DOLS: where are we now?

Wednesday 27 March 2013

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The mechanics of depriving an incapacitated adult of their liberty, in their best interests, are, by now well known.

I will, however, recapitulate them, briefly, before turning to the vexed question, of what exactly is a deprivation of liberty?

It may be worth while pointing out, at the outset, that from the local authority perspective, there are (very broadly) 2 different types of cases. The first type of case is when an incapacitated adult (“P”) is in a care home, or is about to go into residential care, where P is compliant and P’s family agree with the local authority. This type of case raises the question of whether there is a DOL at all. The second type of case is where there is a dispute between P (or, more likely, P’s family) and the local authority about where P should live, or where P needs to be “rescued”. In this type of case, there almost always will be a DOL and the question is how the local authority handles the situation in the fairest way (and makes sure the DOL is lawful!).

I propose to take the 2nd type of case first, where concerns have arisen about the plight of P, who seems to be unable to look after themselves, or who seems to be being mistreated.

Right at the outset, there are often difficult judgments to be made, about how firm/intrusive to be.

In most cases, local authorities will be able to take the preferable course of finding out what is happening and, if need be, remedying any problems, by the usual expedients of talking to people, writing letters, completing community care assessments and making sure that appropriate support is in place.

Some cases are a lot more problematic, however.

Where more forcefulness is required, section 115 of the MHA 1983 allows an approved mental health professional, with ID, to enter and inspect premises where a mentally disordered patient is living, if he or she has reasonable cause to suspect that the patient is not under proper care. The AMHP can be accompanied by a police officer, who can enter and search the premises under section 17(1)(e) of the Police and Criminal Evidence Act, if it turns out that action is required to save “life or limb”.

If that fails, the AMHP can obtain a magistrates’ warrant under section 135 of the MHA 1983 if it appears that a person believed to be suffering from a mental disorder is being ill-treated, neglected or kept otherwise than under proper control or, being unable to care for themselves, is living alone. The warrant authorises a constable to enter, if need be by force, and remove the person to a place of safety with a view to the making of an application under the MHA 1983 or of other arrangements for his treatment or care.

I would suggest, however, that these remedies should only be used in extreme and urgent cases, to be followed as soon as possible by proceedings in the Court of Protection (“COP”) so the underlying dispute between the local authority and family members/carers can be resolved – see further, below.

Always, difficult questions of judgment arise as to how to manage that hugely invasive process in the kindest and fairest manner.

Where there is a dispute between the local authority and family members, the local authority should not use the DOLS machinery “as a means of getting its own way”: Hillingdon LBC v Neary [2011] EWHC 1377 (COP). In all, or almost all, cases, the local authority should bring the matter before the COP, for the COP to decide where it is in the best interests of P to live, if at all possible, in advance.

If, very exceptionally, the situation is truly urgent and immediate action is required to safeguard P from serious injury, the local authority can take immediate action but should still bring the matter to the COP straight away and any authorisation should be conditional on that step being taken: Neary.

(Ultimately, when there is a serious dispute, that cannot be mediated or otherwise resolved speedily, the COP will determine where P should reside, in his or her best interests, applying the criteria in section 4 of the MCA 2005 - there is no legal presumption or starting point that it is best for P to live with his or her family: K v LBX [2012] EWCA Civ 79. I would strongly suggest, however, that Article 8 ECHR places a burden on the local authority and the COP to take reasonably practical steps to promote family life: see S (Adult Patient)(Inherent Jurisdiction: Family Life), Re [2002] EWHC 2278 (Fam) and many subsequent cases, referring to the “common sense” proposition that, all things being equal, family life is to be preferred.)

In these exceptional cases, usually, the process can be managed relatively quietly, by taking the person concerned to a care home from a day centre, or from their own home at a time when no-one is around to create opposition. In such circumstances, transporting the person to the care home will almost always be a restriction on, but not a deprivation of, their liberty, and justifiable under sections 5 and 6 of the MCA 2005, unless more than persuasion or restraint is required, or the journey is exceptionally long: see paragraphs 2.14 and 2.15 of the Deprivation of Liberty Safeguards: Code of Practice (“the Code”). If force, medication, threats or subterfuge have to be used, or the conditions of the journey are likely to be unusually onerous, it will be necessary to secure a court order authorising a DOL for transportation purposes (GJ v Foundation Trust [2009] EWHC 2972 Fam).

