The President of the Court of Protection (Sir Mark Potter) has recently confirmed, in the case of A Primary Care Trust v P, AH and A Local Authority, that the Court of Protection has the power to authorise a deprivation of liberty by making a declaration under section 15(1)(c) of the Mental Capacity Act 2005.

The court followed an earlier decision in the case of City of Sunderland v PS in which the court indicated that the following were necessary to authorise a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights:

  • the application for authorisation must be made before the deprivation commences;
  • there must be evidence of “unsound mind” of a kind and degree warranting compulsory confinement; and
  • there must be provision for adequate review at reasonable intervals to ascertain whether there persists unsoundness of mind warranting compulsory confinement.

The case related to a 22-year-old patient, P, who suffered from severe, complex and uncontrolled epilepsy. The proceedings were issued to secure medical assessment and treatment because P and his mother were not complying with the treatment offered by the PCT. He was at risk of cumulative brain damage and sudden death.

P’s adoptive mother became increasingly sceptical about the role of conventional medicine. Inpatient admission was proposed and proceedings issued in light of expected opposition to the admission. During the life of the case, arrangements broke down, appointments were cancelled, consent was withdrawn by mum and she eventually locked herself and P in the house.

One of the difficulties in the case was determining how far P’s views were his own rather than an adoption and repetition of his mother’s.

It was decided that the inpatient admission was in his best interests and the court order provided for a reasonable and proportionate degree of force to be used if P was resistant to transfer or assessment and treatment.