When consideration is being given to the use of the Deprivation of Liberty Safeguards under the Mental Capacity Act 2005 (MCA) one of the assessments is the eligibility assessment. The purpose of it is to establish whether the relevant person should be covered by the Mental Health Act 1983 (MHA) or by the MCA.

The Court of Protection has recently considered which individuals are ineligible to be deprived of their liberty under the Mental Capacity Act 2005 (the MCA) by reason of being a “mental health patient” within the scope of the MHA. The judgment can be accessed here.  

Essentially, the location of the person’s care is relevant to determining the question. Schedule 1A of the MCA sets out categories of people who are ineligible to be deprived of their liberty under the MCA. A person is ineligible if they are a “mental health patient” and object to being a mental health patient, or object to some or all of their mental health treatment. A “mental health patient” is defined as being a person “accommodated in a hospital for the purposes of being given medical treatment for a mental disorder”.  

The MCA defines “hospital” by reference to the Mental Health Act 1983 which says a hospital is either an establishment registered as an independent hospital under the Care Standards Act 2000 or a “health service hospital” within the meaning of the NHS Act 2006.  

TB was accommodated in a “care home” registered under the Care Standards Act 2000, not in an independent hospital or a health service hospital. She was not therefore a “mental health patient”. As TB was not a “mental health patient” she was not ineligible to be deprived of her liberty under the MCA. In light of this a declaration was granted that it was lawful to deprive her of her liberty at the care home.  

However, had TB been accommodated in a hospital for the purposes of receiving mental health treatment she would not have been eligible to be deprived of her liberty under the MCA.  

This is the first reported case in which the court has considered the line between powers of detention under the MCA and the Mental Health Act 1983. The court has confirmed that the location of the care may determine whether the MCA, and the Deprivation of Liberty Safeguards, can be used to authorise detention.