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Family Law

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17 JUL 2009

VULNERABLE ADULT: W Primary Care Trust v TB [2009] EWHC 1737 (Fam)

(Family Division; Roderic Wood J; 17 July 2009)

The vulnerable adult suffered from an acquired brain injury, with an associated psychiatric disorder, sometimes referred to as 'chronic delusional disorder'. The vulnerable adult had a fixed belief that she was bleeding from her brain into her stomach, and frequently sought medical intervention to stop this 'bleeding'. The vulnerable adult had been living with a brother, but a recent deterioration in her behaviour had led to her admission to a home close to her brother and other siblings. It had been agreed by the professionals concerned that the vulnerable adult needed help, in the form of a complex package of intensive neuro-psychological and neuro-behavioural therapies in a residential unit. However, two issues of disagreement had subsequently emerged: (a) whether it was in the vulnerable adult's best interests to undergo neuro-psychiatric assessment prior to undergoing any neuro-behavioural treatment; and (b) whether the care home she was living in had the necessary expertise.

The Official Solicitor had raised concerns, and had arranged a meeting of the clinicians to discuss these issues. The main issue at the hearing, however, was whether the vulnerable adult was, in the meantime, to be deprived of her liberty at the care home, pursuant to the Mental Capacity Act 2005. The problem was that the vulnerable adult wanted to leave the home so that she could obtain treatment for 'bleeding' from a hospital. So far no force or physical restraint had been used to keep the vulnerable adult in the care home, but the home was concerned that would not necessarily be able to persuade her to stay much longer. There was no reported decision on this issue. If the adult were to be detained under the Mental Health Act 1983, the necessary specialist treatment would not be available to her; her current home did not accept patients under the 1983 Act.

The adult was not 'ineligible to be deprived of liberty' under the Mental Capacity 2005 Act. The care home was not a hospital within the meaning of the 2005 Act. The declarations sought by the primary care trust as to depriving the vulnerable adult of her liberty were not declarations or orders seeking 'to accommodate her in a hospital' and thus she was not a 'mental health patient' as defined. It followed that an order could be made under the 2005 Act, pursuant to authorisation under the Hospital Care Home Residents Deprivation of Liberty procedures. An interim order granted.

[Sadly, after the judgment in this case had been drafted, but before it had been delivered, the vulnerable adult in question committed suicide - the judge took the unusual step of issuing the judgment even though no declaration or orders would in fact be issued, on the basis that this issue was coming up frequently, and there was no reported decision on it.]

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