briefing Case law to clarify the Deprivation of Liberty Safeguards

Transcription

1 briefing Case law t clarify the Deprivatin f Liberty Safeguards Intrductin...2 Case law in detail...4 DCC v KH and thers Issue befre the curt...4 Outcme...4 W Primary Care Trust v TB Issue befre the curt...5 Outcme...5 A Cunty Cuncil v MB Issue befre the curt...6 Outcme...6 MIG and MEG Issue befre the curt (at first instance)...7 Outcme...7 Curt f Appeal decisin...7 Cnclusin...8 Re A and Re C Issue befre the curt...8 Outcme...8 BB Issue befre the curt...9 Outcme...9 LB Hillingdn v Steven Neary Issue befre the curt Outcme Cheshire West and Chester Cuncil v P Issue befre the curt Outcme DN v Nrthumberland Tyne & Wear NHS Fundatin Trust Issue befre the curt

2 Outcme RK v (1) BCC (2) YB (3) AK Issue befre the curt Outcme AB v LCC Issue befre the curt Outcme C v Blackburn with Darwen Brugh Cuncil Issues befre the curt Outcme Austin v United Kingdm (2012) Key Facts Issues befre the curt Outcme ZH v Cmmissiner f the Plice fr the Metrplis (2012) Key Facts Issues befre the curt Outcme CC v KK and STCC Issue befre the curt Outcme Cntacts...18 Legislatin...18 Case law...18 Useful links...18 Intrductin The Mental Capacity Act Deprivatin f Liberty Safeguards (DOLS) has been in frce since 1 April Hwever, there is still a cnsiderable degree f uncertainty in relatin t their applicatin. Althugh DOLS frm part f the Mental Capacity Act 2005 (MCA 2005), they were intrduced under the Mental Health Act There is a detailed cde f practice in relatin t their applicatin. Hwever, there have been a number f circumstances where managing authrities and supervisry bdies have nt felt that the psitin was sufficiently clear, and they have turned t the curts fr interpretatin f the prvisins f the DOLS legislatin and accmpanying guidance. This dcument cnsiders the relevant facts, issues and utcmes f the fllwing cases in rder t set ut the way in which recent case law has clarified the current DOLS legislatin and guidance. 1 DCC v KH and thers - This case cnsidered the scpe f a standard authrisatin and the issue f restraint. The Curt f Prtectin decided that permissin frm the curt is nt required when returning a patient t their place f residence where a standard authrisatin is already in existence, even if the use f restraint is necessary. 2

3 2 W Primary Care Trust v TB - This case cnsidered whether r nt a patient wh lacked capacity met the eligibility criteria in rder t be deprived f her liberty in accrdance with the DOLS criteria. It was fund that TB was nt a mental health patient, as defined under Schedule 1A MCA 2005, because the authrisatin wuld relate t a care hme, which was nt a hspital within the meaning f S145(1) f the Mental Health Act 1983 (MHA 1983). As such, TB wuld be eligible t be deprived f her liberty in accrdance with DOLS if it were in her best interests. 3 A Cunty Cuncil v MB This case prvides guidance in relatin t the use f urgent authrisatins and details best practice in relatin t dcumentatin fr authrisatins. 4 MIG and MEG The initial judgment f Judge Parker that neither girl was deprived f her liberty was cntrversial because her reasning included references t the intentin, purpse, mtivatin and reasns fr the care arrangements. The Curt f Appeal agreed that neither was being deprived f their liberty, but tk a significantly different apprach t the reasns fr this than Judge Parker. 5 Re A and Re C This case cnsidered whether the circumstances f dmestic care fr A and C by their families, in their wn hmes, amunted t a deprivatin f liberty and what the rle f the state is in such cases. 6 BB This case cnsiders bth the circumstances that amunt t a deprivatin f liberty and the peratin f Schedule 1A in terms f eligibility t fall within the DOLS regime. 7 Cheshire West and Chester Cuncil v P This case cnsiders the factrs indicating whether r nt a deprivatin f liberty is ccurring. The curt cncluded that the relevant cmparatr is the standard r nrmality fr smene with the relevant cnditin. 8 LB Hillingdn v Stephen Neary This case prvides useful guidance in relatin t the scpe f the DOLS regime and the referral f disputes t the Curt f Prtectin. 9 DN v Nrthumberland Tyne & Wear NHS Fundatin Trust This imprtant case clarifies the interplay between the MHA 1983 and the DOLS regime. 10 RK This case was cncerning the prvisin f accmmdatin t a child under sectin 20 Children Act 1989 and whether that was capable f giving rise t a deprivatin f liberty. While parents can impse r authrise thers t impse restrictins n their child, thse restrictins must nt amunt t a deprivatin f liberty unless it is authrised in the apprpriate way. In this particular case the restrictins impsed did nt amunt t a DOL. 11 AB v LCC In this case the Curt f Prtectin ffered guidance in relatin t the appintment f a Relevant Persn s Representative as a Litigatin Friend in relatin t a deprivatin f liberty challenge. 12 C v Blackburn with Darwen Brugh Cuncil This Curt f Prtectin case cnfirms the psitin regarding the interactin between guardianship under the MHA 1983 and the jurisdictin f the Curt f Prtectin. It als fllws the Cheshire case in terms f determining the existence f a DOL. 13 Austin v United Kingdm (2012) This decisin frm the Grand Chamber f the Eurpean Curt f Human Rights (ECHR) des nt relate t the care f individuals wh lack capacity, hwever it makes sme interesting pints in terms f deprivatin and restrictin f liberty which can be applied in Curt f Prtectin cases. 3

