briefing
Case law to clarify the Deprivation of Liberty
Safeguards
Introduction .........................................................................................................................................2
Case law in detail...............................................................................................................................3
DCC v KH and others ......................................................................................................................3
Key facts ...........................................................................................................................................................................................3
Issue before the court................................................................................................................................................................3
Outcome ............................................................................................................................................................................................4
W Primary Care Trust v TB .........................................................................................................4
Key facts ...........................................................................................................................................................................................4
Issue before the court................................................................................................................................................................4
Outcome ............................................................................................................................................................................................5
GJ v The Foundation Trust .........................................................................................................5
Key facts ...........................................................................................................................................................................................5
Issue before the court................................................................................................................................................................5
Outcome ............................................................................................................................................................................................5
A County Council v MB ..................................................................................................................6
Key facts ...........................................................................................................................................................................................6
Issue before the court................................................................................................................................................................7
Outcome ............................................................................................................................................................................................7
MIG and MEG ......................................................................................................................................8
Key facts ...........................................................................................................................................................................................8
Issue before the court (at first instance) ........................................................................................................................8
Outcome ............................................................................................................................................................................................8
Court of Appeal Decision..........................................................................................................................................................9
Conclusion .......................................................................................................................................................................................9
Re A and Re C .....................................................................................................................................9
Key facts ...........................................................................................................................................................................................9
Issue before the court................................................................................................................................................................9
Outcome ......................................................................................................................................................................................... 10
BB............................................................................................................................................................ 10
Key facts ........................................................................................................................................................................................ 10
Issue before the court............................................................................................................................................................. 10
Outcome ......................................................................................................................................................................................... 11
LB Hillingdon v Steven Neary ................................................................................................ 11
Key facts ........................................................................................................................................................................................ 11
Issue before the court............................................................................................................................................................. 11
Outcome ......................................................................................................................................................................................... 12
87033989
1
Cheshire West and Chester Council v P ............................................................................. 12
Key facts ........................................................................................................................................................................................ 12
Issue before the court............................................................................................................................................................. 13
Outcome ......................................................................................................................................................................................... 13
DN v Northumberland Tyne & Wear NHS Foundation Trust................................ 13
Key facts ........................................................................................................................................................................................ 13
Issue before the court............................................................................................................................................................. 13
Outcome ......................................................................................................................................................................................... 14
RK v (1) BCC (2) YB (3) AK ...................................................................................................... 14
Key facts ........................................................................................................................................................................................ 14
Issue before the court............................................................................................................................................................. 14
Outcome ......................................................................................................................................................................................... 15
Legislation.......................................................................................................................................... 15
Case law............................................................................................................................................... 15
Useful links........................................................................................................................................ 15
Introduction
The Mental Capacity Act Deprivation of Liberty Safeguards (DOLS) has been in force since 1 April 2009. However,
there is still a considerable degree of uncertainty in relation to their application.
Although DOLS form part of the Mental Capacity Act 2005 (MCA 2005), they were introduced under the Mental
Health Act 2007. There is a detailed code of practice in relation to their application. However, there have been a
number of circumstances where managing authorities and supervisory bodies have not felt that the position was
sufficiently clear, and they have turned to the courts for interpretation of the provisions of the DOLS legislation and
accompanying guidance.
This document considers the relevant facts, issues and outcomes of the following cases in order to set out the way
in which recent case law has clarified the current DOLS legislation and guidance.
1
DCC v KH and others - This case considered the scope of a standard authorisation and the issue of
restraint. The Court of Protection decided that permission from the court is not required when returning a
patient to their place of residence where a standard authorisation is already in existence, even if the use of
restraint is necessary.
2
W Primary Care Trust v TB - This case considered whether or not a patient who lacked capacity met the
eligibility criteria in order to be deprived of her liberty in accordance with the DOLS criteria. It was found
that TB was not a mental health patient, as defined under Schedule 1A MCA 2005, because the
authorisation would relate to a care home, which was not a hospital within the meaning of S145(1) of the
Mental Health Act 1983 (MHA 1983). As such, TB would be eligible to be deprived of her liberty in
accordance with DOLS if it were in her best interests.
