I’m coming back to Best Interests Assessments and DoLs for a while now so excuse my indulgence but it is something that has and is creeping back into my workload after a few ‘dormant’ months and a part of the reason has been the impact of the ‘GJ’ judgement which has been winging it’s way around various communication channels in our Trust.
I found a good summary of the GJ v Foundation Trust, PCT (Primary Care Trust) and Secretary of State for Health case in Family Law Week.
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Case law, also used interchangeably with common law, refers to the collection of precedents and authority set by previous judicial decisions on a particular issue or topic. In that sense, case law differs from one jurisdiction to another. For example, a case in New York would not be decided using case law from California.
Justia › US Law › Case Law › Federal Courts › Courts of Appeals › Second Circuit › 2019 › Velarde v. Receive free daily summaries of new opinions from the US Court of Appeals for the Second Circuit. Judgment arising from Court of Protection proceedings and deprivation of liberty for the purposes of providing treatment to the subject. The subject of the proceedings, GJ, was a 65 year old man who suffered from dementia and Korsakoff's Syndrome. He was also diabetic. GJ v The Foundation Trust EWHC 2972 (Fam) (1) As between the MHA 1983 and the MCA 2005 Deprivation of Liberty Safeguards, the MHA has primacy: professionals cannot pick and choose as they think fit. Jim Littlepage is a 1969 graduate of the University of Colorado Law School and was admitted to the Colorado Bar the following year. After graduating from law school, he served as a lieutenant in the U.S. Army from 1970-1971 and then entered the private practice of law.
It clarifies a lot of the questions that existed about the ‘eligibility’ assessment part of procedure to determine the authorisation or otherwise of a ‘deprivation of liberty’ under the framework of the Mental Capacity Act as opposed to the Mental Health Act.
When assessing people who are being deprived of their liberty and who lack capacity, in a hospital setting, the eligibility assessment has always been crucial. The eligibility assessment disbars the authorisation if the patient would otherwise meet the criteria of an assessment under the Mental Health Act.
I am aware that this may seem a little dry to those coming in from the ‘outside’ but it is absolutely fundamental to the legislation and the legislative tools that we engage with.
Gcase Law Conference 2019
The situation of GJ, as highlighted in the case law, relates to himself, as a 65 year old man suffering from Korsakoff’s syndrome and vascular dementia as well as diabetes. His partner had assisted him in managing his diabetes prior to her death however following this, he had suffered from two hypoglycaemic attacks with obvious consequences for his physical health.
The discussion in the judgement published by the Court seems to centre around the question as to whether the treatment in hospital is on physical health grounds in which case, it would seem that a DoLs authorisation may be appropriate however if there is any part of the treatment process which relates to a mental health need, then GJ would move into the ‘ineligible’
The judgement summarises that there are two strands to this case – namely whether GJ is being detained and treated in hospital and thus being deprived of his liberty on the basis of his physical treatment regime and the only reason for this detention was on the basis of his ‘package of physical treatment’. In which case, he would not be a ‘mental health patient’ and an authorisation could be granted to deprive him of his liberty to receive this treatment under the Mental Capacity Act.
However, if the mental disorder existing were to be treated in a hospital setting, that seems that the eligibility requirement for the Mental Capacity Act would be ‘failed’ and the Mental Health Act assumes it’s primacy in this situation.
The other crucial point that can be gleaned from the judgement is as follows
58. In my judgment, the MHA 1983 has primacy in the sense that the relevant decision makers under both the MHA 1983 and the MCA should approach the questions they have to answer relating to the application of the MHA 1983 on the basis of an assumption that an alternative solution is not available under the MCA.
59. As appears later, in my view this does not mean that the two regimes are necessarily always mutually exclusive. But it does mean, as mentioned earlier, that it is not lawful for the medical practitioners referred to in ss.2 and 3 of the MHA 1983, decision makers under the MCA, treating doctors, social workers or anyone else to proceed on the basis that they can pick and choose between the two statutory regimes as they think fit having regard to general considerations (e.g. the preservation or promotion of a therapeutic relationship with P) that they consider render one regime preferable to the other in the circumstances of the given case.
So the Deprivation of Liberty Safeguards cannot be used as an alternative to use of the Mental Health Act as the eligibility criteria still need to be met in order for the assessments to continue. I’ve underlined for greater emphasis as much for my own benefit as anyone elses’ as I know personally of consultants who have favoured referring patients for the DoLs framework rather than using the Mental Health Act as it seems ‘least restrictive’ (an argument that doesn’t really exist in my view as the effect, namely someone being in hospital against their volition is the same in both regimes and in fact, there is a much more robust appeals procedure available under the Mental Health Act).
I’m sure there are many more qualified to sift through the case law which is coming from the Court of Protection, than I but it is a relevant judgement that has a significant impact on my work as a Best Interests Assessor and as an AMHP, eligibility assessor under the DoLs framework.
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