4 14 ZH v Cmmissiner f the Plice fr the Metrplis (2012) This case cnsiders the existence f a deprivatin f liberty when the plice intervened t restrain an autistic man and als prvides helpful cnsideratin n the scpe f sectin 5 and 6 f the MCA 2005 in relatin t restraint. 15 CC v KK and STCC (2012) The first detailed pst-cheshire West cnsideratin f the meaning f deprivatin f liberty. This case als cnsiders the apprach t be taken when determining capacity and ffers sme helpful guidance in that respect. Case law in detail DCC v KH and thers KH lacked capacity t decide where he shuld live. Previus rders declared that it was lawful and in KH s best interests fr him t reside at his current placement; and a standard authrisatin had already been given in this respect KH was permitted t have supprted cntact with his mther, hwever he was unhappy abut returning t his placement fllwing this cntact and expressed his intentins nt t return Issue befre the curt DCC, the lcal authrity, sught a declaratin that it wuld be lawful t use reasnable frce fr the shrtest pssible duratin in rder fr KH t be returned t his placement fllwing cntact with his mther. It was anticipated that it might be necessary t restrain KH t the extent that it wuld deprive him f his liberty DCC felt that it was nt clear whether the current standard authrisatin extended t the use f restraint in rder t enfrce KH s return t the placement, r whether a further declaratin wuld be needed Paragraphs 2.14 and 2.15 f the DOLS Cde f Practice were cnsidered: 2.14: Transprting a persn frm his r her hme, r anther lcatin, t a hspital r care hme will nt usually amunt t a deprivatin f that persn s liberty 2.15: There are very few exceptinal circumstances where taking a persn t a hspital r care hme amunts t a deprivatin f liberty, fr example where it is necessary t d mre than persuade r restrain a persn fr the purpse f transprtatin r where the jurney is exceptinally lng. In such circumstances, it may be necessary t seek an rder frm the Curt f Prtectin t make sure the jurney is taken n a lawful basis Outcme While the judge agreed that it wuld be apprpriate fr DCC t use prprtinate restraint in KH s best interests if KH resisted his return t the placement; the judge dismissed DCC s applicatin fr a declaratin in respect f this The declaratin was dismissed n the grunds that the applicatin was unnecessary, as the standard authrisatin already in place ffered sufficient prtectin fr DCC 4

5 The judge als stated that sectins 5 and 6 MCA 2005 already make adequate prvisin fr the use f restraint where it is in the best interests f an individual Paragraphs 2.14 and 2.15 f the DOLS Cde f Practice are intended t cver the circumstances where a persn needs t be transprted t a hspital r care hme in advance f a standard authrisatin being made W Primary Care Trust v TB TB lacked capacity t make decisins as t where she shuld reside and what treatment she shuld receive. She suffered frm chrnic delusinal disrder and wished t be placed in an NHS hspital fr further tests. It was disputed as t whether this wuld be in her best interests The PCT applied fr a standard authrisatin in rder fr TB t receive residential treatment in a care hme in her best interests. Hwever, the eligibility assessr questined whether TB shuld fall within the scpe f the MHA 1983 rather than MCA 2005 Issue befre the curt The PCT (and the fficial slicitr representing TB) applied fr a declaratin that TB was eligible t be deprived f her liberty If TB was nt eligible t be deprived f her liberty, then the nly lawful way t detain her wuld be under the prvisins f the MHA 1983 Outcme The judge fund that TB culd nly be a mental health patient if she was accmmdated in hspital fr the purpse f receiving treatment fr a mental disrder The residential placement cncerned was a care hme registered under the Care Standards Act 2000, rather than a hspital. Therefre, TB wuld nt be cnsidered t be a mental health patient As a result TB s detentin fell utside f the ineligibility categries set ut in Paragraph 2, Schedule 1A MCA 2005 meaning that an rder culd be made r standard authrisatin given, in accrdance with DOLS prvisins The lcatin f a persn s care is clearly relevant t their eligibility under the MCA 2005 A Cunty Cuncil v MB MB suffered frm Alzheimer s and was resident in a nursing hme fllwing an incident where her husband had admitted t slapping and restraining her An urgent authrisatin was given, fllwed by a standard authrisatin fr a perid f 28 days A further standard authrisatin was requested; hwever the Best Interests Assessr (BIA) determined that, althugh MB was deprived f her liberty, it was nt in her best interests t reside at the nursing hme. 5