3
GJ v The Foundation Trust - This was another case considering the issue of eligibility and providing
guidance on the relationship between the MCA 2005, and the MHA 1983 in circumstances where a person
is deprived of their liberty in order to be treated in hospital wholly or partly for their mental disorder.
4
A County Council v MB – This case provides guidance in relation to the use of urgent authorisations and
details best practice in relation to documentation for authorisations.
87033989
2
5
MIG and MEG – The initial judgment of Judge Parker that neither girl was deprived of her liberty was
controversial because her reasoning included references to the “intention”, “purpose”, “motivation” and
“reasons” for the care arrangements. The Court of Appeal agreed that neither was being deprived of their
liberty, but took a significantly different approach to the reasons for this than Judge Parker.
6
Re A and Re C – This case considered whether the circumstances of domestic care for A and C by their
families, in their own homes, amounted to a deprivation of liberty and what the role of the state is in such
cases.
7
BB – This case considers both the circumstances that amount to a deprivation of liberty and the operation
of Schedule 1A in terms of eligibility to fall within the DOLS regime.
8
Cheshire West and Chester Council v P – This case considers the factors indicating whether or not a
deprivation of liberty is occurring. The court concluded that the relevant comparator is the standard or
normality for someone with the relevant condition.
9
LB Hillingdon v Stephen Neary – This case provides useful guidance in relation to the scope of the
DOLS regime and the referral of disputes to the Court of Protection.
10
DN v Northumberland Tyne & Wear NHS Foundation Trust – This important case clarifies the interplay
between the MHA 1983 and the DOLS regime.
11
RK – This case was concerning the provision of accommodation to a child under section 20 Children Act
1989 and whether that was capable of giving rise to a deprivation of liberty. While parents can impose or
authorise others to impose restrictions on their child, those restrictions must not amount to a deprivation of
liberty unless it is authorised in the appropriate way. In this particular case the restrictions imposed did not
amount to a DOL.
Case law in detail
DCC v KH and others
Key facts
o
KH lacked capacity to decide where he should live. Previous orders declared that it was lawful and in KH’s
best interests for him to reside at his current placement; and a standard authorisation had already been
given in this respect.
o
KH was permitted to have supported contact with his mother, however he was unhappy about returning to
his placement following this contact and expressed his intentions not to return.
Issue before the court
o
87033989
DCC, the local authority, sought a declaration that it would be lawful to use reasonable force for the
shortest possible duration in order for KH to be returned to his placement following contact with his mother.
It was anticipated that it might be necessary to restrain KH to the extent that it would deprive him of his
liberty.
3
o
DCC felt that it was not clear whether the current standard authorisation extended to the use of restraint in
order to enforce KH’s return to the placement, or whether a further declaration would be needed.
o
Paragraphs 2.14 and 2.15 of the DOLS Code of Practice were considered:
o
2.14: Transporting a person from his or her home, or another location, to a hospital or care home
will not usually amount to a deprivation of that person’s liberty.
o
2.15: There are very few exceptional circumstances where taking a person to a hospital or care
home amounts to a deprivation of liberty, for example where it is necessary to do more than
persuade or restrain a person for the purpose of transportation or where the journey is
exceptionally long. In such circumstances, it may be necessary to seek an order from the Court of
Protection to make sure the journey is taken on a lawful basis.
Outcome
o
While the judge agreed that it would be appropriate for DCC to use proportionate restraint in KH’s best
interests if KH resisted his return to the placement; the judge dismissed DCC’s application for a declaration
in respect of this.
o
The declaration was dismissed on the grounds that the application was unnecessary, as the standard
authorisation already in place offered sufficient protection for DCC.
o
The judge also stated that sections 5 and 6 MCA 2005 already make adequate provision for the use of
restraint where it is in the best interests of an individual.
o
Paragraphs 2.14 and 2.15 of the DOLS Code of Practice are intended to cover the circumstances where a
person needs to be transported to a hospital or care home in advance of a standard authorisation being
made.
