Patients with learning disabilities who lack capacity detained under the Mental Health Act in the UK: A case study

an article by Indermeet Sawhney (Hertfordshire Partnership University NHS Foundation Trust, Braintree, UK), Asif Zia (Hertfordshire Partnership University NHS Foundation, Hatfield, UK and University of West London, Brentford, UK) and Bob Gates (University of West London, Institute for Practice, Inter-disciplinary Research and Enterprise (INSPIRE), London, UK; University of Derby and University of Hertfordshire, UK) published in British Journal of Learning Disabilities Volume 45 Issue 2 (June 2017)

Accessible Summary

In England and Wales, some people with learning disabilities may have to be detained under the Mental Health Act 2007 as patients in a hospital for a period of assessment and or treatment if they are suffering from a mental disorder, and it is for the interests of their own health and safety, or to protect others.

Patients who are detained under Section 2 of the Mental Health Act 2007 can apply to the Mental Health Tribunal to decide whether they should be detained in a psychiatric hospital or be discharged.

The Mental Health Tribunal has the power to discharge these patients after a hearing.

Patients who lack capacity to apply to the tribunal are unable to have a tribunal hearing.

The European Court has ruled that this is unfair to these patients.

There needs to be a system in place to ensure that these patients get a tribunal hearing.

Abstract

Background
In the UK, the Mental Health Tribunal is a long-established safeguard for patients detained under the Mental Health Act. This gives such patients an effective appeal mechanism to ensure legal protection of their liberty. This act contains sections that allow for civil detention in the case of mental disorder. The right to apply to the tribunal against such detention is underpinned by the right to liberty under Article 5 of the European Convention of Human Rights (ECHR). Some patients with learning disabilities may lack capacity and the ability to challenge their detention.

Method
This article presents a case study of a woman with Down's syndrome and severe learning disabilities. Whilst this woman was detained under the Mental Health Act, she could have applied for a review of her detention to the Mental Health Tribunal within 14 days. She did not do so because she lacked capacity to instruct solicitors. Subsequently, as a result of appeal, the case proceeded through English and European judicial review.

Results
The European Court of Human Rights, in the case of MH v UK (2013), has ruled that the appeals procedure for patients without capacity detained under Section 2 of the Mental Health Act is not compatible with Article 5(4) of the European Convention of Human Rights. The European Court has ruled that special procedural safeguards are required to enable this cohort of patients to exercise their rights guaranteed by Article 5(4).

Conclusions
Responsible clinicians [treating consultant psychiatrists] need to ensure that all patients detained under section 2 of the Mental Health Act have an assessment of their capacity to apply to the tribunal. There need to be systems in place to alert hospital managers when a patient lacks capacity to apply for a tribunal. Hospital managers should request the Secretary of State to apply for a tribunal in these instances. Knowledge of this ruling is relevant to informing the practice of other interdisciplinary healthcare professionals working with such patients.

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