental Health Act 1983 and Mental Capacity Act 2005
The 'but for' test (from GJ v The Foundation Trust) determines whether a person is a 'mental health patient' under Schedule 1A Case E: Would the person still need to be detained if their physical health issues were absent?
GJ v The Foundation Trust [2009] EWHC 2974 (Fam)
'Could' in Schedule 1A paragraph 12(1) means whether the decision-maker believes the criteria for detention under s2 or s3 MHA 1983 are met.
GJ v The Foundation Trust [2009] EWHC 2974 (Fam)
Treatment for mental disorder under MHA 1983 includes addressing manifestations of the disorder, not just the underlying condition.
Mental Health Act 1983, s145; MHA Code of Practice, Chapters 23 & 24
The inherent jurisdiction of the High Court can authorize deprivation of liberty for children who meet s25 Children Act 1989 criteria, even without secure accommodation.
Re T (A Child) (Appellant) [2021] UKSC 35
Outcomes
Appeal dismissed.
The Judge correctly applied the legal framework of Schedule 1A Case E, as interpreted in GJ v The Foundation Trust, finding JS ineligible for deprivation of liberty under MCA 2005 because she could be detained under s3 MHA 1983.