W Primary Care Trust v TB
Key facts
o
TB lacked capacity to make decisions as to where she should reside and what treatment she should
receive. She suffered from chronic delusional disorder and wished to be placed in an NHS hospital for
further tests. It was disputed as to whether this would be in her best interests.
o
The PCT applied for a standard authorisation in order for TB to receive residential treatment in a care
home in her best interests. However, the eligibility assessor questioned whether TB should fall within the
scope of the MHA 1983 rather than MCA 2005.
Issue before the court
o
The PCT (and the official solicitor representing TB) applied for a declaration that TB was eligible to be
deprived of her liberty.
o
If TB was not eligible to be deprived of her liberty, then the only lawful way to detain her would be under
the provisions of the MHA 1983.
87033989
4
Outcome
o
The judge found that TB could only be a mental health patient if she was accommodated in hospital for the
purpose of receiving treatment for a mental disorder.
o
The residential placement concerned was a care home registered under the Care Standards Act 2000,
rather than a hospital. Therefore, TB would not be considered to be a mental health patient.
o
As a result TB’s detention fell outside of the ineligibility categories set out in Paragraph 2, Schedule 1A
MCA 2005 meaning that an order could be made or standard authorisation given, in accordance with
DOLS provisions.
o
The location of a person’s care is clearly relevant to their eligibility under the MCA 2005.
GJ v The Foundation Trust
Key facts
o
GJ suffered from a chronic psychiatric illness and lacked capacity to make decisions in relation to his
residence, care and treatment.
o
GJ also suffered from diabetes which he was not able to manage appropriately.
o
He had previously been detained under the MHA 1983.
o
GJ was transferred back to a mental health unit after absconding several times from the care home in
which he had been residing previously. At the clinic he was subject to DOLS authorisations while he
remained there to receive general nursing care and treatment.
Issue before the court
o
GJ claimed that he met the criteria for detention under section 2 and section 3 MHA 1983, as he was
receiving treatment for a mental disorder.
o
The trust responded that GJ was primarily being treated for his diabetes and not for his mental disorder;
therefore he remained eligible under the DOLS regime. The treatment for his mental disorder took the form
of care and support. He was prescribed various medications for his mental disorder but he was never
forced to take these against his will.
o
The court was asked to clarify the relationship between the MCA 2005 and the MHA 1983.
Outcome
o
The judge found that the main focus should be on the reason for depriving the person of their liberty. The
decision-maker must ask whether, “but for” the package of physical treatment, the person should be
detained in hospital.
o
The focus is on what action is proposed to be authorised.
87033989
5
o
When it applies the MHA 1983 has priority over the MCA 2005. The MCA 2005 therefore does not offer an
alternative solution to the application of the MHA 1983.
o
If a patient does not object to what is proposed, he is eligible to be deprived of his liberty under the MCA
2005.
o
In considering whether a person is within the scope of the MHA 1983, the decision-maker must consider
whether a successful application could be made under section 2 or section 3 MHA 1983. For example,
whether the patient currently meets the criteria for detention (referred to as the “status test”) and whether
the patient objects to being a mental health patient (referred to as the “paragraph 5 test” ie, paragraph 5,
Schedule 1A, MCA 2005).
o
In particular, practitioners should consider:
o
whether, if the need for physical treatment did not exist, the person would be detained in hospital
in circumstances that amount to a deprivation of liberty; and
o
whether the only effective reason for the deprivation of liberty is the person’s need for physical
treatment.
o
If this is the case then the patient is not a mental health patient and would fall under the DOLS regime.
o
The judgment endorses the guidance set out in paragraph 4.45 of the DOLS Code of Practice, “If the
proposed authorisation relates to deprivation of liberty in a hospital wholly or partly for the purpose of
treatment of mental disorder, then the relevant person will not be eligible if:
o
o
they object to being admitted to hospital, or to some or all of the treatment they will receive there
for mental disorder; and
o
they meet the criteria for an application for admission under section 2 or section 3 of the Mental
Health Act 1983.