When the involvement of the police is required, there is section 135 of the MHA 1983 (see above) or one can apply to the COP for authorisation. Guidance on how to apply, where police assistance may be required, is at LBH v GP (2009) COP, Case No FD08P01058.

(Once a standard authorisation is in place, the authorisation itself implicitly authorises the use of force, if necessary, to return P to the care home: DCC v KH (2009) COP, Case No: 11729380).

In these exceptional, urgent cases, the managing authority of the care home will need to grant itself an urgent authorisation under Part 5 of Schedule A1 to the MCA 2005 and Chapter 6 of the Code.

The managing authority will then need to apply for a standard authorisation, under Part 4 of Schedule A1 to the MCA 2005 and Chapters 3 and 4 of the Code.

An IMCA must be appointed by the local authority, as supervisory body, where there is no-one other than a paid or professional carer to be consulted during the best interests assessment (section 39A of the MCA 2005), and in certain cases where there is already an authorisation and P only has an unpaid representative (section 39D).

If the assessments advise that there is no DOL, or that a DOL should be authorised, the supervisory body should scrutinise the assessments carefully and with an independent mind and not just “rubber stamp” them because “Where… a supervisory body grants authorisations on the basis of a perfunctory scrutiny of superficial best interests assessments, it cannot expect the authorisations to be legally valid”: Neary, at paragraphs 33, 174 to 177. In other words, there is still the possibility of a breach of Article 8 ECHR, or even Article 5, if the DOLS process is highly inadequate. In such cases, though, the supervisory body can carry out a review under Part 8, or bring the DOL to an end, or apply to the COP for an order.

The maximum period for an authorisation is 1 year and it cannot be longer than the period identified in the best interests assessment. The period starts either at the exact time on the day the authorisation is given or at a later time specified in the authorisation document: A County Council v MB [2010] EWHC 2508 (COP).

As soon as practicable after a standard authorisation has been given, the supervisory body must appoint a person to be P’s representative (Schedule A1, paragraphs 137 to 153) – to maintain contact with P, to support and represent P in matters relating to the authorisation including requesting a review and in using any complaints procedures and to apply to the COP on P’s behalf, if necessary. The powers and functions of the representative are elucidated in AB v LCC [2011] 3151 (COP).

Note that the authorisation procedures only apply to care homes and hospitals (not to supported accommodation and other places).

In cases where a local authority places P in a care home, when P or P’s family wish P to live elsewhere, there will usually be a deprivation of liberty and, moreover, one that needs to be brought before the COP: see JE v DE and Surrey CC [2006] EWHC 3459 Fam.

What about cases where P seems compliant and his family are not in dispute with the local authority, or where P is unhappy and wants to leave, but has nowhere to go? Leaving aside cases where compliance has been achieved through medication, subterfuge, force of threats (which usually would result in a DOL), in this type of case, there will not be a DOL if, overall, P is living a relatively normal life, taking into account P’s capabilities.

The 3 basic ingredients of a DOL incompatible with Article 5 ECHR are, as described in JE, as follows:

· the objective element of physical confinement for a not negligible period of time,

· the subject element of the person not validly consenting to the confinement in question,

· the confinement being imputable to the State.

However, whether or not there is a DOL, rather than a restriction of liberty, is ultimately fact-sensitive.

HL v The United Kingdom(Application no. 4508/89, 5 October 2004) is a good starting point. HL was a 56 year old autistic man, with a learning disability, who had lived with paid carers for 3 years, in their home as part of their family. He began to find it difficult to cope with his environment and group at the day centre and one day became particularly agitated, so he was sedated and taken to hospital. Fair enough. But then the hospital refused the carers permission to visit HL for over 3 months because the clinical team did not feel “confident” about visits, “to avoid [HL] thinking that he could go home with [his carers”; of course, the hospital also refused to let HL go home, although that was what his carers were pressing for. As soon as the court of appeal indicated it would allow HL’s appeal, the hospital sectioned him under the MHA 1983, but HL’s appeal did not even have to go to a hearing because all the expert evidence was that he could not be detained under the MHA 1983 – so he was released by the hospital managers.

