Primary Care Trust & Anor v AH & Ors

Where an adult lacks capacity, the Court of Protection may make interim welfare orders, including orders authorising compulsory removal, detention and medical treatment, when the statutory jurisdiction is engaged and the order is in the person’s best interests. The court must balance competing welfare considerations, act on reliable medical evidence, and choose the least coercive effective course. A declaration under section 15(1)(c) of the Mental Capacity Act 2005 may authorise restraint which would otherwise amount to a deprivation of liberty, thereby addressing the Bournewood gap. Such an order requires findings of incapacity, best interests, reasonable and proportionate measures, and timely continuing review.

The primary care trust brought proceedings under the Mental Capacity Act 2005 concerning P, a 22-year-old man with severe, uncontrolled epilepsy who lacked capacity to decide matters concerning his treatment and assessment. P lived with AH, his adoptive mother and carer. Disagreement about medication and the appropriate assessment caused delay, while medical evidence indicated a risk of serious brain damage or death.

At an interim hearing, the court had to decide whether P’s best interests required immediate admission to a local unit or a short-delayed residential assessment elsewhere, and whether the Court of Protection had jurisdiction to authorise compulsory removal, detention, treatment and reasonable force.

1. The court made an interim order providing for P’s admission to the Romford unit if a bed became available by 13 June 2008 and AH gave the necessary undertakings. If that course failed, P was to be admitted immediately to Oak Rise. The order also authorised reasonable and proportionate force if required, subject to review within 28 days and a return hearing.

2. Applying the balance-sheet approach, the court accepted that it had sufficient material to determine P’s interim best interests. The continuing medical risk from uncontrolled epilepsy required urgent assessment and treatment. Romford was preferable because it offered valuable diagnostic assessment and the prospect of co-operation, but only if AH would not obstruct treatment or reasonable restrictions on contact. Without that assurance, immediate admission to Oak Rise was required.

3. The Court of Protection had jurisdiction under sections 15(1)(c), 48 and 17(1)(d) of the Mental Capacity Act 2005. Section 15(1)(c) was a free-standing power to declare the lawfulness of acts done or to be done in relation to a person lacking capacity. Section 48 permitted interim orders where there was reason to believe that P lacked capacity, the matter fell within the court’s powers, and delay would be contrary to P’s best interests. Section 17(1)(d) extended welfare decision-making to consent to treatment.

4. The court agreed with the reasoning in Surrey Council v MB and others that section 15(1)(c) could authorise compulsory removal and detention for medical treatment, where this was in P’s best interests and compatible with article 5 of the ECHR. Following City of Sunderland v PS, the necessary safeguards were findings that P lacked capacity to decide whether to attend or remain at the unit, that attendance and detention were in his best interests, a prior declaration authorising reasonable and proportionate measures, and timely ongoing review.