6 She had lst a significant amunt f weight and appeared distressed. The BIA did nt think it was safe fr MB t return hme withut 24 hur care being put in place, but MB s husband was nt willing t accept this A secnd urgent authrisatin was issued, which was expressed t last until the Curt f Prtectin made its determinatin Issue befre the curt The managing authrity applied t the Curt f Prtectin fr a decisin in relatin t the residency f MB The judgment sets ut guidance n hw t make urgent applicatins t the curt, and hw the paperwrk fr authrisatins shuld be cmpleted as a matter f best practice Outcme There culd nt be a secnd urgent authrisatin granted in respect f the same deprivatin f liberty. The nly way the deprivatin f liberty culd have been lawful wuld have been either a further standard authrisatin, r a curt rder The curt cannt prvide retrspective authrisatin, and culd nly make the deprivatin f liberty lawful frm that pint nwards Anything dne after an authrisatin ends must be dne under sectin 5 MCA 2005 in the persn s best interests and the ratinale fr each actin shuld be clearly recrded in the medical ntes The curt will need t knw what the decisin maker believed and what sectins f the MCA 2005 they cnsidered in reaching their cnclusin Sectin 4B MCA 2005 allws a deprivatin f liberty while an applicatin is made t curt; hwever there are three cnditins t be satisfied, including that the deprivatin f liberty is necessary fr life sustaining treatment r a vital act. A vital act is any act that the persn ding it reasnably believes t be necessary t prevent a serius deteriratin in the persn's cnditin In making their recmmendatins, assessrs shuld have regard t the alternatives that are practically available In terms f best practice, ther pints t nte include the fllwing: the time that the authrity is granted shuld be nted n the papers the day n which the authrity is granted cunts as day ne fr the calculatin f time perids, and interim rders can be btained frm the curt ut-f-hurs In this case, MB had been deprived f her liberty frm the pint where the standard authrisatin expired until the making f a curt rder authrising a cntinued deprivatin f liberty. Hwever, n damages were sught as a declaratin was thught t be sufficient 6

7 MIG and MEG Prceedings were brught by the Cunty Cuncil with scial wrk respnsibility fr tw girls, MIG (aged 18) and MEG (aged 17), bth with mderate t severe learning disabilities MIG was living with her fster family and MEG was placed in a small residential care hme. Bth were under cntinuus supervisin and cntrl fr their wn care; bth lacked capacity t make decisins abut their care and residence Issue befre the curt (at first instance) The case was cncerned with issues f cntact and care, but the fficial slicitr als raised the questin f whether MIG and MEG were deprived f their liberty Outcme The curt has pwer under sectin 2(5) MCA 2005 t make rders depriving year-lds f their liberty in their best interests It is pssible fr a deprivatin f liberty t ccur in a dmestic setting, such as a family hme The fster carer, althugh self-emplyed, was an agent f the lcal authrity; therefre any deprivatin f liberty wuld be imputable t the state. Hwever, there was n deprivatin f liberty simply by virtue f placing smene in fster care r a care hme wh lacks capacity t cnsent In cnsidering whether there is a deprivatin, it is relevant t cnsider the alternative ie, the life that the persn wuld be leading if nt in that placement The judge fund that neither MIG nr MEG was deprived f their liberty fr varius reasns, including the fllwing: Each lacks freedm and autnmy dictated by their wn disability, rather than because it is impsed n them by their carers. Each is under the cntinuus supervisin and cntrl f her carers s as t meet her care needs, rather than t restrain her in any way N ther less restrictive r invasive arrangements culd be devised that wuld meet their care needs A lack f capacity t cnsent r bject t living arrangements cannt itself create a deprivatin f liberty Judge Parker s reasning included references t the intentin, purpse, mtivatin and reasns fr the care arrangements. Parker J herself, accepted that gd intentins are nt relevant t the issue f whether r nt smene is bjectively being deprived f liberty, but then went n (in the same paragraph) t say that it was permissible in this case t lk at the reasns fr MIG and MEG living where they were Curt f Appeal decisin The leading judgment is frm Lrd Justice Wilsn, wh reviewed the factrs that are relevant (r nt) when cnsidering whether there is an bjective deprivatin f liberty, as fllws: 7