At paragraph 89 of the judgment of the European Court of Human Rights one locates the statement of principle that is, or certainly ought to be, the one statement that everyone can agree with:

89 It is not disputed that in order to determine whether there has been a deprivation of liberty the starting-point must be the concrete situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and a restriction upon, liberty is merely one of degree or intensity.

“Turning to the concrete situation”, in paragraph 91:

… the court considers the key factor in the present case to be that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements………… More particularly, the applicant had been living with his carers for over three years……………… The correspondence between the applicant’s carers and Dr M……. reflects both the carers’ wish to have the applicant immediately released to their care and, equally, the clear intention of Dr M and the other relevant health care professionals to exercise strict control over his assessment, treatment, contacts and, notably, movement and residence…….

With respect to commentators who claim that “the key factor” in every single case is simply whether or not “complete and effective control” is exercised, that is not warranted by HL. It was “the key factor in the present case” – but that was because HL had a home he could go to and people who had been caring for him, who wanted him back. When he went back he would, presumably, have been under the “complete and effective control” of his carers – but no-one has ever suggested that that amounted to a DOL.

That requires one to ask what does “liberty” actually mean, in the case of a person with a learning disability and autism? Does it mean being allowed to be in a “state of nature”, wandering the streets and fields without accommodation and care, fending for oneself, until death? If that amounts to liberty, then maintaining a great many incapacitated adults in a care home will amount to depriving them of their liberty, since an incapacitated adult cannot validly consent to being confined and in a great many cases the care home will exercise complete control. But that sort of liberty would involve pain and suffering, and a short life, and would not be consistent with P developing as a person and being the best person that he or she could be.

To my mind, a “state of nature” is no sort of liberty for a severely disabled person and, more to the point, that is clearly not the way that the European Court of Human Rights was thinking. What was HL actually deprived of, in point of fact? The answer is, that he was deprived of living at his carers’ home with them. Ergo, that was his “liberty”. Living at home with those who care for one, who are doing the best they can to enable one to fulfil one’s potential, is liberty, for a severely disabled person such as HL.

But one must not extrapolate too much from that because one very swiftly runs up against Storck v Germany (Application no. 61603/00, 16 June 2005). In Storck, an 18-year old was basically “locked up” in a private psychiatric institution at the behest of her parents who, following “serious conflicts”, were convinced that she was psychotic. Ms Storck was kept in a locked ward under continuous supervision. When she tried to escape, they shackled her. When she did escape, the police brought her back by force. And for good measure, they pumped her full of excessive doses of dubious medication known to have adverse side effects. Needless to say, when Ms Storck was eventually seen by a proper psychiatrist, his diagnosis was that she had “at no point in time suffered from a schizophrenia-type psychosis” and that “her intemperate behaviour had resulted from conflicts with her family”. Looking at the almost gothic circumstances of Ms Storck’s incarceration, the European Court of Human Rights had no difficulty at all in deciding that “Objectively, she must therefore be considered to have been deprived of her liberty” (paragraph 72).

But in her case, exactly what was it that she was being deprived of? I think it is fair to say that, in Ms Storck’s case, there was no loving home where those caring for her wanted her back to do the best they could for her, so she was not deprived of liberty in the sense that HL was. But having said that, unlike HL, who lacked the capacity to choose where to live, Ms Storck did not lack legal capacity (paragraph 74), nor was she severely disabled either – indeed, she was not, it seems, mentally unwell at all (paragraph 22). So whilst the European Court of Human Rights was unable to point to a specific home, or alternative set of arrangements, it was not really necessary to do so. Ms Storck was deprived of the ability to exercise the capacity she did have, to choose where and with whom to live and one can just assume that, in the case of a capacitous person without any serious disability, that they will somehow be able to look after themselves so that, for them, being at liberty can mean simply being entirely physically free.

But what of the case in between HL and Storck: the case of a person who is severely disabled and lacks capacity, but who does not have a home with loving carers that they could go to?

As far as concerns cases decided in this jurisdiction, they essentially followed the course charted by HL and Storck: I think we can fast forward to the case of P and Q, P (otherwise known as MIG) and Q (otherwise known as MEG) v Surrey County Council and others [2011] EWCA Civ 190.

