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Important case on DOLS
One of the difficulties facing those who have to use the deprivation of liberty safeguards (DOLS) is when to use the Mental Health Act and when to use the DOLS? Mr. Justice Charles has now given some useful guidance in a judgment in the Court of Protection handed down on Friday 20th November. Simon Burrows of Kings Chambers acted for the patient from the date of his detention up to the hearing in the Court of protection.
In this case GJ challenged his detention in Hospital under DOLS just months after he had been detained in the same Hospital under the Mental Health Act. He challenged his eligibility to be detained and, in particular, whether he came under Case E of Schedule 1A.
GJ suffered from Korsakoff’s syndrome, which is a mental disorder under the Mental Health Act. However, he is also a diabetic. His mental disorder resulted in him being unable safely to manage his blood sugar levels without supervision. He had escaped four times from a care home. He was eventually returned to Hospital and detained under the DOLS. He challenged his detention on the grounds that he was ineligible because he ought to be detained under the Mental Health Act.
In this case, the Court was asked to consider what test should be applied where the Hospital argued that the reason the patient was detained was because of the need to treat his physical disorder (i.e. diabetes) rather than his mental disorder? The case turned on the construction of the word “could” in Sch.1A, para 12(1). Charles, J decided that it was for the decision-maker (be it the clinician, AMHP or the Court) to ask himself whether, were it not for the need for the purely physical treatment, he would detain the patient under the Mental Health Act.
GJ (by the Official Solicitor) v. (1) A Foundation Trust (2) A PCT and (3) The secretary of State for Health  EWHC 2979