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Neutral Citation Number:	2013 UKUT 365 AAC
Reported Number:
File Number:	HM 1538 2013
Appellant:	AM
Respondent:	South London & Maudsley NHS Foundation and Secretary of State For Health
Judge/Commissioner:	Mr Justice Charles
Date Of Decision:	06/08/2013
Date Added:	03/09/2013
Main Category:	Mental health
Main Subcategory:	All
Secondary Category:	Mental health
Secondary Subcategory:	All
Notes:	Reported as [2014] AACR 13. Detention under Mental Health Act 1983 – whether existence of Mental Capacity Act 2005 relevant to exercise of powers under Mental Health Act The appellant had a history of mental illness. She lived with her daughter who was her primary carer. The community health team removed the appellant to a hospital by a warrant issued under the Mental Health Act 1983 (MHA) so that she could be assessed under section 2. The First-tier Tribunal (F-tT) refused the appellant’s application for discharge. A further application was made before a second F-tT. At the hearing it was unsuccessfully argued on the appellant’s behalf that she should be discharged as she could stay in hospital on a voluntary basis. The issue before the Upper Tribunal (UT) was the proper approach to be taken by decision-makers when applying the “necessity test” under the MHA including the possible application of the Mental Capacity Act 2005 (MCA) and the Deprivation of Liberty Safeguards (DOLS). Held, allowing the appeal, that: 1. to be compatible with Article 5(1)(e) of the European Convention on Human Rights the relevant sections of the MHA had to be applied on the basis that there was no less restrictive way of achieving the proposed assessment or treatment: see Varbanov v Bulgaria [2000] ECHR 31365/96, Enhorn v Sweden [2005] ECHR 34; (2005) 19 BHR 222 and R (Countryside Alliance) v Attorney General [2007] UKHL 52; [2008] 1 AC 719 (paragraphs 15 to 16); 2. in the circumstances defined therein DOLS provided an alternative basis upon which to authorise the deprivation of the liberty of incapacitated persons for their assessment or treatment in hospital and therefore a decision-maker when applying the “necessity test” under the MHA should consider whether DOLS ought to be used in the particular circumstances of each case (paragraphs 28 and 34); 3. the approach involved a progression of reasoning. First the decision-maker had to decide whether admission to hospital was appropriate. If it was necessary then three further question would generally arise: (1) whether the relevant person had the capacity to consent to the arrangements in section 131 of the MHA; (2) whether the hospital could rely on the provisions of the MCA lawfully to assess or treat them and (3) how the existence of a choice between the MHA and the MCA and its DOLS was to be exercised (paragraphs 35 to 75); 4. the F-tT had erred in law by either not addressing whether the appellant would voluntarily remain in hospital, or not explaining with sufficient clarity what it had decided on this issue and why (paragraph 88). The case was remitted to the First-tier Tribunal for rehearing by a differently constituted panel.
Decision(s) to Download:	[2014] AACR 13bv.doc