P and Q were sisters, 18 and 19 years of age at the relevant time and with severe learning disabilities. P was in foster care: she had her own bedroom, was devoted to her foster mother and basically had a wonderful life, given her severe disability, with further education each day, trips out and holidays but, of course, her foster mother did exercise “complete control” over P (if one wanted to put it like that). Q was in a small residential home for 4 adolescents where, again, she received the very best of care, including regular further education (at the same establishment as P) and a full social life, so that her previous challenging behaviour was stabilising. Again, complete control was exercised.

Neither P nor Q were objecting to their place or conditions of residence although, of course, neither were able to give a valid consent to any DOL – if there was a DOL. Giving the leading judgment, Wilson LJ emphasised the importance of whether the person concerned objected:

26……………. If a person objects to the confinement, the consequence will be conflict. At the very least there will be arguments and she will suffer the stress of having her objections overruled. More probably, as in the case of Miss Storck, there will be tussles and physical restraints and even perhaps her forcible return at the hands of the police. This level of conflict inherent in overruled objections seems to me to be highly relevant to the objective element. Equally, however, the absence of objections generates an absence of conflict and thus a peaceful life, which seems to me to be capable to substantial relevance in the opposite direction…………

Also important was the absence of any medication that could suppress P’s and Q’s ability to express themselves.

One then comes to the much criticised idea of “normality”. The best course here, is to simply set out Wilson LJ’s exact words:

27. I turn to consider the alleged relevance of the purpose behind the arrangements under scrutiny. Parker J said:

"I am of the view that in this case it is permissible to look at he 'reasons' why they are each living where they are … there are overwhelming welfare grounds for them not to live in their family of origin. In relation to both girls, the primary intention is to provide them each with a home … In neither of those homes are they there principally for the purpose of being 'treated and managed'. They are there to receive care."

To the extent that, as Mr Gordon complains, the judge was there attaching significance to the fact that the purpose of the arrangements for the girls was to further their best interests, I believe that she was wrong to do so. But, although therefore to a limited extent I dissociate myself from the terminology of that passage, the judge nevertheless was there alighting on a relevant feature.

28. For, by her reference to the provision for the girls of care in a home, the judge was by implication stressing the relative normality of the living arrangements under scrutiny. If the person is living with her parents or other members of his natural family in their home, she is living – in that respect – the most normal life possible. Typically – but sadly not always – there will be no deprivation of liberty in such circumstances: A v A Local Authority, cited above, at [131], per Munby J. Not much less normal for this purpose is the life of a child in the home of foster parents or of an adult, such as Mr HL, in the home of carers; such Mr Gordon is constrained to accept. But, even when the person lives in an institution rather than in a family home, there is a wide spectrum between the small children's home or nursing home, on the one hand, and a hospital designed for compulsory detentions like Bournewood; and it is in my view necessary to place each case along it.

29, Of course the enquiry into normality transcends an enquiry into the residential arrangements. Of potentially great relevance in the case of children or young adults is whether, as would be normal almost irrespective of the degree of any disability, they go out to some sort of school or college; and, in the case of other adults, whether they go out to college or to a day centre or indeed in order to pursue some form of occupation. "It would seem then that if the individual can maintain a (relatively) normal daily balance between work and home then there may not be a deprivation of liberty": "Law of the ECHR", by Harris, O'Boyle and Warbrick, 2008, 2nd ed., 124. Furthermore, as I have shown, stress was laid in the cases both of HL and of Storck on the restrictions placed on outside social contact, i.e., another major aspect of normal life; see also LLBC v TG and others [2007] EWHC 2640, [2009] 1 FLR 414, at [105(ii)], per McFarlane J.

30. "Whether a certain situation constitutes a deprivation of liberty may depend on the living conditions of the person concerned and the degree of freedom he or she enjoyed otherwise": "The European System for the Protection of Human Rights," by Macdonald, Matscher and Petzold, 1993, 289. We did not hear argument in this latter respect, no doubt because Parker J chose not to focus on the degree of confinement – as opposed to the abuse - to which P and Q had been subjected in the family home. I note and respect the negative view clearly expressed on this point by Smith LJ at [39] below but, I prefer not to venture an opinion whether it may be relevant to focus on reductions in the level of autonomy in the arrangements under scrutiny from its level in the arrangements which were in place before the protective steps were imposed.

In reaching this view, Wilson LJ took into account, in particular, that in the HL case, the argument on behalf of HL had contrasted conditions at the hospital with those at the home of the carers and that the court itself had contrasted conditions at the hospital with those at a nursing home where the resident had freedom of movement and was encouraged to have contact with the outside world.

