BHCC v KD  EWCOP B2 (HHJ Farquhar)
Article 5 ECHR – DOLS ineligibility
KD was an 80-year-old lady with a long history of schizophrenia, slowly progressive dementia and a Parkinsonian syndrome. Previously detained under s.3 MHA 1983, she was now deprived of her liberty in a care home under a standard authorisation. The issue was whether she was ineligible.
The independent psychiatric expert who reported expressed disquiet over the comparative lack of statutory safeguards for someone lacking capacity receiving clozapine with regular blood tests due to side-effect risk of bone marrow suppression under the MCA when compared to a community treatment order under the MHA. He noted, in particular, the absence of an independent second opinion appointed doctor. But no-one was advocating for her detention in hospital and, pursuant to AG v BMBC and SNH  EWCOP 37, the medication could be given covertly.
In relation to eligibility, the Official Solicitor submitted that Case E in MCA Schedule 1A was not limited to those cases where hospital treatment was required. After much analysis, the court disagreed. So she was not ineligible for the standard authorisation.
A “mental health patient”, for the purposes of Case E, refers to a person accommodated in a hospital, not a care home. This is clear from the legislation and W Primary Care Trust v TB & Ors  EWHC 1737 (Fam) (a case not apparently cited to HHJ Farquhar). There may be more to this case than is apparent from the judgment but, on its face, there was in fact no eligibility issue as KD did not fall within Case E (nor were any of Cases A-D relevant)
But the case does illustrate the well-known reality that there are less treatment safeguards under the MCA when compared with the MHA. If KD were unbefriended and if clozapine constituted “serious medical treatment”, she would of course be entitled to an independent mental capacity advocate. It will also be interesting to see whether the Law Commission proposes additional safeguards for these types of treatments to equalise the informal MCA framework with the SOAD system under the MHA.