CASE LAW

Case Law

Case Law

W PCT v TB [2009] EWHC 1737

Chapter 1

Introduction

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..

How the Law Regulates Adult Social Care

The law regulates adult social care through a wide range of mechanisms, including statute law, secondary legislation and guidance. The following discussion provides a brief overview of the key principles that are fundamental to an understanding of how the law regulates adult social care. As a creature of statute, a local authority can only do, broadly speaking, what legislation expressly or impliedly authorises it to do.4 Statute law sets out the functions of local authorities through a hierarchy of various duties and powers: (1) there are a number of specific statutory duties (specific duties), which are owed to, and can in principle be enforced by, individual people who satisfy the relevant criteria;5 (2) there are several general public law duties placed on local authorities (general duties), also known as target duties, which are not expressed as being owed to any specific individual but rather towards the local population.6 General duties are therefore weaker in nature and less easily enforceable than specific duties; (3) there ...