It follows from Wilson LJ’s analysis, that P and Q were living in conditions of liberty. Since, in his judgment, neither had been deprived of their liberty, both must have been at liberty. It is hard to see what greater liberty could P and Q could have had:

· they could (hypothetically) have had more outings and a greater social life but – even if that had been consistent with their welfare – there is a difference between “liberty” and “more liberty” and it is difficult to argue that having more outings than one reasonably needs to live a normal life can be described as creating a form of liberty that one did not have before,

· another alternative, would be for the state to do nothing, but let P and Q live in a “state of nature”, but that would not last very long. Either P and Q would die, quite rapidly, or a private individual would take pity on them and look after them but then, again, the only way of doing so would involve exercise complete and effective control,

· another alternative, that arose on the particular facts of P and Q, would have been to send P and Q back to live with their abusive mother. But that would have been to subject them to inhuman and degrading treatment and can be ruled out. In any event, it appears that the mother was not seeking the return on P and Q, only contact.

In other words, the degree of liberty that P enjoyed with her foster carer, and the degree of liberty that Q enjoyed at the small residential home, was the greatest degree of liberty that either could have, given their disability. It could be said that their liberty was a simulacrum of liberty, a construct and not the real thing. It is true that P and Q’s liberty had to be created for them, by the state discharging its positive obligations under Articles 5 and 8 ECHR, given that sadly P and Q’s parents had been unable to fulfil this role. But the fact is that, as far as anyone could ascertain, everything that P and Q wanted to do, or, at least, enjoyed doing, they were enabled to do, since they would have been unable to do it by themselves.

Of course, persons in the situation of P and Q should have their needs regularly and carefully monitored and there should be some external control, by relatives, or an independent person or body, to ensure that all remains well with their care and that they do not ever become deprived of their liberty. But that is a question of care management, it seems to me, rather than one of liberty.

The case of P & Q was followed by that of Cheshire West and Chester Council and Central v P [2011] EWCA Civ, 1257, in which Munby LJ surveyed the law on DOL, in similar terms to P &Q, concluding that where the evidence shows that P’s living arrangements are not significantly different from the kind of life that anyone with their disability could normally expect, wherever and in whatever setting they were living, the provision of their care and treatment will not, in itself, amount to a DOL, even if there were significant restrictions (all on the assumption, of course, that this was not the type of case where there was a dispute between the carers/family/P and the local authority).

That was pressed even further – and to my mind a little too far - in C v Blackburn & Darwen BC [2011] EWHC 3321 (COP), where it was a held that a person who was subject to 1:1 supervision inside and outside the care home, and who was resistant and who wanted to leave the care home, was not subject to a DOL, because there was nowhere else he could go. The Judge referred to Cheshire West and said “one feature mentioned in that decision is the difference it makes if a person has somewhere else to go and wants to live there. In the present case Mr C undoubtedly wants to live somewhere else, but this is not realistically possible due to the extent of his difficulties. I distinguish his situation from those where a person has been removed from a home that is still realistically available”.

As you may know, the Supreme Court will hear the appeals in P & Q, and Cheshire West, in October 2013.

Some recent cases

J Council v GU (by his litigation friend, the Official Solicitor)(1), J Partnership NHS Foundation Trust (2), Care Quality Commission (3) and X Limited (4) [2012] EWHC 3531 (COP), Mostyn J: the court approved an agreed order containing detailed policies for regulating the highly restrictive regime imposed on a person lacking mental capacity, George, who was deprived of his liberty in a care home under a standard authorisation. The regime included strip-searching and monitoring of his correspondence and of his telephone conversations, which, if implemented in a high security psychiatric hospital, would be subject to detailed procedures and safeguards in legislation. There were no equivalent detailed procedures and safeguards stipulated anywhere for persons detained under the Mental Capacity Act 2005. Without seeking any finding as to past non-compliance, the Official Solicitor raised a doubt as to whether the arrangements for George were compliant with Article 8. The agreed order would put the matter beyond doubt. It contained policies regulating the circumstances in which he could be searched personally or have his room searched, or have his telephone calls or correspondence monitored, with arrangements for review and monitoring by the NHS Trust and CQC. Where there was going to be a long-term restrictive regime accompanied by invasive monitoring of this type, policies of this kind were likely to be necessary to avoid doubts as to Article 8 compliance. This would not be necessary if Parliament, the Executive or the CQC were to make rules or guidance to cover the situation. Also, clarification was given as to correct practice for stating the names of parties on court documents in Court of Protection proceedings. The proceedings are in private and judgments which are to be published should be anonymised. However it did not follow that all court documents should also be anonymised. The practice of doing so was confusing and dehumanizing . The parties’ identities would be restored on the court order. Click here for the judgment.