In this case, it was found that the only effective reason for GJ remaining in hospital was the need for him to
be treated for his diabetes. Although GJ suffered from a mental disorder there was no authority for him to
be detained in hospital in order to receive treatment for his mental disorder; therefore GJ was not within
the scope of the MHA 1983.
A County Council v MB
Key facts
o
MB suffered from Alzheimer’s and was resident in a nursing home following an incident where her
husband had admitted to slapping and restraining her.
o
An urgent authorisation was given, followed by a standard authorisation for a period of 28 days.
o
A further standard authorisation was requested; however the Best Interests Assessor (BIA) determined
that, although MB was deprived of her liberty, it was not in her best interests to reside at the nursing home.
She had lost a significant amount of weight and appeared distressed. The BIA did not think it was safe for
MB to return home without 24 hour care being put in place, but MB’s husband was not willing to accept
this.
87033989
6
o
A second urgent authorisation was issued, which was expressed to last “until the Court of Protection made
its determination”.
Issue before the court
o
The managing authority applied to the Court of Protection for a decision in relation to the residency of MB.
o
The judgment sets out guidance on how to make urgent applications to the court, and how the paperwork
for authorisations should be completed as a matter of best practice.
Outcome
o
There could not be a second urgent authorisation granted in respect of the same deprivation of liberty. The
only way the deprivation of liberty could have been lawful would have been either a further standard
authorisation, or a court order.
o
The court cannot provide retrospective authorisation, and could only make the deprivation of liberty lawful
from that point onwards.
o
Anything done after an authorisation ends must be done under section 5 MCA in the person’s best
interests and the rationale for each action should be clearly recorded in the medical notes.
o
The court will need to know what the decision maker believed and what sections of the MCA 2005 they
considered in reaching their conclusion.
o
Section 4B MCA 2005 allows a deprivation of liberty while an application is made to court; however there
are three conditions to be satisfied, including that the deprivation of liberty is necessary for life sustaining
treatment or a vital act. A vital act is any act that the person doing it reasonably believes to be necessary
to prevent a serious deterioration in the person's condition.
o
In making their recommendations, assessors should have regard to the alternatives that are practically
available.
o
In terms of best practice, other points to note include the following:
o
87033989
o
the time that the authority is granted should be noted on the papers;
o
the day on which the authority is granted counts as “day one” for the calculation of time periods;
and
o
interim orders can be obtained from the court out-of-hours.
In this case, MB had been deprived of her liberty from the point where the standard authorisation expired
until the making of a court order authorising a continued deprivation of liberty. However, no damages were
sought as a declaration was thought to be sufficient.
7
MIG and MEG
Key facts
o
Proceedings were brought by the County Council with social work responsibility for two girls, MIG (aged
18) and MEG (aged 17), both with moderate to severe learning disabilities.
o
MIG was living with her foster family and MEG was placed in a small residential care home. Both were
under continuous supervision and control for their own care; both lacked capacity to make decisions about
their care and residence.
Issue before the court (at first instance)
o
The case was concerned with issues of contact and care, but the official solicitor also raised the question
of whether MIG and MEG were deprived of their liberty.
Outcome
o
The court has power under section 2(5) MCA 2005 to make orders depriving 16-18-year-olds of their
liberty in their best interests.
o
It is possible for a deprivation of liberty to occur in a domestic setting, such as a family home.
o
The foster carer, although self-employed, was an agent of the local authority; therefore any deprivation of
liberty would be imputable to the state. However, there was no deprivation of liberty simply by virtue of
placing someone in foster care or a care home who lacks capacity to consent.
o
In considering whether there is a deprivation, it is relevant to consider the alternative – ie, the life that the
person would be leading if not in that placement.
o
The judge found that neither MIG nor MEG was deprived of their liberty for various reasons, including the
following:
o
87033989
o
“Each lacks freedom and autonomy dictated by their own disability, rather than because it is
imposed on them by their carers. Each is under the continuous supervision and control of her
carers … so as to meet her care needs, rather than to restrain her in any way…”
o
No other less restrictive or invasive arrangements could be devised that would meet their care
needs.
o
A lack of capacity to consent or object to living arrangements cannot itself create a deprivation of
liberty.
