TB was eligible to be deprived of her liberty under the Mental Capacity Act 2005 (either under DOLS provisions or s16 court order): she might have been ineligible under Case E, but she was not a "mental health patient" because her care home did not fall within the definition of a hospital.
TB was initially subject to an urgent authorisation at a care home. The eligibility assessor for the standard authorisation questioned whether she was ineligible, seeing as she could alternatively have been detained under the MHA and objected to being a mental health patient (Case E). The subsequent deprivation of liberty was authorised by interim court declarations.
She potentially came within Case E of the schedule (being "within the scope of the MHA but not subject to any of the mental health regimes"). She would therefore be ineligible if she would be a "mental health patient" under the standard authorisation and "objects to being a mental health patient or to being given some or all of the relevant treatment".
Having regard to all the circumstances, including her behaviour, expressed wishes and feelings, views, beliefs and values, it was clear that she did object. The question then was whether she was a "mental health patient".
Para 37 of the judgment goes through the various definitions: "mental health patient", para 16 [MCA 2005 sch 1A]]; "hospital" and "registered establishment", s34(4) MHA 1983 applied by para 17 sch 1A MCA 2005; "hospital", s145 MHA 1983 also applied by para 17 sch 1A MCA 2005; "health service hospital", s275 National Health Service Act 2006.
In light of the statutory definitions, the care home was not a hospital. Therefore TB did not meet the definition of "mental health patient". This meant that she was not ineligible for a s16 court order or the DOLS standard authorisation.
If she had been ineligible it was agreed that the MHA was an inappropriate alternative: the care home did not take MHA detained patients, and the treatment TB required were not available in mainstream psychiatric services.
The case was adjourned with directions, including for a neuropsychiatric report as there was some doubt as to whether the care home was suitable in the long term. Unfortunately, in the meantime, TB hanged herself.
Summary from Court of Protection 2009 Report
This was an application relating to the Deprivation of Liberty Safeguards (DOLS) introduced into the Mental
Capacity Act 2005 by the Mental Health Act 2007. In essence, the evidence established that the care home in
which it was proposed to accommodate TB was a registered care home under the Care Standards Act 2000, but
was not registered as an independent hospital. Nor was it part of the NHS. Thus it did not fall within the
necessary definition of a “Health Service hospital”, as defined under the relevant provisions of the MHA 1983.
Accordingly the declaration and orders sought by the PCT did not constitute declarations and orders seeking
“to accommodate her in a hospital” as defined, and thus TB was not on this basis a “mental health patient” as
defined under schedule 1A of the 2005 Act. It followed that her detention in the care home fell outside the
categories of ineligibility under paragraph 2 of schedule 1A of the 2005 Act.
Dept of Health summary
TB was in V, a care home, and wished to be placed in an NHS hospital in order for the recommended neuro-psychiatric assessment and neuro-behavioural treatment to be carried out. Whether this course of action was considered to be in her best interests was disputed.
On 9 April 2009, TB was made the subject of an urgent authorisation to be deprived of her liberty. In the subsequent assessment for a standard authorisation, the eligibility assessor questioned whether she was ineligible to be dealt with via the MCA DOLS as her circumstances fell more properly within the scope of the Mental Health Act 1983.
The Court of Protection found that TB was eligible to be deprived of her liberty by the Safeguards, if it were in her best interests to do so, as she was not a mental health patient as defined under schedule 1A of the Mental Capacity Act 2005, because the authorisation related to a care home which was not a hospital within the meaning of Pt 2 of the Mental Health Act ( see s.145(1) Mental Health Act).
This decision confirms the guidance provided in the MCA DOLS Code of Practice for determining the eligibility assessment.
(2009) 12 CCL Rep 488, (2009) 110 BMLR 45,  1 FLR 682,  EWHC 1737 (Fam),  Fam Law 1032
Duplicate Bailii citation number:  EWHC 1737 (COP)
Dept of Health: Briefings on legal cases, 2/2/10 - including summary of this case
Court of Protection: 2009 Report - published 10/6/10 - Summary on page 16