DL v A Local Authority & others [2012] EWCA Civ 253 CA (Maurice Kay LJ, McFarlane LJ and Davis LJ): Mr and Mrs L were the elderly parents of DL, who was in his 50s. Mrs L was physically disabled. The Local Authority was concerned about DL's alleged conduct towards his parents, said to be aggressive, controlling and on occasions involving physical violence. An application to the Court of Protection was not available because none of the individuals lacked capacity. The Local Authority sought an order under the High Court's inherent jurisdiction for an injunction restraining DL from certain behaviour towards his parents. The issue was whether the High Court had that inherent jurisdiction. DL argued that the Mental Capacity Act had established a comprehensive scheme and had displaced the inherent jurisdiction. At first-instance Theis J had rejected that submission and held that the inherent jurisdiction to protect adults had survived the passing of the MCA. The Court of Appeal upheld her judgement and dismissed DL's appeal. The MCA only related to adults who lack capacity. The inherent jurisdiction is a safety net aimed in part at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by reason other than mental incapacity, because he or she is under constraint, subject to coercion or undue influence or for some other reason deprived of the ability to make a free choice or express real and genuine consent. Click here for the judgment.

A London Local Authority v JH (by her litigation friend the Official Solicitor) and MH [2011] EWHC 2420 (COP) (DJ Eldergill): the local authority had applied for declarations that JH lacked the capacity to decide where to live on discharge from hospital and that it was in her best interests to be discharged to, and live in, a nursing home. JH was a woman aged 75 years old who had significant physical health problems and had suffered two strokes. The second strike had left her bed-bound and fully dependent on carers. MH was her 60 year old husband who had cared for her until her second stroke. DJ Eldergill made an interim declaration that JH did not have capacity. He considered whether it was in JH’s best interests to be discharged to a nursing home rather than to her home, to be cared for by her husband with a care package from the local authority. There had been a dispute between MH and the local authority as to the amount of care provided under the package. The local authority’s position was that an interim move to a nursing home would be in JH’s best interests and that if she returned home there was a likelihood that her husband would not co-operate, putting JH’s health and welfare at risk. The Judge found that JH’s views were that she wished to return home to live with her husband, that she was committed to her marriage and that discharge to a care home would be a deprivation of her liberty. He decided that residing in a nursing home was not in her best interests at this stage and that it would not be in her best interests to deprive her of her liberty to effect that end. He noted that residence in a nursing home on an interim basis contains a risk of institutionalisation and that relatively few people return home after being placed in a nursing home. Pending the final hearing, it was in JH’s best interests that she should be returned home and receive the care package provided by the local authority. Click here for the transcript.

Manchester City Council v G, E (by his litigation friend the Official Solicitor) and F [2011] EWCA Civ 930 (Mummery LJ, Hooper LJ, McFarlane J): E was a 20-year old man who had tuberous sclerosis and serious learning difficulties. He lacked capacity. He had been in the care of F between 1995 and 2009. G was E’s older sister. In April 2009 the local authority had removed E from F’s care and placed him at a residential establishment. It subsequently informed F that E would not be returning to her care. G filed an application in the Court of Protection. Baker J held that the local authority’s conduct had wrongfully deprived E of his liberty, had infringed his rights under Article 5 by placing him at the residential establishment without seeking authorisation, and had infringed his rights under Article 8 by removing him from F’s care without proper authorisation and by failing to consider the effect on E’s family life or to involve F in decision-making. Baker J described the council’s failings as “blatant errors, lamentable, deplorable, grave and serious”. He departed from the general rule that there should be no order as to costs in the Court of Protection and ordered that the local authority should pay the costs of G, F and E up to and including the first day of the hearing on an indemnity basis and pay one-third of their costs thereafter on a standard basis. The Court of Appeal dismissed the local authority’s appeal. The Judge had been right not to treat this as a typical case and he was entitled to come to his conclusions, including the order that costs should be paid on an indemnity basis. Transcript not yet available.

