Court of Protection gives key guidance on the deprivation of liberty of incapacitated patients potentially falling under the Mental Health Act 1983

Court of Protection gives key guidance on the deprivation of liberty of incapacitated patients potentially falling under the Mental Health Act 1983


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Alex Ruck Keene appeared for the Official Solicitor in W PCT v TB & Ors [2009] EWHC 1737 (Fam)], in which Roderic Wood J, sitting as a judge of the Court of Protection, considered for the first time the interaction of the Mental Health Act 1983 and the Mental Capacity Act 2005, as amended with effect from 1.4.09. After considering submissions on the law jointly prepared between the Applicant and the Official Solicitor to TB, Roderic Wood J held that TB, a woman suffering from a brain injury with an associated psychiatric disorderr, was eligible to be deprived of her liberty at a specialist care home. He concluded that the conditions for ineligibility in the Mental Capacity Act 2005 Sch.1A para.5 were not met, since she was not a ‘mental health patient’ within Sch.1A para.16 because the care home did not fall within the definition of a ‘health service hospital’ in the relevant provisions of the Mental Health Act 1983.


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