Judge Parker’s reasoning included references to the “intention”, “purpose”, “motivation” and “reasons” for
the care arrangements. Parker J herself, accepted that good intentions are not relevant to the issue of
whether or not someone is objectively being deprived of liberty, but then went on (in the same paragraph)
to say that it was permissible in this case to look at the “reasons” for MIG and MEG living where they were.
8
Court of Appeal decision
The leading judgment is from Lord Justice Wilson, who reviewed the factors that are relevant (or not) when
considering whether there is an objective deprivation of liberty, as follows:
o
A person’s happiness is not relevant to whether he is being deprived of his liberty.
o
However, it is relevant to consider if a person objects to the confinement because this is likely to
lead to conflict and confrontation.
o
Use of medication is relevant, especially if it may suppress a person’s ability to express his wishes
and all the more so if it is forced on the person.
o
It was inappropriate to take into account the fact that the “purpose” of the care package was to
further the person's best interests.
o
On the other hand, the “relative normality” of the arrangements was very important. “If the person
is living with her parents, or other members of their natural family in their home, they are living, in
that respect, the most normal life possible. Typically, but sadly not always, there will be no
deprivation of liberty in such circumstances”.
Conclusion
The main development in this case is the move from consideration of “purpose” and “reasons” (Parker J) to an
emphasis on issue of the “relative normality” of the placement (Wilson LJ). This helps to avoid some of the
problems persuading people that there can be a deprivation of liberty despite their good intentions, and that the
DOLS or Court of Protection process should be invoked where appropriate.
The Court of Appeal has offered some useful guidance on what is not relevant (the purpose / reasons for the
deprivation, whether P is happy there, and whether P’s situation is an improvement), but we still do not have a full
understanding of objective deprivation of liberty.
Re A and Re C
Key facts
o
A (an 8-year-old girl) and C (a 20-year-old woman) were both at particular risk at night due to a genetic
condition (Smith Magenis syndrome), associated with learning disability, disturbed sleep patterns and
serious self harming behaviour.
o
Both lived in the family home and, as a last resort, each family had taken to locking their daughter in the
bedroom overnight. It was agreed that there was no real alternative.
Issue before the court
o
87033989
The court had to consider whether this was a deprivation of liberty, despite being only an act of private
individuals rather than the state, and what role the state (through the local authority) has in such cases.
9
Outcome
o
Despite being locked in a room for 10 – 12 hours overnight, it was not found that A or C were being
deprived of their liberty.
o
The local authority’s mere knowledge of what was going on in the family home was not enough to make
the state responsible for this regime. The role of the local authority is to assess needs and to provide
support. They should enlist the help of the courts if more intervention is required.
o
However, there is a positive obligation on the state (through the local authority) to take positive steps to
protect people from such interference by other private individuals.
o
Where the local authority thinks that a deprivation of liberty might be occurring in a private household, it
has obligations to:
o
investigate and monitor whether there is a deprivation of liberty;
o
take steps to intervene to bring any deprivation to an end by providing additional support and
resources if required; and
o
if it is not resolved, bring the matter to the Court of Protection.
BB
Key facts
o
BB was a 31-year-old deaf Bangladeshi woman diagnosed with Schizoaffective Disorder, and probable
learning difficulties.
o
She had been removed from the care of her parents by the local authority, against the wishes of her family,
following reports that she was being assaulted at home.
o
It was common ground that she lacked the capacity to decide where she should live.
o
In hospital she was sedated and her capacity to have free access to her family was limited. Her
movements were under the strict control and supervision of hospital staff.
o
When a standard authorisation was requested, BB was found to be ineligible because a psychiatrist
expressed the opinion that she could be treated under the MHA 1983. However, the decision was made
not to section her.
Issue before the court
The court was required to decide, as a preliminary issue whether, to make a declaration that BB was being
deprived of her liberty.
87033989
o
The first question was whether BB was ineligible to be deprived of her liberty.
o
If she was eligible, then it must be considered whether her circumstances amounted to a
deprivation of liberty.
