P v A Local Authority [2015] EWCOP 89

This case involved an application by P for an order under section 21A of the Mental Capacity Act 2005 discharging the standard authorisation, which authorised a deprivation of liberty in his current accommodation.

The case was before District Judge Glentworth

The facts
P was detained from 2001 to 2009 pursuant to section 37 of the Mental Health Act 1983. This followed his conviction for common assault, the victim of which was a child, who had alleged that P had indecently assaulted him and his younger sister. 

P moved to his current accommodation, a residential service with psychological, nursing and psychiatric provision together with social care support, whilst he was subject to a community treatment order pursuant to section 17 of the Mental Health Act 1983. This order was allowed to lapse and more recently he had been the subject of the standard authorisation, which had been continued by the court until the conclusion of proceedings.

Decision
The court was not satisfied that it was necessary in order to prevent harm to P for him to be a detained resident or that his being a detained resident was a proportionate response to the likelihood of him suffering harm. The court directed the termination of the standard authorisation.

Discussion
The expert consultant in Old Age Psychiatry considered this to be an unusual case in its use of DOLS as a way of managing P’s risk to himself as opposed to the MHA to manage risk to himself and others. He was of the opinion that P lacked capacity to decide whether to be accommodated at the placement for care and treatment. The Judge agreed that, despite P’s ability to understand and retain the information relevant to the decision, he was unable to use or weigh the information as part of the decision-making process.

In relation to the best interests requirement, which the Judge considered was not satisfied, the point was made on P’s behalf that, were it not for his perceived risk to children, P’s care and support needs could be met without depriving him of his liberty. It was said that the authorisation was used to deliver treatment mirroring inpatient treatment for mental disorder, normally delivered under the MHA.

The Judge concluded that there was a less restrictive option than that in place, namely for P to continue to reside at the placement, which the Judge considered to be appropriate, but without being subject to the standard authorisation. It was accepted that P wanted to remain for the time-being but without being subject to the restrictions, so that he could go out on his own into the community and potentially move on at some stage, albeit with support.

​Read the full judgment on Bailii.