8 A persn s happiness is nt relevant t whether he is being deprived f his liberty Hwever, it is relevant t cnsider if a persn bjects t the cnfinement because this is likely t lead t cnflict and cnfrntatin Use f medicatin is relevant, especially if it may suppress a persn s ability t express his wishes and all the mre s if it is frced n the persn It was inapprpriate t take int accunt the fact that the purpse f the care package was t further the persn's best interests On the ther hand, the relative nrmality f the arrangements was very imprtant. If the persn is living with her parents, r ther members f their natural family in their hme, they are living, in that respect, the mst nrmal life pssible. Typically, but sadly nt always, there will be n deprivatin f liberty in such circumstances Cnclusin The main develpment in this case is the mve frm cnsideratin f purpse and reasns (Parker J) t an emphasis n issue f the relative nrmality f the placement (Wilsn LJ). This helps t avid sme f the prblems persuading peple that there can be a deprivatin f liberty despite their gd intentins, and that the DOLS r Curt f Prtectin prcess shuld be invked where apprpriate. The Curt f Appeal has ffered sme useful guidance n what is nt relevant (the purpse/reasns fr the deprivatin, whether P is happy there, and whether P s situatin is an imprvement), but we still d nt have a full understanding f bjective deprivatin f liberty. Re A and Re C A (an 8-year-ld girl) and C (a 20-year-ld wman) were bth at particular risk at night due t a genetic cnditin (Smith Magenis syndrme), assciated with learning disability, disturbed sleep patterns and serius self harming behaviur Bth lived in the family hme and, as a last resrt, each family had taken t lcking their daughter in the bedrm vernight. It was agreed that there was n real alternative Issue befre the curt The curt had t cnsider whether this was a deprivatin f liberty, despite being nly an act f private individuals rather than the state, and what rle the state (thrugh the lcal authrity) has in such cases. Outcme Despite being lcked in a rm fr hurs vernight, it was nt fund that A r C were being deprived f their liberty The lcal authrity s mere knwledge f what was ging n in the family hme was nt enugh t make the state respnsible fr this regime. The rle f the lcal authrity is t assess needs and t prvide supprt. They shuld enlist the help f the curts if mre interventin is required 8

9 Hwever, there is a psitive bligatin n the state (thrugh the lcal authrity) t take psitive steps t prtect peple frm such interference by ther private individuals Where the lcal authrity thinks that a deprivatin f liberty might be ccurring in a private husehld, it has bligatins t: investigate and mnitr whether there is a deprivatin f liberty take steps t intervene t bring any deprivatin t an end by prviding additinal supprt and resurces if required, and if it is nt reslved, bring the matter t the Curt f Prtectin BB BB was a 31-year-ld deaf Bangladeshi wman diagnsed with Schizaffective Disrder, and prbable learning difficulties She had been remved frm the care f her parents by the lcal authrity, against the wishes f her family, fllwing reprts that she was being assaulted at hme It was cmmn grund that she lacked the capacity t decide where she shuld live In hspital she was sedated and her capacity t have free access t her family was limited. Her mvements were under the strict cntrl and supervisin f hspital staff When a standard authrisatin was requested, BB was fund t be ineligible because a psychiatrist expressed the pinin that she culd be treated under the MHA Hwever, the decisin was made nt t sectin her Issue befre the curt The curt was required t decide, as a preliminary issue whether, t make a declaratin that BB was being deprived f her liberty. The first questin was whether BB was ineligible t be deprived f her liberty If she was eligible, then it must be cnsidered whether her circumstances amunted t a deprivatin f liberty Outcme It was nt established that BB met the criteria under sectin 2 r sectin 3 f the MHA She was nt, therefre, ineligible t be deprived f her liberty within the meaning f the eligibility requirement set ut in Schedule 1A MCA 2005, under Case E. (This is where a persn is within the scpe f the MHA 1983, but nt subject t any f the mental health regimes) The decisin maker shuld apprach Schedule 1A MCA 2005 by asking himself whether the persn satisfies sectin 2 r sectin 3 MHA 1983 and whether, if an applicatin was made, they wuld detain the persn 9

10 When cnsidering the factrs relating t deprivatin f liberty, these shuld be cnsidered cumulatively, rather than in islatin Taking all f the factrs int accunt, the cnclusin was that BB was being deprived f her liberty in hspital. Hwever, the placement was in her best interests. The curt declared that it was lawful fr her t reside there in the interim, and that it was lawful fr the trust t take all reasnable steps t prevent her frm leaving LB Hillingdn v Steven Neary SN, a 21-year-ld with autism and a severe learning disability, was cared fr by his father. The Lndn Brugh f Hillingdn (the lcal authrity) arranged care services t supprt SN at hme and als prvided respite care In January 2010, SN was placed in a supprt unit fr a shrt perid f respite care at the request f his father; hwever the lcal authrity later refused t return SN t the care f his father and DOLS authrisatins were put in place between April and December This was cnsistently challenged by SN s father wh was infrmed that he culd take the matter t the Curt f Prtectin if he wanted t dispute the DOLS authrisatins granted Eventually, in late Octber 2010 the lcal authrity applied t the Curt f Prtectin Issue befre the curt There were bth legal and practical issues befre the curt: Legally, the curt was required t cnsider whether, despite the DOLS authrisatins, SN s residence at the supprt unit amunted t an unlawful deprivatin f liberty Practically, the curt lked at the purpse f DOLS, decisin making and the rle f the supervisry bdy. Guidance was prvided in respect f the scpe f the DOLS regime and the referral f disputes t the Curt f Prtectin Outcme The curt cncluded that the lcal authrity had breached SN s right t respect fr family life (Article 8 ECHR), and had unlawfully deprived him f his liberty in cntraventin f Article 5(1) ECHR It was als declared that the lcal authrity deprived SN f his entitlement t a speedy decisin by the curt n the lawfulness f his detentin (cntrary t Article 5(4) ECHR) by: Failing t refer the matter t the Curt f Prtectin sner Failing t prmptly appint an Independent Mental Capacity Advcate (IMCA), and Failing t cnduct an effective review f the Best Interests Assessment The Best Interests Assessment in this case was fund t be inadequate and had nt addressed pssible alternative care ptins. The curt criticised the supervisry bdy fr authrising a DOL withut adequately scrutinising and challenging the defective assessment. The curt stated that it is the rle f the supervisry 10

