Alex Cisneros acts in a case exploring the interface between the Mental Health Act 1983 and the Mental Capacity Act 2005

The case was before the Upper Tier Mental Health Tribunal and concerned the discharge of a restricted patient who had been assessed to lack capacity to make decisions about various matters including his residence and compliance with psychotropic medication regime. Outer Temple’s Alex Cisneros appeared as counsel for the Secretary of State for Justice in this case. 

The Upper Tier (UTT) was considering an appeal relating to a 63 year old man, ML, who was a restricted patient detained under sections 47 and 49 of the Mental Health Act 1983. His tariff (the criminal aspect of his detention) expired 30 years ago.

ML was seeking a conditional discharge from detention. The First Tier Tribunal (FTT) had heard evidence that the patient lacked capacity to make various decisions, including whether he should take his prescribed psychotropic medication. The FTT determined that “the only environment where his medication regime can be enforced is in hospital”.

The UTT set aside the FTT’s original decision and found that it had erred for two reasons:

1. Firstly, the FTT had incorrectly concluded that there was no way for it to coordinate the MHA proceedings with an authorisation under the MCA. The UTT found that there was an alternative framework for managing ML in the community.
2. Secondly, the UTT found the FTT’s reasons to be inadequate as it had not engaged sufficiently with the central argument that there was a less restrictive alternative to hospital detention.

The case is a rare example of the interface between the Mental Health Act 1983 jurisdiction and the mechanisms of the Mental Capacity Act 2005. The 1983 Act is concerned with the provision of medical treatment of people suffering from mental disorder, and when they should be liable to be detained in hospital for treatment, while the 2005 Act is concerned with the making of decisions in the best interests of those who lack relevant mental capacity.

To read the decision, please click here.

Find out more

Alex Cisneros is a specialist public law and private client barrister. He has experience handling significant contentious and non-contentious matters with a particular emphasis on mental capacity. Alex has experience of public law cases in various tribunals, the High Court and the Court of Appeal. In addition to his mental capacity work, his public law work largely involves education and prison law. Alex is a member of the B Panel of the Attorney General’s Panel of Junior Counsel to the Crown.

To find out more, please contact  Matt Sale on +44 (0)20 7427 4910 or George Bennett on +44 (0)207 427 0807 for a confidential discussion.

News 28 Nov, 2023