W Primary Care Trust v TB (an adult by her Litigation Friend the Official Solicitor); V (a care home); S Metropolitan Borough Council and C & W Partnership NHS Foundation Trust and W Metropolitan Borough Council [2009]

In this case the Court of Protection was required to consider whether the incapacitated person was really within the scope of the MHA and therefore ineligible for the DoLS procedure. TB was a 41 year old woman, who suffered from an acquired brain injury with a chronic delusional disorder ever since an operation in her childhood had unforeseen consequences.  At the time of the hearing she was accommodated temporarily in a specialist treatment centre registered as a care home which did not accept patients under the Mental Health Act 1983. She was not at that point a sectioned patient.  She had suffered from sensations in her head, neck and stomach since at least 1995 and was constantly pre-occupied by these. She believed that blood was flowing from her brain into her stomach and down her left leg, with associated pain and distress. She had a fixed belief that her symptoms had a physical cause, and that she needed physical medical intervention. This belief was reflected in her social behaviour, e.g. calling the 999 emergency services, taxi firms, her general practitioner, and the CMHT, seeking medical help for the perceived bleeding. She suffered associated distress when help was not offered. Anti-depressant and anti-psychotic medication for her condition, both as a psychiatric in-patient, and in the community, had ‘more or less failed’.

Experts were agreed that the only way likely to ameliorate her fixed delusional belief was by the provision of a complex package of intensive neuropsychological and neuro-behavioural therapies in a residential unit. There was disagreement as to the need for further assessment before commencement of this programme and as to the most appropriate venue for its implementation. However, TB had expressed clearly and repeatedly that she did not wish to be at the care home but wished to be admitted to an NHS hospital for physical examinations to be carried out.

The judge accepted expert evidence that detaining TB under the Mental Health Act was not an appropriate option because the specialist treatment she needed would not be available in mainstream psychiatric services. Any such placement was considered to be potentially detrimental to her welfare in any event as it would increase her level of distress. The experts had also ruled out provision of specialist treatment in the community or in her own home. That was why she was in a care home.

Since going to the care home, TB had frequently expressed a wish to leave V and seek medical treatment for the perceived “bleeding”. By the deployment of distraction techniques and verbal dissuasion, the staff had managed to persuade her to remain, and no force or physical restraint had to date been used. No-one took this to mean, however, that such techniques would always be enough. The view was as follows: “As we can in no way detain her if she really wishes to leave, there is a limit as to how far we can go with persuasion and distraction” – which must surely be ethically correct. It was planned that restraint upon her liberties would potentially include, in the event that the current techniques ceased to be effective, the application of mild physical restraint, and the use of fob locks to prevent her leaving parts of the building in which she resided.

Just before the DoLS provisions came into force, the PCT and the Official Solicitor sought a declaration that “The first respondent is eligible to be deprived of her liberty at V the care home pursuant to an authority under section 4A of the Mental Capacity act 2005”.

After April 1st 2009, when the application for a standard DoLS authorisation was made by the care home, the eligibility assessor appointed questioned whether the circumstances of TB properly fell within the scope of the MHA 1983 rather than the 2005 Act as amended, because of the objection she had made clear, to treatment for her mental condition.

The judge had to decide whether depriving her of her liberty in order to provide this particular residential treatment could (assuming incapacity and best interests) be authorised under schedule 1A of that Act (the “DoLS” provisions). Authorisation to deprive an incapable person of their liberty can come from either an order of a judge of the Court of Protection or under the “DoLS” procedures in Schedule 1A of the 2005 Act. Section 16A of the 2005 Act circumscribes the powers of the Court of Protection to make a welfare order which incorporates an element of deprivation of liberty. If, however, a person is ineligible to be deprived of liberty by the DoLS amendments, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty.  It is Schedule 1A that determines whether or not a person is ineligible to be deprived of liberty by the DoLS procedure as set out above. As TB was clearly objecting and no lawfully authorised donee or deputy had consented to the treatment it was possible that she would be ineligible. But the judge had to decide whether she was actually objecting to treatment for mental disorder. That was defined as treatment in a hospital. The care home was not an independent hospital nor an NHS hospital; merely a care home.  Thus the exclusions in schedule 1A did not apply. It followed that an order for DoL could be made by the Court or by the correct Supervisory Body under the DoLS process (hence the involvement of the local authority as Supervisory Body in this case, even though the PCT would have been paying for the care).

The woman committed suicide shortly after the decision.

If she had been objecting to treatment for her mental health condition in a hospital, and the question had arisen whether she could have been detained under the Mental Health Act, the fact that professional opinion believed that to do so would not be in her best interests could have led to a difficulty, in terms of the schedule on ineligibility for DoLS. She would have been objecting to being a mental health patient as defined so would have met the second part of the test set out in the schedule. It may also appear that she met the first part of the test set out in Case E of schedule 1A namely that she was within the scope of the MHA 1983 because, as was made clear in in GJ v The Foundation Trust [2009] an eligibility assessor must determine whether s/he believes the patient could be detained under the MHA and not concern themselves with whether another doctor could possibly, or would be likely to, or could not possibly not, regard the person as warranting detention in hospital. However, in this instance the assessor could conclude that although she had a mental disorder that meant she was a danger to herself or others she would not met the criteria for detention under the MHA because treatment was not available to her at the hospital and that therefore she could be detained under the DoLS process. Of course, such a scenario would be unlikely to occur because although she may not have been ineligible for DoLS authorisation a BIA would be unlikely to conclude it would be in the patients best interests to remain within a setting under DoLS authorisation where it had already been determined that treatment was not available, not least because were such a scenario to occur the patient would be objecting to mental health treatment in a hospital but would not have been ineligible for DoLS, and yet denied the protection of the Mental Health Act.

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