11 bdy t scrutinise assessments, nt rubber stamp them because withut a thrugh and reasned BIA, the scheme will nt prvide adequate prtectin fr the vulnerable it was designed t prtect The judge emphasised that the DOLS regime is nt t be used by a lcal authrity as a means f getting its wn way n the questin f whether it is in the persn s best interests t be in the place at all far frm being a safeguard, the way in which the deprivatin f liberty prcess was used masked the real deprivatin f liberty, which was the refusal t allw [SN] t g hme The decisin emphasises that the nus is n the lcal authrity (r PCT) t bring deprivatin f liberty cases t curt in a timely fashin whenever there is any dubt regarding the deprivatin f liberty, best interests r prprtinality, cncluding that there is an bligatin n the State (under Article 5(4) ECHR) t ensure that a persn deprived f liberty is nt nly entitled but enabled t have the lawfulness f his detentin reviewed speedily by a curt The DOLS regime shuld nt be used t inapprpriately enfrce a care planning decisin r as a mechanism fr reslving wider disputes, such as disagreements as whether a persn shuld live at hme r in a residential setting Cheshire West and Chester Cuncil v P P, a 39-year-ld man, was brn with Cerebral Palsy and Dwn s Syndrme and lacked capacity t make decisins abut his care and accmmdatin. In Nvember 2009 P mved t Z Huse, a residential care hme. He had a histry f challenging and uncperative behaviur P was incntinent and had develped a habit f tearing pieces ff his cntinence pad and ingesting them. Staff were required t intervene t remve the material frm his muth. T prevent him frm accessing the pad his carers used an all-in-ne bdy suit zipped at the back P was unable t leave Z Huse withut being accmpanied by a member f staff and this was facilitated regularly. It was nt disputed that this was an apprpriate placement In April 2011, a judge decided that P was deprived f his liberty in his lcal authrity placement as staff had cmplete and effective cntrl ver his life; hwever it was lawful fr him t cntinue t reside at Z Huse Issue befre the curt The lcal authrity appealed the decisin, t the Curt f Appeal, in relatin t the deprivatin f liberty in this case, pinting t numerus factrs which they claimed indicated that there was n deprivatin f liberty Outcme Lrd Justice Munby draws tgether the previus relevant case law It was decided that P s care plan at Z Huse did nt amunt t a deprivatin f liberty 11

12 The curt explained that it is legitimate t regard the bjective reasn why smene was placed and treated as they were, and t the bjective purpse f the treatment. The judge accepted that a gd intentin culd nt render inncuus; smething that wuld therwise be a deprivatin f liberty This issue in this case invlved finding the relevant cmparatr t assess the relative nrmality f the situatin. Sme peple are inherently restricted by their circumstances, and the curt must cnsider the standard f nrmality fr smene with the relevant cnditin and nt the nrmality f the life f an ablebdied persn The curt cncluded that, P is living a life which is as nrmal as it can be fr smene in his situatin. The care that P was receiving was required as a result f his cnditin DN v Nrthumberland Tyne & Wear NHS Fundatin Trust DN was detained under sectin 3 MHA 1983 due t Alchl Dependency Syndrme, which affected his memry and cgnitive functining. Thse difficulties left him withut capacity t decide where t live r whether t buy alchl He made an applicatin t the tribunal fr discharge frm detentin under the MHA 1983 n the basis that, if arrangements were made under DOLS that he was accmpanied at all times (t prevent him frm buying alchl), he wuld nt be detainable under the MHA 1983 Issue befre the curt The Upper Tribunal cnsidered what is meant by being ineligible fr DOLS (under Schedule A1 MCA 2005) n accunt f being within the scpe f the MHA Outcme The judge cncluded that DN was utside the scpe f the MHA 1983, and therefre eligible fr an authrisatin under the DOLS regime By taking int accunt the pssibility f a less restrictive alternative under DOLS, it culd nt be said that detentin under the MHA 1983 was necessary In additin, the prpsed treatment (supervisin and distractin frm buying alchl) was nt specialist mental health treatment fr the purpses f s145 MHA 1983 The Department f Health did nt wish t becme a party but wrte t the tribunal stating, Decisinmakers under the MHA must, inevitably, cnsider what ther ptins are available when deciding whether it is right fr cmpulsry measures under the MHA 1983 t be used, r cntinue t be used. The use f the MCA (with r withut an authrisatin under MCA DOLS) may be ne f thse ptins They als stated that it was specifically in the cntext f the interpretatin f Case E [schedule 1A eligibility requirements] that Mr Justice Charles in J talked abut the MHA 1983 having primacy. Outside that cntext the department des nt understand him t have been making a mre general statement the department des nt think it wuld actually be pssible t say, in general, which has primacy ver the ther 12

