Deprivation of Liberty – Mental Health Act or Mental Capacity Act?

17th August 2023

Professor Richard Jones, Consultant, considers the case of Manchester University Hospitals NHS Foundation Trust v JS and Manchester City Council [2023] EWCOP 12 and recent appeal at [2023] EWCOP 33, which concerns the interpretation of Schedule 1A to the Mental Capacity Act 2005 (MCA 2005) and its interface with the Mental Health Act 1983.

The ruling seeks to provide clarity as to when a person is “within the scope” of the Mental Health Act 1983 and is ineligible to be deprived of their liberty under Case E of the Mental Capacity Act 2005.


Manchester University Hospitals NHS Foundation Trust v JS and Manchester City Council [2023] EWCOP 12, was described by HHJ Burrows as a case about “a young person [JS] with complex mental health needs that leave her in danger by her own hand as well as at the hands of others. Her presentation can be dramatic and disturbing. The various organs of the state whose duty it is to provide care and safety to JS are seemingly unable to do so.

This is due to a combination of the challenges presented by her condition and behaviour, a lack of readily available resources and … a fundamental difficulty in understanding and applying the law. No Tier 4 provision was available to JS and the hospital where she was being treated was ill equipped environmentally and in terms of its lack of specialist CAMHS psychiatric expertise to care for her. JS, who was objecting to her treatment, was assessed as “not being detainable under s.3 MHA. The reason for this is because a Tier 4 admission would (they say) further increase Jane’s ‘risk level’ in the context of neurodevelopmental disorder rather than a treatable mental illness because of the increasing incidents of self-harm and verbal aggression”. There was no immediately effective plan for JS to be cared for in the community.

The decision

The issue before Judge Burrows was whether JS came within the scope of Case E of Schedule 1A of the Mental Capacity Act 2005 (“the MCA 2005”) i.e. patients who are “within the scope” of the Mental Health Act 1983 (“the MHA 1983”) but are not subject to it. If a patient comes within the scope of Case E, he or she cannot be detained under the MCA2005. Judge Burrows held that JS was within Case E and that an application could and should have been made under the MHA in respect of her. JS was receiving treatment for “the manifestations of her mental disorder” even though “the treatment was not optimal and was not aimed at the ’core disorder’ from which she suffers which is likely to be addressed only by psychological and other therapies over a long period of time”.

Judge Burrows rejected the following submissions that were made in support of the contention that JS was not within the scope of the MHA 1983:

  • “90. Firstly, that she was accommodated at the Hospital as a place of safety because there was nowhere else for her to go and, once the physical damage caused by her overdose was successfully treated, she needed no inpatient medical treatment. The answer to that is: of course, she did. She was a danger to herself. She needed to be nursed safely and medicated to address the effects of her mental disorder (viz. to injure herself and abscond away for safety).
  • 91. It was submitted that although Jane suffers from a mental disorder it was not of a nature or degree to make it appropriate for her to receive medical treatment for that disorder in a hospital. This is clearly wrong. The medical treatment she did receive as a detained patient in hospital was necessary to keep her safe and to prevent her from absconding or harming herself. There was no readily available alternative when she was receiving it.
  • 92. It is submitted that the outcome of the MHA Assessments was that inpatient care for Jane’s condition was neither available nor desirable because she could be treated in the community under the MCA. This too is plainly wrong. She could only be treated in the community once a suitable package of care was available for her. Until then she could not safely leave hospital. That was the situation with which I was confronted at the first hearing. At that point hospital was the only option.”

Speaking more generally, Judge Burrows said:

96. There seems to be a belief, not just in this case but in others which I have heard recently, that the decision to use the MHA should be viewed in isolation from what is available elsewhere at the time the decision to detain or not detain is taken. Ideally, a 17-year-old vulnerable young person would not be detained in a psychiatric facility, let alone a mixed adult general ward. However, where there is literally no option in which that young person will be safe, or as safe as possible in the circumstances, I cannot see how the MHA decision maker can avoid the decision I have had to make in this judgment. If the patient has to be detained for treatment for their mental disorder, and there is no alternative outside the hospital setting, and no other treatment plan available, then it seems clear to me the patient should not be detained under the MCA but rather under the MHA.

The appeal

An appeal against the decision of HHJ Burrows was dismissed by Theis J. at [2023] EWCOP 33. Her Ladyship agreed that the following questions provide a useful structure to aid practitioners and judges who must navigate Case E:

  • (1) Is P a ‘mental health patient’?
  • (2) Is P an ‘objecting’ mental health patient?
  • (3) Could P be detained under s 3 of the MHA ?

With regard to point 3 (which, it is submitted, should also encompass s.2 of the MHA 1983) her Ladyship agreed with Charles J’s construction of the meaning of “could” in GJ v Foundation Trust [2009] EWHC 2972 (Fam) at para.80, namely that the decision maker should “ask himself whether in his view the criteria set by, or the grounds in, s.2 or s.3 MHA 1983 are met (and if an application was made under them a hospital would detain P)”.

Where there is a dispute between the decision maker under the MHA 1983  and MCA 2005 , Theis J. endorsed the following “practical suggestions” put forward by the Secretary of State for Health and Social Care:

  • “(1) The MHA and MCA decision-makers should arrange for discussions between the relevant professionals. They should be undertaken in what Ms Kelly describes as ‘the spirit of cooperation and appropriate urgency’. This will ensure the relevant professionals have reviewed and considered relevant evidence and if required further inquiries can be made.
  • (2) If these discussions do not result in a detention being authorised under the MCA the hospital has a number of choices:
    • (i) It can seek the person’s admission under the MHA 1983 to authorise the deprivation of liberty, including on a short-term basis while it seeks to advance the person’s discharge;
    • (ii) It can seek for the person to be detained in an alternative setting, such as a care home, in which Case E has no application, with consideration being given to what can be put in place to support the person in the community under s 117 MHA 1983 and/or Care Act 2014 duties.
    • (iii) It can stop depriving the person of their liberty if it considers the person should not be detained under MHA 1983, even with the knowledge that the person will not be detained under the MCA 2005.
    • (iv) If the hospital does not consider that an application for assessment or treatment under MHA 1983 is warranted but does consider it is in the person’s best interests to be detained in hospital for treatment of a mental disorder, it should consider carefully its reasons for drawing this distinction. The hospital could apply to the Court of Protection for a determination of whether the person is eligible for detention under the MCA 2005.”

How can Blake Morgan help?

Blake Morgan has significant experience in assisting with mental health, mental capacity and safeguarding legal issues. Please do get in touch with Professor Richard Jones, Daniel Taylor or Eve Piffaretti if you need advice on the Mental Health Act 1983 or Mental Capacity Act 2005.

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