Key takeaways
High court cannot rule on MHA detention
Jurisdiction lies with clinicians, not the judiciary
Local authority application was fundamentally flawed
Court rejected analogy with adult capacity cases
Clear boundaries protect decision-making integrity
Judges avoid reviewing powers given by parliament.
In SB, Re [2024] EWHC 2964 (Fam) (19 November 2024), the local authority (erroneously) sought a declaration from the High Court that a 15-year old patient was detainable under the Mental Health Act 1983 (“MHA”) on the basis that the case was analogous to the Court of Protection appeal in the case of Manchester University Hospitals NHS Foundation Trust -v- JS & Anor (Schedule 1A Mental Capacity Act 2005) [2023] EWCOP 33 (10 August 2023).
Background
SB was a 15-year-old girl subject to an interim care order obtained by Conwy County Borough Council (“the Local Authority”). She was subject to a deprivation of liberty (“DoL”) order made pursuant to the inherent jurisdiction of the High Court in July 2024 which authorised her placement on a general adolescent ward operated by Betsi Cadwaladr University Health Board (“the Health Board”), to manage her increasingly challenging and extreme behaviour which placed her at significant risk of harm.
A disagreement arose between the Local Authority and the Health Board as to the relevant legal framework and responsibilities for SB’s care, which led the Local Authority to seek a declaration from the High Court that SB was detainable under the MHA and accordingly that the court had no jurisdiction to make a further DoL order. The basis of the Local Authority’s application was that SB’s case was analogous to that of Manchester University NHS Foundation Trust -v- JS (Schedule 1A Mental Capacity Act 2005) [2023] EWCOP 33 which concerned whether a 17-year-old was ineligible to be deprived of her liberty under the Mental Capacity Act 2005 (“MCA”) by reason of being within the scope of the MHA.
The Health Board argued that the court had no jurisdiction to determine whether SB was detainable pursuant to the MHA or to review the decisions made by clinicians under the MHA, and that the case of JS was distinguishable because it was limited to the discrete ability of the Court of Protection to determine ineligibility for detention under the MCA and did not extend to children below the age of 16, such as SB, who fall outside the scope of the MCA.
The Judgment
The Judge stated [at paragraph 59]:
"This court has no role to supervise or review decisions which have been entrusted by Parliament to another public authority. The 1983 Act [MHA] is an obvious example where Parliament has provided for a statutory code in respect of the detention of people with a mental disorder for treatment in hospital.”
In distinguishing SB’s case from that of JS, the Judge noted that Schedule 1A of the MCA makes statutory provision for finding that a person is ineligible from being deprived of their liberty under the MCA where they could be detained under the MHA – however, there is no basis for this being read as having a wider application which would permit the court to determine whether a person is within the scope of the MHA when exercising its powers under the inherent jurisdiction (e.g. for under 16’s such as SB).
The Judge therefore concluded [at paragraph 61] that:
"In the absence of clear authority, I am satisfied that for this court to make findings and/or declarations about whether SB was detainable under s.3 of the 1983 Act would be to exercise an impermissible supervisory or review function of the clinicians and mental health professionals acting pursuant to the provisions of the 1983 Act [MHA]. This court has no jurisdiction to make such findings or orders.”