13 The case clarifies that a patient wh is detained in hspital under the MHA 1983 cannt be excluded frm DOLS n the basis that they are already within the scpe f the MHA If DOLS arrangements wuld be sufficient t meet the needs f the patient, the necessity test fr detentin under the MHA 1983 is nt met; therefre the patient is nt excluded frm DOLS As the respnsible authrity had nt participated in the appeal prceedings, the judge rdered a re-hearing by the First-tier Tribunal, taking the abve int accunt RK v (1) BCC (2) YB (3) AK RK, a minr, had been accmmdated in a care hme pursuant t an agreement between her parents and the lcal authrity She appealed against the decisin at first instance that accmmdatin f a child pursuant t sectin 20 Children Act 1989 culd nt give rise t a deprivatin f liberty, and in any event the restrictins impsed did nt amunt t a deprivatin Issue befre the curt The curt was required t cnsider whether an adult, in the exercise f parental respnsibility, culd impse r authrise thers t impse restrictins n the liberty f their child; and whether thse restrictins culd amunt t a deprivatin f liberty Outcme The Curt f Appeal decided that an adult in the exercise f parental respnsibility may impse, r authrise thers t impse, restrictins upn the liberty f a child. Hwever, such restrictins may nt in their ttality amunt t a deprivatin f liberty, withut apprpriate authrisatin In this case the curt fund that the parents had cnsented t the arrangements by which their daughter was placed in accmmdatin, under sectin 20 Children Act 1989 The restrictins placed n RK were n mre than what was reasnably required t prtect RK frm harming herself r thers within her range as it was impssible t care fr RK in her wn hme withut an intensive supprt package. The judge went n t say that wherever RK is accmmdated the same restrictins n her liberty are essential AB v LCC AB suffered frm vascular dementia and cgnitive impairment In 2010 the Curt had appinted AB s Relevant Persn s Representative (RPR) as his Litigatin Friend in relatin t prceedings Issue befre the curt The Curt f Prtectin cnsidered the appintment f a Litigatin Friend in the cntext f a challenge t a deprivatin f liberty pursuant t sectin 21A f the MCA

14 In particular the curt cnsidered whether it was apprpriate t appint an persn s RPR as Litigatin Friend rather than the Official Slicitr Outcme The curt was f the view that Parliament had plainly intended that the RPR shuld play a central rle in challenges invlving a review in respect f DOLS The rle f RPR as set ut in the MCA 2005 and the Cde f Practice is t meet with the relevant persn and represent him in matters relating t his deprivatin f liberty. In particular the Cde f Practice states that the RPR shuld supprt the persn in making an applicatin t the Curt f Prtectin There was n impediment t the RPR als acting as Litigatin Friend prvided that: They are nt already a party t prceedings The RPR fulfils the cnditins set ut in the rules (see Curt f Prtectin Rules, r 140) The RPR is able and willing t act as Litigatin Friend in the persn s best interests The apprpriate prcedure is cmplied with (see Curt f Prtectin Rules, r 143) In the future the curt shuld try t determine whether there was a suitable litigatin friend, rather than simply appinting the Official Slicitr, and in many cases the RPR culd fulfil that rle Where a family member RPR is the applicant in prceedings, the curt might feel it is mre apprpriate t make the relevant persn a respndent and appint the Official Slicitr r anther persn as Litigatin Friend C v Blackburn with Darwen Brugh Cuncil C suffered frm epilepsy and an rganic persnality disrder resulting in aggressive and impulsive behaviur, bsessive-cmpulsive traits and a lng histry f self-harm He was made subject t the guardianship f the lcal authrity in June 2010 In January 2011 the plice were called t the care hme in which he was living after he had kicked dwn a dr in an attempt t leave. A standard DOLS authrisatin was issued C was subject t 1:1 supervisin including during trips with his family. Trips were frequent but limited by the availability f supervising staff An applicatin was issued n behalf f C challenging the DOLS authrisatin Issues befre the curt The curt was required t cnsider whether C was ineligible fr prtectin under the DOLS regime due t him being subject t guardianship under the MHA 1983 The curt went n t cnsider whether C was in fact being deprived f his liberty 14

