Court of Protection Solicitors

The interaction between the Mental Capacity Act 2005 (MCA) and the Mental Health Act 1983 (MHA), particularly where the patient is detained under the MHA, has been highlighted by a recent judgment in PH v a CCG and a City Council [2022] EWCOP 12.

The case also answered some key questions around what the role of the Court of Protection (COP) is in such matters. It concerned PH, whom has a diagnosis of Autistic Spectrum Disorder, moderate learning disability, and Tourette’s Syndrome and was subject to detention under section 3 of the MHA.

The proceedings were brought by PH’s mother under s.16 of the MCA. She sought declarations as to which care and residence options were in PH’s best interests. The rationale for bringing the proceedings was to enable the COP to oversee PH’s discharge from the hospital into the community and to authorise PH’s future deprivation of liberty in the community once he was discharged.

There was, however, no prospect of PH being discharged from section 3 detention anytime soon. The COP acknowledged that it would, eventually, have to authorise PH’s care plan in the community once he was discharged from hospital. The CCG and the council were also working together and making genuine efforts to ensure that PH was moved towards discharge. There was also a funding application to NHS England which would allow for a bespoke supported living placement to be built to which PH could move upon discharge. Clearly, this would take a significant amount of time.

The question for the judge was what role the COP could play in this case, given that PH’s discharge was not on the horizon. When a person is detained under the MHA, the MCA defers to the MHA, and P will be treated in accordance with the rules of the MHA and decisions about their treatment will be outside of the remit of the COP. Once discharged into the community, things can become very different and the two frameworks will have to interact: the most notable case being where P will be deprived of their liberty in the community following discharge, where the COP will need to authorise this (until the introduction of Liberty Protection Safeguards).

There is case law which states that there is nothing wrong in principle for the COP to make best interests decisions and to authorise a deprivation of liberty where a patient is detained under the MHA, but these decisions will only be effective upon discharge.

The court decided that since PH’s discharge from hospital was “not imminent” it had no “useful and proper function in [the] process at this stage” and the application was dismissed. What is clear from the judgment is the following:

1. The COP does have jurisdiction over people who are detained under the MHA and can still play an active role in their care planning and can make best interests decisions


2. Whether or not the COP will become involved is a matter of case management


3. If a person is not likely to be discharged from MHA detention in the near future, the COP will most likely decline to be involved