P was a 44-year-old man who was diagnosed as suffering from mild learning disability and acquired brain injury. P also suffers from bipolar and personality disorders.
P is currently subject to a Community Treatment Order (pursuant to section 17A Mental Health Act 1983) which contains a number of conditions, namely; (a) a condition of residence (b) to take his medication as prescribed (c) to abstain from alcohol, and (d) to attend all appointments.
By an application brought under the Mental Capacity Act 2005 (MCA 2005), Sunderland City Council sought section 15 declarations in respect of P’s capacity to make relevant decisions and also a declaration to deprive P of his liberty as his accommodation and in the community.
The First Respondent was P, represented by his litigation friend the Official Solicitor, the Second Respondent was the Mental Health NHS Trust which was jointly responsible (with the Applicant) for the funding of P’s care package, and the Third Respondent was P’s brother.
In reaching a conclusion in respect of P’s capacity, the core principles of the MCA 2005 were considered, starting with the statutory assumption that P has capacity unless it is established that he does not (section 1(2) MCA 2005); that he is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success (section 1(3) MCA 2005); that he is not to be treated as unable to make a decision merely because he makes an unwise decision (section 1(4) MCA 2005).
On the basis of the medical assessment in relation to P’s capacity it was concluded that P did not have capacity to make decisions about his care, residence and contact with others. It was also concluded that P was deprived of his liberty in a manner which is imputable to the state and that the deprivation of liberty was reasonable and proportion given P’s needs and as a result, the Judge authorised the deprivation of liberty in accordance with the care plan
The full judgement can be read here
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