15 Outcme The Curt f Prtectin fund that, as the effect f the authrisatin (which seeks t keep him residing at the care hme) des nt cnflict with the requirements f the guardianship regime, C des qualify fr the prtectin f the DOLS regime As C was required t reside at the care hme by the lcal authrity as his guardian, it wuld nt be pssible t use the MCA 2005 t authrise a deprivatin f liberty elsewhere The Curt gave cnsideratin t the Cheshire case and decided that it was nt realistically pssible fr him t live an uncnfined life in the cmmunity due t the extent f his difficulties On balance it was decided that C was subject t a restrictin as ppsed t a deprivatin f his liberty. The existence f lcked drs and a requirement f supervisin are nt in themselves a deprivatin f liberty. The limit n the number f utings as a cnsequence f staffing levels did nt tip the balance as C had regular access t the cmmunity and t his family The standard authrisatin was therefre discharged Austin v United Kingdm (2012) Key Facts This is the lng awaited decisin f the Grand Chamber f the ECHR in relatin t the May Day prtests in 2001 where members f the public were kettled at Oxfrd Circus fr arund seven hurs Issues befre the curt The Huse f Lrds had relied n a pragmatic apprach t find that they were nt deprived f their liberty and Article 5 (ECHR) was nt engaged The claimants argued that the purpse r aim f the restrictins culd nt be taken int accunt in determining the existence f a deprivatin f liberty, but nly when cnsidering whether that deprivatin was prprtinate The UK Gvernment argued that the curt shuld lk at the cntext in which the restrictins were impsed, which included the fact that there were n ther less restrictive alternatives Outcme The curt stated that the purpse behind a measure and an underlying public interest mtive has n bearing n whether a persn is deprived f their liberty, althugh it may be relevant t whether that deprivatin is justified Hwever, in taking int accunt the type and manner f implementatin f a restrictive measure, the curt is able t have regard t the specific cntext and circumstances surrunding the restrictin On the facts f this case it was decided that there was n deprivatin f liberty as the plice had n alternative, the measures adpted were the least intrusive and mst effective and there was n bvius pint at which the restrictin n mvement wuld becme a deprivatin f liberty 15

16 ZH v Cmmissiner f the Plice fr the Metrplis (2012) Key Facts ZH was a severely autistic and epileptic 19-year-ld wh culd nt cmmunicate by speech He was taken by his specialist schl t a public swimming pl fr a familiarisatin visit; hwever this did nt g well t say the least and resulted in the managers f the swimming pl calling the plice when ZH refused t mve frm the plside ZH was frcibly remved, handcuffed, put in leg restraints and placed in the back f a plice van fr apprximately 40 minutes As a result ZH suffered psychlgical trauma and an exacerbatin f his epileptic seizures Issues befre the curt The curt cnsidered ZH s claims f assault and battery, false imprisnment, unlawful disability discriminatin and breaches f human rights (Articles 3, 5 and 8) Mst f the plice fficers were nt aware f sectin 5 and 6 f the MCA 2005 at the time and claimed that they relied upn the cmmn law pwer f necessity Outcme The judge fund that it was nt necessary fr the plice fficers t have the MCA 2005 in mind at the material time but they did need t shw that at the material time (i.e. when they carried ut the acts): They believed that ZH lacked capacity t make decisins abut his safety at the swimming pl They believed that it was necessary in ZH s best interests t act as they did, and This was a reasnable and prprtinate respnse. The judge als stated that where the prvisins f the MCA 2005 apply, the cmmn law dctrine f necessity has n applicatin Finally it was fund that a deprivatin f liberty had in fact ccurred here due t the nature and duratin f the restraint, which in the circumstances amunted t mre than merely a restrictin n mvement ZH was awarded 28,250 in damages, which included damages fr breach f the Disability Discriminatin Act, pst traumatic stress disrder, exacerbatin f epilepsy and trespass t the persn CC v KK and STCC KK was an 82 year ld lady suffering frm vascular dementia Parkinsn s Disease and paralysis f her left side 16

17 The lcal authrity, fllwing assessments, cncluded that KK lacked capacity and that it was in her best interests t be placed in a nursing hme KK expressed a cnsistent and strng wish t return hme and a standard DOLS authrisatin was given. KK challenged the standard authrisatin under s21a MCA Subsequently KK was given trial hme visits and further requests fr a DOLS authrisatin were refused n the basis that there was n lnger a deprivatin f liberty By the time f the final hearing, KK was spending part f every day visiting her wn hme Issue befre the curt The Curt f Prtectin was asked t cnsider whether KK had capacity t make decisins abut her residence and care. An independent expert psychiatrist was instructed and prvided a reprt The curt was als asked t determine whether she had been r was currently being deprived f her liberty Outcme KK did have capacity t make decisins abut her residence at care, despite the unanimus views f the independent expert psychiatrist and all prfessinals invlved Whilst KK underestimated sme f her needs, she did nt d s t an extent that wuld suggest that she lacked capacity t weigh up infrmatin The decisin helpfully sets ut the apprach that curts shuld fllw when addressing questins f capacity. The curt must make the final decisin in relatin t the persn s functinal ability after cnsidering all f the evidence, nt merely the views f the independent expert Prfessinals and the curt shuld nt be unduly influenced by the perceived need t prtect the vulnerable adult (the prtectin imperative ), but instead any assessment f capacity must be detached and bjective At n pint had KK been deprived f her liberty and nce KK was returning hme n a daily basis the Curt cncluded that the circumstances fell well shrt f a deprivatin f liberty It was KK s disability itself which impsed a degree f restrictin n her life and it was nt cnsidered that the circumstances f her placement in the nursing hme significantly added t that restrictin Pending the determinatin by the Supreme Curt f the appeals in the cases f P and Q and Cheshire West, the judge nted that there is currently sme uncertainty n the future interpretatin f the deprivatin f liberty prvisins Hwever the right curse is t have regard t the purpse fr a decisin as part f the verall circumstances and cntext, but t fcus n the cncrete situatin in determining whether the bjective element is satisfied 17

