This case concerns a 17 year old who had been detained under s2 of the Mental Health Act but was deprived of her liberty when that authority lapsed.
Background of P
By way of background, P has a diagnosis of Autistic Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD), learning disability and an attachment disorder. Due to P’s complex mental health needs, this meant that she was in danger by her own hand as well as at the hands of others.
P had been admitted to a specialist child and adolescent psychiatric unit as an ‘informal patient’, meaning she had been assessed as having capacity to consent to admission. P was discharged to the care of her mother over concerns she could become institutionalised. Following this, P ran away from home and into traffic. She was detained by the police who were so concerned about her mental health that they used their powers under s136 of the Mental Health Act to detain her and take her to a place of safety.
It was here that a Mental Health Act assessment was carried out and P was assessed as not requiring admission. P was therefore discharged back into her mother’s care with a community based care and treatment plan.
Several days later, P was detained under s2 of the Mental Health Act following an overdose. After recovery, she remained on the ward even after authority to detain expired. It was agreed that being on the ward was inappropriate and detrimental to her health.
P’s Care and Treatment in Hospital
Due to P’s attempts to self-harm, the hospital put in place a ‘Care Plan of Restrictions’. Incidents were recorded by the hospital and HHJ Burrows considered these when providing the judgment.
Court of Protection Application
From the date that the s2 expired, P was not subject to any lawful regime of detention. P was subject to a regime of detention due to the fact that she was under continuous supervision and control and was not free to leave the ward, in light of the ‘Care Plan of Restrictions’ that were imposed. HHJ Burrows accepted that during that time, P lacked the capacity to make decisions in regard to her care and treatment due to her mental health conditions. Because of this, P was therefore not able to consent to her residence, care, treatment or to being deprived of her liberty.
On 10 February 2023, the hospital made an application to the Court of Protection seeking several declarations in relation to P remaining at the hospital in her best interests and to be subject to the restrictions contained in the care plan.
HHJ Burrows declared that once the s2 authority had expired, P had been unlawfully deprived of her liberty. HHJ Burrows considered P’s capacity and the capacity assessment conducted in order to assist with the judgment.
It was concluded that P was ineligible to be deprived of her liberty in the hospital under the Mental Capacity Act. She was within the scope of the Mental Health Act under Case E. HHJ Burrows concluded that for the reasons given, P could have been detained and treated under the Mental Health Act.
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