Case Summary: BHCC v KD [2016] EWCOP B2

Case

BHCC v KD [2016] EWCOP B2

Topics

• Court of Protection
• Eligibility for standard authorisation and "mental health patient"

Practical Impact

• Highlighting the difference in safeguards for a vulnerable person depending on whether they fall within scope of Mental Capacity Act or Mental Health Act.

Summary

The issue which the Court was asked to determine was whether somebody was ineligible for a standard authorisation by virtue of the treatment which they were receiving for their mental health condition.

KD resided in a care home and was deprived of her liberty. She had schizophrenia together with other health conditions and was receiving clozapine, one of the side effects of which can be bone marrow suppression. She had previously been detained under the Mental Health Act.

One of the interesting points arising from the case was that the independent psychiatrist who was appointed had raised concerns that under the Mental Health Act in circumstances where she was receiving clozapine, but there were the risks regarding bone marrow she would have had the protection of a Second Opinion Appointed Doctor (SOAD). She was subject to less formal safeguards under the Mental Capacity Act than the Mental Health Act.

The Official Solicitor argued that she was ineligible for standard authorisation by virtue of the fact that Case E in the Mental Capacity Act Schedule 1A means that "a mental health patient" is ineligible and that this did not only apply to those where hospital treatment was being given. The Court disagreed and found that she was eligible for a standard authorisation as she was receiving treatment in a care home rather than hospital.