18 Whilst KK was cmpletely dependent n thers fr her care and treatment, when cnsidering the relevant cmparatr anybdy with the same disability wuld experience a significant physical restrictin n the life that they are able t lead. There was n suggestin that the manner in which KK was cared fr in the nursing hme was significantly mre restrictive than if she were t live at hme in her bungalw Overall it was cncluded that the arrangements fr her care culd nt be described as cntinuus cntrl and KK had nt lst a significant level f persnal autnmy as a result f her residence at the nursing hme Since the jint appeals f Cheshire West and P and Q are unlikely t be heard by the Supreme Curt until mid-2013 it is anticipated that the apprach f Mr Justice Baker in this case is likely t be fllwed in similar cases in the interim Cntacts Stephen King, Partner. Tel: stephen.king@mills-reeve.cm Jill Masn, Partner. Tel: jill.masn@mills-reeve.cm Stuart Knwles, Cnsultant Slicitr. Tel: stuart.knwles@mills-reeve.cm Jill Westn, Assciate: Tel: jill.westn@mills-reeve.cm Ruth Creed, Assciate. Tel: ruth.creed@mills-reeve.cm Duncan Astill, Partner. Tel: duncan.astill@mills-reeve.cm Philip Grey, Assciate. Tel: philip.grey@mills-reeve.cm Lrna Shastri-Hurst, Senir Slicitr. Tel: lrna.shastri-hurst@mills-reeve.cm Legislatin Mental Capacity Act 2005 Mental Health Act 2007 Care Standards Act 2000 Disability Discriminatin Act Mental Health Act 1983 Children Act 1989 Curt f Prtectin Rules 2007 Case law DCC v KH and thers W Primary Care Trust v TB A Cunty Cuncil v MB MIG and MEG Re A and Re C AB v LCC C v Blackburn with Darwen Brugh Cuncil Austin v United Kingdm ZH v Cmmissiner f the Plice fr the Metrplis CC v KK and STCC Useful links Deprivatin f Liberty safeguards - Cde f Practice Deprivatin f Liberty Safeguards: A guide fr hspitals and care hmes 18

19 Deprivatin f Liberty Safeguards: A guide fr primary care trusts and lcal authrities Deprivatin f Liberty Safeguards: A guide fr relevant persn's representatives Deprivatin f Liberty safeguards: regulatins and assessr training Mental Capacity Act 2005: Deprivatin f liberty safeguards briefing sheet What are the Mental Capacity Act Deprivatin f Liberty Safeguards? - Guidance leaflet Mills & Reeve Briefing: A Cunty Cuncil v MB Mills & Reeve Briefing: Care planning leads t unlawful deprivatin f liberty - June 2011 Mills & Reeve Briefing: A significant judgment n deprivatin f liberty - Nvember 2011 Mills & Reeve Briefing: RK - anther deprivatin f liberty case - December T +44(0) Mills & Reeve LLP is a limited liability partnership authrised and regulated by the Slicitrs Regulatin Authrity and registered in England and Wales with registered number OC Its registered ffice is at Funtain Huse, 130 Fenchurch Street, Lndn, EC3M 5DJ, which is the Lndn ffice f Mills & Reeve LLP. A list f members may be inspected at any f the LLP's ffices. The term "partner" is used t refer t a member f Mills & Reeve LLP. The cntents f this dcument are cpyright Mills & Reeve LLP. All rights reserved. This dcument cntains general advice and cmments nly and therefre specific legal advice shuld be taken befre reliance is placed upn it in any particular circumstances. Where hyperlinks are prvided t third party websites, Mills & Reeve LLP is nt respnsible fr the cntent f such sites. Mills & Reeve LLP will prcess yur persnal data fr its business and marketing activities fairly and lawfully in accrdance with prfessinal standards and the Data Prtectin Act If yu d nt wish t receive any marketing cmmunicatins frm Mills & Reeve LLP, please cntact Suzannah Armstrng n r suzannah.armstrng@mills-reeve.cm 19