North Tees and Hartlepool NHS Foundation Trust & Anor v KAG & Ors [2024] EWCOP 38 (T3)
Whilst we are all waiting to see exactly what will happen next with the reform of the Mental Health Act (MHA), a recent case, (in which we acted for both NHS Trusts involved), highlights the importance of a sound understanding of the current MHA and its application, not least, to avoid the costs and delays of unnecessary court applications.
Whilst the legal position around the application of the MHA, particularly the interface with the Mental Capacity Act (MCA), can be complex, most of the time it is legally straightforward. In practice, however, there is all too often a tendency, where a person lacks capacity, to look at all care and treatment decisions through the prism of capacity, when it is the MHA, with its statutory safeguards, and not the MCA, that is the correct legal framework.
What was the case about?
This was a case where the required treatment, namely insertion of a PEG to provide clinically assisted nutrition and hydration (CANH), was treatment for the symptoms or manifestations of KAG's mental disorder.
Since KAG objected to the treatment, she was no longer eligible for authorisation under the MCA and so the only legal route for the treatment to be provided was under the MHA.
Whilst a MHA assessment concluded that KAG met the criteria for detention under s.3 of the MHA (admission to hospital for treatment), the s.3 application could not proceed due to an objection from the Nearest Relative. This necessitated an application being made by the Local Authority to displace the Nearest Relative, on the grounds that he was unreasonably objecting to the s.3.
Unfortunately, within the displacement proceedings (to which the Trusts were not parties), a confusion arose as to whether this was a 'Serious Medical Treatment' case, necessitating an application to the Court of Protection. This led to a stay of the displacement proceedings, with the Trusts being 'invited' to make an application to the Court of Protection.
Whilst the Trusts' position was clear from the outset, that the MHA was the appropriate legal framework and that a court application was not necessary, in practice, the Trusts were left with no option other than to apply to the court.
What did the court decide?
The Judge made a declaration, under the High Court's inherent jurisdiction, that in the event that KAG is detained under the MHA, the proposed treatment falls within s.145 and under s.63 of the MHA.
However, the judge made it very clear that the application was unnecessary:
'Before setting out my reasons for making the declaration, I must state clearly – as the Official Solicitor invited me to – that this application was not required. The AMHP rightly determined that the MHA was the correct legal framework to provide treatment to KAG for her mental disorder, including the provision of CANH, and that is the framework that should have been applied.'
Practical impact
As the judge noted, whilst in some cases where a person is detained under the MHA an application may be required if an issue arises as to whether treatment falls under the MHA and so 'where the scope of s.63 MHA is in question', this case however 'was not one of them'.
In particular, it was stressed that this judgment 'should not be taken as any sort of encouragement to statutory bodies to seek the court’s intervention where there is no uncertainty on the part of a treating Trust as to whether treatment can be provided under s.63 and s.145 MHA, even in the face of objection by a patient.'
What next?
Whilst the treatment provisions under the current MHA are likely to be amended, in the interim, it is important that any confusion/misunderstanding as to the current effect and application of the MHA is addressed without unnecessary court applications, which ultimately, are likely to lead to unnecessary costs and delays to treatment.
How we can help
Our national team of mental health specialists has extensive experience in advising health and social care providers and commissioners in relation to all aspects of the MHA and its treatment provisions and interface with the MCA.
We regularly provide bespoke training in relation to all aspects of the Mental Health Act, including issues arising out of Part 4 treatment and interface with the broader legal framework.
