Mental Health - September 2009
To DoLS or not to DoLS?
The Court of Protection has explained what it might mean
for a patient to be eligible for the DoLS
On 1 April 2009, the Deprivation of Liberty
Safeguards (DoLS) came into force, and the Court of Protection has
recently given judgment in the first DoLS case (W Primary Care
Trust v TB and others [2009] EWHC (Fam) 1737). It did that,
even though sadly, the patient concerned had already died. The
court said the issue raised by the case was becoming common and
needed to be clarified.
The facts
The patient,
Miss TB, suffered from an acquired brain injury with an associated
psychiatric disorder. Since 1995, she had complained of sensations
in her head, neck and stomach. She was preoccupied with those
sensations and thought, for example, that blood was flowing from
her brain into her stomach and down her left leg. TB firmly
believed her symptoms had a physical cause and therefore demanded a
medical solution. A recent deterioration in her circumstances
led to her being admitted to a registered care home, but TB said
clearly that she did not want to be there and wanted to be treated
in a NHS hospital. The relevant PCT and the official
solicitor, asked the Court of Protection to declare that TB was
‘eligible’ to be deprived of liberty at the home.
The issue
It was assumed
that the treatment given to TB was in her best interests. The
issue, therefore, whether depriving her of her liberty in order to
provide that treatment could be authorised by the court under the
DoLS.
The evidence showed that it would not be
helpful to detain TB under the Mental Health Act 1983 (MHA 1983),
because the specialist treatment she required would not be
available in mainstream psychiatric services. The care home, on the
other hand, was situated close to the homes of TB’s brothers and
their continued involvement was an essential part of her treatment
and rehabilitation. In any event, the home did not accept
patients who were detained under MHA 1983.
The law
There were two
ways in which TB might lawfully be deprived of liberty in order to
receive the care she required: MHA 1983 or the DoLS. The
DoLS, of course, are contained in the Mental Capacity Act 2005 (MCA
2005), and section 4A of that Act provides that an authority to
deprive someone of liberty may be made by the Court of Protection
under section 16, or by a Supervisory Body (here, a local
authority) under schedule 1A. No such order may be made, however,
if the person is ‘ineligible’ for the DOLS, and in such a case, the
only proper course was would be to detain her under MHA 1983.
Eligibility for the DoLS is determined by
schedule 1A, and among the cases specified in paragraph 2 is where
a person is “within the scope” of MHA 1983 but “not subject to any
of the mental health regimes.” Further clarification is given in
paragraph 5, which says that someone will not be eligible for the
DoLS if first, MHA 1983 authorises her to be a mental health
patient and secondly, she objects either to being such or to being
given some or all of the mental health treatment.
In this case, the judge found that TB
certainly was objecting. In order for her to be ineligible for the
DoLS, however, it would also be necessary for her to be a ‘mental
health patient’, which paragraph 13 of schedule 1A defines as a
‘person accommodated in a hospital for the purposes of
being given medical treatment for a mental disorder’ (emphasis
added). The crucial question, therefore, was whether the care home
to which TB had been admitted was a ‘hospital’ (which under MCA
2005 has the same meaning as under MHA 1983). The judge found
that the home was obviously not a NHS Hospital, and even though it
was registered as a care home under the Care Standards Act 2000,
that it was not an independent hospital.
As TB was not accommodated in a hospital, she
could not be a mental health patient and was therefore eligible for
the DoLS.
Discussion
Given the
complexities of the DoLS and the nature of their interaction with
other legislation, this clarification from the court is very
welcome. The deprivation of liberty aspects of mental heath
law are likely to generate more such cases, and care providers and
DoLS authorities should be alive to the precise legal status of the
accommodation given to incapable people. As this case demonstrates,
that status can be the key to determining whether a deprivation of
liberty is lawful.
Catriona Sangster,
Paralegal
Weightmans
LLP
catriona.sangster@weightmans.com