10
Outcome
o
It was not established that BB met the criteria under section 2 or section 3 of the MHA 1983. She was not,
therefore, ineligible to be deprived of her liberty within the meaning of the eligibility requirement set out in
Schedule 1A MCA 2005, under Case E. (This is where a person is within the scope of the MHA 1983, but
not subject to any of the mental health regimes.)
o
The decision maker should approach Schedule 1A MCA 2005 by asking himself whether the person
satisfies section 2 or section 3 MHA 1983 and whether, if an application was made, they would detain the
person.
o
When considering the factors relating to deprivation of liberty, these should be considered cumulatively,
rather than in isolation.
o
Taking all of the factors into account, the conclusion was that BB was being deprived of her liberty in
hospital. However, the placement was in her best interests. The court declared that it was lawful for her to
reside there in the interim, and that it was lawful for the trust to take all reasonable steps to prevent her
from leaving.
LB Hillingdon v Steven Neary
Key facts
o
SN, a 21-year-old with autism and a severe learning disability, was cared for by his father. The London
Borough of Hillingdon (the local authority) arranged care services to support SN at home and also provided
respite care.
o
In January 2010, SN was placed in a support unit for a short period of respite care at the request of his
father; however the local authority later refused to return SN to the care of his father and DOLS
authorisations were put in place between April and December 2010. This was consistently challenged by
SN’s father who was informed that he could take the matter to the Court of Protection if he wanted to
dispute the DOLS authorisations granted.
o
Eventually, in late October 2010 the local authority applied to the Court of Protection.
Issue before the court
There were both legal and practical issues before the court
o
Legally, the court was required to consider whether, despite the DOLS authorisations, SN’s residence at
the support unit amounted to an unlawful deprivation of liberty.
o
Practically, the court looked at the purpose of DOLS, decision making and the role of the supervisory body.
Guidance was provided in respect of the scope of the DOLS regime and the referral of disputes to the
Court of Protection.
87033989
11
Outcome
o
The court concluded that the local authority had breached SN’s right to respect for family life (Article 8
ECHR), and had unlawfully deprived him of his liberty in contravention of Article 5(1) ECHR.
o
It was also declared that the local authority deprived SN of his entitlement to a speedy decision by the
court on the lawfulness of his detention (contrary to Article 5(4) ECHR) by:
o
failing to refer the matter to the Court of Protection sooner;
o
failing to promptly appoint an Independent Mental Capacity Advocate (IMCA); and
o
failing to conduct an effective review of the Best Interests Assessment.
o
The Best Interests Assessment in this case was found to be inadequate and had not addressed possible
alternative care options. The court criticised the supervisory body for authorising a DOL without adequately
scrutinising and challenging the defective assessment. The court stated that it is the role of the supervisory
body to scrutinise assessments, not rubber stamp them because without a thorough and reasoned BIA,
the scheme will not provide adequate protection for the vulnerable it was designed to protect.
o
The judge emphasised that the DOLS regime is “not to be used by a local authority as a means of getting
its own way on the question of whether it is in the person’s best interests to be in the place at all…far from
being a safeguard, the way in which the DOL process was used masked the real deprivation of liberty,
which was the refusal to allow [SN] to go home.”
o
The decision emphasises that the onus is on the local authority (or PCT) to bring deprivation of liberty
cases to court in a timely fashion whenever there is any doubt regarding the DOL, best interests or
proportionality, concluding that “there is an obligation on the State (under Article 5(4) ECHR) to ensure that
a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention
reviewed speedily by a court”.
o
The DOLS regime should not be used to inappropriately enforce a care planning decision or as a
mechanism for resolving wider disputes, such as disagreements as whether a person should live at home
or in a residential setting.
Cheshire West and Chester Council v P
Key facts
o
P, a 39-year-old man, was born with Cerebral Palsy and Down’s Syndrome and lacked capacity to make
decisions about his care and accommodation. In November 2009 P moved to Z House, a residential care
home. He had a history of challenging and uncooperative behaviour.
o
P was incontinent and had developed a habit of tearing pieces off his continence pad and ingesting them.
