The GJ judgement and DoLs


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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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.

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.

10 thoughts on “The GJ judgement and DoLs

  1. As ever up to date. I too have seen this floating around on numerous websites etc and see today that DoH MCA lead has suggested that this judgement is the same as the DoH interpretation and is compliant with the code of practice!

    I thought that the MHA would be used if the relevant person was resisting treatment for a mental disorder?

    I take it from your post that you are receiving more DOLS work in your area?

  2. V. interesting stuff cb; thanks for that. It does explain why Kerrie Wooltorton was classified under the MCA rather than the MHA, despite the fact she obviously had a mental health problem; they were deciding whether or not to treat her physical symptoms from the overdose, rather than the mental condition that led to it. If you don’t mind, I’ll post a link to this from my blog..

  3. TT – Thanks – I saw that about the DoH MCA lead (I suspect in the same place as you!) but it came after I went to work – I have had a bit more DoLs stuff although ‘busy’ is very relative as it remains barely a stratch on what was expected. We have had a proportionately large number of referrals via the PCT as opposed to the local authority though so the case is particularly relevant..

    Julie – I actually hadn’t thought of it in terms of the Wooltorton case but it can help to clarify although I remain very uncomfortable with that particular decision. And link away.. 🙂

  4. I have to say I’m beginning to wonder what the MCA is for; it does appear to have a very large overlap into the MHA when you think about it. Wouldn’t they be better just having one act that covered all eventualities, instead of all this dotting about between the two of them, and lesser or greater powers of restraint according to the condition?

    • It can be a bit confusing and I think some elements of the Mental Capacity Act were poorly drafted and implemented but there is an important role for the Act in a much broader sense than just this issue of Deprivation of Liberties. Indeed, there is an argument that just this part might be better suited as an addendum to the Mental Health Act.
      I do think that on a broader basis, the Mental Capacity Act has brought in better practice about the consideration for those who lack capacity.

  5. This is what we were taught in uni, but I had no idea that some consultants were opting to use the MCA instead of the MHA in practice.
    If a person required full-time care in a home due to dementia and didn’t want this, however, which act would be used? If dementia fits the definition of mental disorder (but which could also be defined as a physical disorder), and that is the reason leading to their refusal to leave their own home, does that mean they would have to placed on an order such as guardianship under the MHA, rather than their lack of capacity to make the decision being assessed?
    This interaction of the legislation is so confusing at times!

    • Dementia is a mental disorder, regardless of the organic cause. A mental disorder can be caused by a physical disorder. In fact, a lot of the overlap of the two acts relates to dementia.
      A lot of these judgements (and there is another judgement that I will try and locate at some point and add) refer to the exclusion from the Act of ‘mental health patients’ meaning those with mental disorders in hospitals – the exact same care regime could be taking place in a care home and it would be a deprivation of liberty under the Mental Capacity Act simply because the environment is not a hospital. I’ll try to back this up with a bit more case law as I locate it..

  6. Julie’s post:-I have to say I’m beginning to wonder what the MCA is for; it does appear to have a very large overlap into the MHA when you think about it. Wouldn’t they be better just having one act that covered all eventualities, instead of all this dotting about between the two of them, and lesser or greater powers of restraint according to the condition.

    Julie, you have hit the nail on the head, the reason for the watered down MCA from the MHA is merely for charging purposes.

    See cb’s reply:-We have had a proportionately large number of referrals via the PCT as opposed to the local authority though so the case is particularly relevant.

    DoL is merely a ‘means’ to not use the MHA, where using the proper sections, the NHS would be responsible for the ‘care’ of the ‘health needs’ and after care,

    cb’s post: Dementia is a mental disorder, regardless of the organic cause. A mental disorder can be caused by a physical disorder. In fact, a lot of the overlap of the two acts relates to dementia.

    Once again,in my humble opinion, this demonstrates the prescriptive attitude to ‘Dementia’ of the professional organisations.
    Dementia the umberella name for organic, degenerative brain diseases, not a psychosis which is the original meaning of ‘mental’ disorder.
    Interesting that the comment confirms that the MCA is merely an overlap of the prime legislation MHA, merely brought in to address the dilemma that both authorities had/have with placing of ‘dementia’ unfortunates within the budget led, imagined finance constricted NHS and LA regimes.
    The ‘people at the centre’ of the dubious system, are merely vulnerable pawns in the institutional abuse system, IMHO.

  7. Thanks for that, Pauline and cb; I always learn something when I come on this blog!

    I’ve had a wee scout round to check up the history of the MHA and the MCA. One vital difference is that under the MHA, a patient could not refuse treatment from the attending clinicians. Under the MCA they can. Balancing that however, is that someone who is mentally incapacitated can be ‘volunteered’ for medical research by the person who has attorney for them and get paid for it, provided the research relates to the condition they suffer from. The research does not have to be beneficial; it simply has to ‘do no harm’.
    But again, this could have been included in the MHA, and I think Pauline has come up with the real reason; under MHA a patient would have to be treated by the NHS as opposed to the local authority. Money drives policy as they say..

  8. One of the effects of the legislation and the case law, on a local level and from where I work, is that more people with dementia have been treated under the Mental Health Act meaning that they are entitled to Section 117 funding for free aftercare so actually, it has been at a higher cost to the local authorities – probably something that was not foreseen.
    And Pauline, the legal definition of ‘mental disorder’ is not one I invented or use arbitrarily. It is very clear under Section 1 of the Mental Health Act (as amended 2007) and is ANY disorder or disability of mind’. The cause and extent is irrelevant in these legal terms. That is the definition that we work to in these Acts. The ‘any’ part makes it extraordinarily broad in its scope.

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