AM v SLAM [2013] UKUT 365

 MCA s.1(6): “Before the act is done, or the decision is
made, regard must be had to whether the purpose for which
it is needed can be as effectively achieved in a way that is
less restrictive of the person’s rights and freedom of action.”
 MHA COP para 1.3: “People taking action without a
patient’s consent must attempt to keep to a minimum the
restrictions they impose on the patient’s liberty, having
regard to the purpose for which the restrictions are
 AM v SLAM [2013] UKUT 365: “least restrictive way of best
achieving the proposed assessment or treatment”?
 Tribunal Practice Direction (Oct 2013): “in the case of an
eligible compliant patient who lacks capacity to agree or
object to their detention or treatment, whether or not
deprivation of liberty under the Mental Capacity Act 2005
(as amended) would be appropriate and less restrictive…”
 James v Aintree University Hospitals NHS Foundation Trust
[2013] UKSC 67:
 MCA 2005 is concerned with enabling the best interests
decision marker to do for the patient what he could do for
himself if of full capacity, but it goes no further. No greater
powers than the patient would have if he were of full capacity.
 “45 … The purpose of the best interests test is to consider
matters from the patient’s point of view. That is not to say
that his wishes must prevail, any more than those of a fully
capable patient must prevail. We cannot always have what we
 Restrictive of what?!
 AM v SLAM [2013] UKUT 365:
“Although an authorisation under the DOLS will not
inevitably be less restrictive:
a) the perception of many is that detention under the MHA
carries a stigma and this supports the view that generally it
will be more restrictive than an authorisation of a deprivation
of liberty under DOLS, and
b) an authorisation under the DOLS can where appropriate
be made under conditions that would render it less restrictive
(e.g. in respect of family visits or to the community).”
 Why DOLS is less restrictive….
 Why MHA is less restrictive….
AM v SLAM [2013] UKUT 365
“… Parliament has provided statutory regimes which may or do provide alternatives
and so choices which fall to be considered by the relevant statutory decision makers
under the two schemes.”
If there is a choice, is the MHA or MCA/DOLS the least restrictive way of best
achieving the proposed assessment or treatment? Consider:
1. What is in their best interests? Eg possible DOLS conditions, fluctuating
capacity, comparative impact of the independent scrutiny, review and
enforcement provisions of MHA and DOLS.
2. Likelihood of continued compliance and triggers to possible non-compliance
and their effect on the regimes’ suitability.
3. Is the MCA/DOLS regime practically/actually available?

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