(Court of Protection; Charles J; 20 November 2009)
The deprivation of liberty of a person with a mental disorder who lacked capacity to consent must either be authorised by the Court of Protection, or in accordance with the procedures set out in the Mental Capacity Act 2005, or in order to give life-sustaining treatment or to prevent serious deterioration while a decision was sought from the court. Authorisation could only be given if the person was not ineligible to be deprived of liberty under the 2005 Act. In particular deprivation of liberty was only possible under the 2005 Act if the patient did not satisfy the criteria in the Mental Health Act 1983, which had primacy. The court should focus on the reason why the person should be deprived of his liberty by applying a 'but for' test, effectively incorporating an application of the status test or gateway set by para 12(1)(a) and (b) of Schedule 1A. Two key questions were: if the need for a package of physical treatment did not exist, would the court conclude that the person concerned should be detained in a hospital, in circumstances that amounted to a deprivation of liberty, and whether the person's need for the package of physical treatment was the only effective reason for considering that the person should be detained in hospital, in circumstances that amounted to a deprivation of liberty. If the answer to the first question was no, and the answer to the second question was yes, then the person was not a mental health patient.