KY v DD [2011] EWHC 1277 (Fam) (Theis J): The Court gave guidance on urgent without notice applications which would also apply to the Court of Protection. The guidance given was endorsed by the president of the family division. The Court gave the following guidance as to the principles that apply when orders are sought without notice, and in particular of the need for written evidence justifying the application to be placed before the court at the time of the hearing or, exceptionally, immediately after the hearing. It is also a reminder that without notice applications should only be made in cases of genuine urgency. Click here for transcript.

A Local Authority v DL, RL and ML [2010] EWHC 2675 (Fam) (Sir Nicholas Wall): the Court held (on an ex parte application by the local authority) that it had inherent jurisdiction to grant a “non-molestation injunction”, protecting elderly and vulnerable parents from their son, who lived with them, even though the parents did not lack capacity and could in theory themselves have instructed solicitors to take proceedings for their protection. Click here for the transcript.

A County Council v MB, JB, A Residential Home [2010] EWHC 2508 (COP) (Mr Justice Charles): the Court provided detailed guidance about the proper implementation of DOLS and, in particular, what should be done when the urgent/standard authorisation procedure breaks down, but still needs to be DOL:

· In the case of an "existing detention" there can only be one urgent authorisation and therefore after the end of the first urgent authorisation it can only be authorised by either (a) a standard authorisation, or (b) a court order.

  • All involved should be very aware of the relevant periods of an existing authorisation and time the steps to be taken to continue it, or address problems as to the continuation of a deprivation of liberty, before it expires.
  • The "period of grace" or extension to the end of the existing standard authorisation (see paragraph 62(3)) is the period provided by DOLS to take appropriate steps if the supervisory body is precluded from giving a standard authorisation if all of the assessments are not positive. It is therefore the period provided to the supervisory body and the managing authority to take the appropriate steps to address a difference of opinion with an assessment.
  • Assessors should have regard to the alternatives that are practically available and in the case of the best interests assessor their ability to set the maximum length of any standard authorisation (see paragraph 51(2)). This is relevant to the continuation of a standard authorisation, for a short time, whilst changes or assessments are considered or carried out.
  • The court is the forum identified by DOLS and the MCA to resolve (i) a breakdown of the authorisation of a deprivation of liberty by the authorisation process set by Schedule A, and (ii) whether P can lawfully be deprived of his liberty if an authorisation (or a further authorisation) cannot be granted or is disputed.
  • Applications can be made to the court under s. 21A in respect of authorisations that have been granted and the section specifies the limited extent of the relief that can be given thereunder.
  • It is unlikely that s. 21A will be applicable where the problem is that an authorisation or a further authorisation cannot be given. But then, and in other circumstances, an order that authorises a deprivation of liberty can be sought under ss. 4A, 16, 47 and 48 from the court.
  • If they are urgent, such applications to the court can be brought before the High Court Judge in the Family Division designated to hear urgent applications in and out of court hours.
  • Supervisory bodies and managing authorities should take steps (i) to bring the statutory provisions relating to applications to the court to the notice of their decision makers, and (ii) to ensure that they are aware that pending a court decision they can either:

i) rely on s. 4B, and that to do so they should expressly address the test set out therein and record their reasoning as to why they believe it is satisfied, or

ii) seek an interim order from the court to authorise a continuation of an existing detention.

  • An application to the court can be made and dealt with as a matter of urgency and supervisory bodies and managing authorities should take steps to ensure that their decision makers know, or have easy access to the current methods to contact (i) the Court of Protection and the DoL team at the court (as to which the telephone number in the Practice Direction supplementing Part 10A of the COP Rules is out of date), and (ii) the Family Division of the High Court to make an urgent application to the Applications judge during court hours and the Duty judge out of court hours.

In the matter of A v a local authority [2010] EWHC 978 Fam (Munby J): the court gave guidance on the scope of a local authority's positive obligations when it knew or ought to have known that a vulnerable child or adult was subject to restrictions on their liberty by a private individual, albeit for the purpose of their welfare and best interests, that arguably gave rise to a deprivation of liberty, contrary to Article 5 of the European Convention on Human Rights 1950: see the Stephen Knafler QC’s practice note on this case for further analysis. Click here for the transcript.

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