Staff were required to intervene to remove the material from his mouth. To prevent him from accessing the
pad his carers used an all-in-one body suit zipped at the back.
o
P was unable to leave Z House without being accompanied by a member of staff and this was facilitated
regularly. It was not disputed that this was an appropriate placement.
87033989
12
o
In April 2011, a judge decided that P was deprived of his liberty in his local authority placement as staff
had complete and effective control over his life; however it was lawful for him to continue to reside at Z
House.
Issue before the court
o
The local authority appealed the decision, to the Court of Appeal, in relation to the deprivation of liberty in
this case, pointing to numerous factors which they claimed indicated that there was no deprivation of
liberty.
Outcome
o
Lord Justice Munby draws together the previous relevant case law.
o
It was decided that P’s care plan at Z House did not amount to a deprivation of liberty.
o
The court explained that it is legitimate to regard the objective “reason” why someone was placed and
treated as they were, and to the objective “purpose” of the treatment. The judge accepted that a good
intention could not render innocuous; something that would otherwise be a deprivation of liberty.
o
This issue in this case involved finding the relevant comparator to assess the relative normality of the
situation. Some people are inherently restricted by their circumstances, and the court must consider the
standard of normality for someone with the relevant condition and not the normality of the life of an ablebodied person.
o
The court concluded that, “P is living a life which is as normal as it can be for someone in his situation”.
The care that P was receiving was required as a result of his condition.
DN v Northumberland Tyne & Wear NHS Foundation Trust
Key facts
o
DN was detained under section 3 MHA 1983 due to Alcohol Dependency Syndrome, which affected his
memory and cognitive functioning. Those difficulties left him without capacity to decide where to live or
whether to buy alcohol.
o
He made an application to the tribunal for discharge from detention under the MHA 1983 on the basis that,
if arrangements were made under DOLS that he was accompanied at all times (to prevent him from buying
alcohol), he would not be detainable under the MHA 1983.
Issue before the court
o
87033989
The Upper Tribunal considered what is meant by being ineligible for DOLS (under Schedule A1 MCA
2005) on account of being “within the scope” of the MHA 1983. This was particularly in light of the fact that
in GJ (see above) it had been stated that the MHA had primacy over the MCA.
13
Outcome
o
The judge concluded that DN was outside the scope of the MHA 1983, and therefore eligible for an
authorisation under the DOLS regime.
o
By taking into account the possibility of a less restrictive alternative under DOLS, it could not be said that
detention under the MHA 1983 was necessary.
o
In addition, the proposed treatment (supervision and distraction from buying alcohol) was not specialist
mental health treatment for the purposes of s145 MHA 1983.
o
The Department of Health did not wish to become a party but wrote to the Tribunal stating, “Decisionmakers under the MHA must, inevitably, consider what other options are available when deciding whether
it is right for compulsory measures under the MHA to be used, or continue to be used. The use of the MCA
(with or without an authorisation under MCA DOLS) may be one of those options.”
o
They also stated that “it was specifically in the context of the interpretation of Case E [schedule 1A
eligibility requirements] that Mr Justice Charles in J talked about the MHA having “primacy”. Outside that
context the department does not understand him to have been making a more general statement … the
department does not think it would actually be possible to say, in general, which has primacy over the
other.”
o
The case clarifies that a patient who is detained in hospital under the MHA 1983 cannot be excluded from
DOLS on the basis that they are already within the scope of the MHA 1983. If DOLS arrangements would
be sufficient to meet the needs of the patient, the necessity test for detention under the MHA 1983 is not
met; therefore the patient is not excluded from DOLS.
o
As the responsible authority had not participated in the appeal proceedings, the judge ordered a re-hearing
by the First-tier Tribunal, taking the above into account.
RK v (1) BCC (2) YB (3) AK
Key facts
o
RK, a minor, had been accommodated in a care home pursuant to an agreement between her parents and
the local authority.
o
She appealed against the decision at first instance that accommodation of a child pursuant to section 20
Children Act 1989 could not give rise to a deprivation of liberty, and in any event the restrictions imposed
did not amount to a deprivation.
