W Primary Care Trust v TB & Ors

An incapable person may be deprived of liberty under the Mental Capacity Act 2005 where the statutory ineligibility provisions do not apply. A person accommodated in a care home is not a “mental health patient” merely because the person receives treatment for a mental disorder. The relevant question is whether the accommodation is a hospital within the statutory definitions. A registered care home which is neither an independent hospital nor part of the NHS does not satisfy that definition. Where the person is not thereby ineligible, the Court of Protection may authorise deprivation of liberty by a welfare order, provided that the order is in the person’s best interests.

The proceedings were brought in the Court of Protection by a primary care trust concerning an adult with an acquired brain injury and associated psychiatric disorder. She lacked capacity to decide where she should reside and whether to undergo psychological, psychiatric and behavioural treatment. She was accommodated at V, a registered care home, but repeatedly objected to remaining there.

The applicant and the Official Solicitor sought a declaration that she was eligible to be deprived of liberty at V under section 4A of the Mental Capacity Act 2005. The central issue was whether her accommodation and treatment brought her within the statutory ineligibility provisions, so that detention could be authorised only under the Mental Health Act 1983.

1. Statutory scheme. The Mental Capacity Act 2005 provides two possible routes for the lawful deprivation of liberty of an incapable person requiring rehabilitative mental health care: an order of the Court of Protection under section 16, or the deprivation of liberty safeguards. Section 16A prevents a welfare order from authorising deprivation of liberty where the person is ineligible under Schedule 1A.
2. Ineligibility. TB’s expressed objections to remaining at V were genuine objections for the purposes of Schedule 1A. That did not determine eligibility. It was also necessary to establish that she was a “mental health patient”, namely a person accommodated in a hospital for the purpose of receiving medical treatment for a mental disorder.
3. Meaning of hospital. Schedule 1A adopted the meaning of “hospital” in Part II and section 145 of the Mental Health Act 1983. The statutory definitions included a registered establishment registered as an independent hospital and a health service hospital. V was a registered care home, not an independent hospital, and was not part of the NHS. It therefore did not fall within the statutory definition of hospital.
4. Conclusion. TB was not a mental health patient within Schedule 1A and was not ineligible to be deprived of liberty under the Mental Capacity Act 2005. The Court could therefore authorise her detention at V under section 16, subject to a best-interests assessment and continuing, rigorous review. On the evidence, residential treatment at V was in her best interests in the short term. The declaration sought was granted, with consequential directions for further evidence and review.
5. After judgment had been drafted, the court was informed that TB had died. Accordingly, no declaration or orders would ultimately issue, although the judgment was released because the issue was recurring and had no reported authority.

Court of Protection, High Court (Family Division): Hogg J had made interim declarations and orders on 22 April 2009 preserving TB’s position pending determination of the statutory eligibility issue. The present court determined the issue and granted the declaration sought in principle.