Issue before the court
o
87033989
The court was required to consider whether an adult, in the exercise of parental responsibility, could
impose or authorise others to impose restrictions on the liberty of their child; and whether those restrictions
could amount to a deprivation of liberty.
14
Outcome
o
The Court of Appeal decided that an adult in the exercise of parental responsibility may impose, or
authorise others to impose, restrictions upon the liberty of a child. However, such restrictions may not in
their totality amount to a deprivation of liberty, without appropriate authorisation.
o
In this case the court found that the parents had consented to the arrangements by which their daughter
was placed in accommodation, under section 20 Children Act 1989.
o
The restrictions placed on RK were “no more than what was reasonably required to protect RK from
harming herself or others within her range” as it was impossible to care for RK in her own home without an
intensive support package. The judge went on to say that “wherever RK is accommodated the same
restrictions on her liberty are essential”.
Contacts
Stephen King, Partner. Tel: 01603 693257. Email [email protected]
Jill Mason, Partner. Tel: 0121 456 8367 Email: [email protected]
Stuart Knowles, Consultant Solicitor. Tel: 0121 456 8461. Email: [email protected]
Jill Weston, Associate: Tel: 0121 456 8450. Email: [email protected]
Lucy Johnston, Associate. Tel: 01223 222366. Email [email protected]
Ruth Creed, Associate. Tel: 0121 456 8323. Email: [email protected]
Duncan Astill, Associate. Tel: 0121 456 8318. Email: [email protected]
Philip Grey, Associate. Tel: 01223 222463. Email: [email protected]
Lee Parkhill, Senior Solicitor. Tel: 0121 456 8420. Email: [email protected]
Charlotte Mawdesley, Senior Solicitor. Tel: 0121 456 8402. Email: [email protected]
Lorna Shastri-Hurst, Senior Solicitor. Tel: 0121 456 8453. Email: [email protected]
Legislation
Mental Capacity Act 2005
Mental Health Act 2007
Care Standards Act 2000
Case law
DCC v KH and others
W Primary Care Trust v TB
GJ v The Foundation Trust
A County Council v MB
MIG and MEG
Re A and Re C
Useful links
Deprivation of liberty safeguards - Code of Practice
Deprivation of Liberty Safeguards: A guide for hospitals and care homes
Deprivation of Liberty Safeguards: A guide for primary care trusts and local authorities
Deprivation of Liberty Safeguards: A guide for relevant person's representatives
Deprivation of liberty safeguards: regulations and assessor training
87033989
15
Mental Capacity Act 2005: Deprivation of liberty safeguards briefing sheet
What are the Mental Capacity Act Deprivation of Liberty Safeguards? - Guidance leaflet
Mills & Reeve Briefing: A County Council v MB
Mills & reeve Briefing: You cannot pick and choose
Mills & Reeve Briefing: Care planning leads to unlawful deprivation of liberty - June 2011
Mills & Reeve Briefing: A significant judgment on deprivation of liberty - November 2011
Mills & Reeve Briefing: RK - another deprivation of liberty case - December 2011
www.mills-reeve.com T +44(0)844 561 0011
Mills & Reeve LLP is a limited liability partnership authorised and regulated by the Solicitors Regulation Authority and registered in England and Wales with registered number OC326165. Its
registered office is at Fountain House, 130 Fenchurch Street, London, EC3M 5DJ, which is the London office of Mills & Reeve LLP. A list of members may be inspected at any of the LLP's
offices. The term "partner" is used to refer to a member of Mills & Reeve LLP.
The contents of this document are copyright © Mills & Reeve LLP. All rights reserved. This document contains general advice and comments only and therefore specific legal advice should be
taken before reliance is placed upon it in any particular circumstances. Where hyperlinks are provided to third party websites, Mills & Reeve LLP is not responsible for the content of such sites.
Mills & Reeve LLP will process your personal data for its business and marketing activities fairly and lawfully in accordance with professional standards and the Data Protection Act 1998. If you
do not wish to receive any marketing communications from Mills & Reeve LLP, please contact Suzannah Armstrong on 01603 693459 or email [email protected]
87033989
16