This guidance was first produced in April 2014; see also updated guide from February 2015.
Everyone has the right to liberty and security of person. No one can be deprived of their liberty except in accordance with a prescribed legal procedure. The procedures for compulsory admission to hospital under the Mental Health Act 1983 are addressed elsewhere. This article deals with those cases where decisions are taken in the best interests of a person who lacks mental capacity which result in a deprivation of liberty. For ease of reference the relevant individuals are referred to as P which accords with the practice in the Court of Protection.
- There is no definition of ‘liberty’. We know only that it cannot lawfully be taken away other than in the circumstances prescribed by the European Convention on Human Rights which is incorporated into UK law by Schedule 1 Human Rights Act 1998. A deprivation of liberty can be justified for a person of ‘unsound mind’ Art 5(1)(e) as long as it is in accordance with a procedure prescribed by law.
- By s4A Mental Capacity Act 2005 no person has authority to deprive P of his liberty other than by an order of the Court of Protection under s16(2)(a), under s4B where a decision is sought in the Court of Protection in relation to life sustaining treatment or a ‘vital act’ necessary to prevent a deterioration in P’s condition or under an ‘authorisation’ Schedule A1.
- There are two types of authorisation: standard and urgent. Under Part 5 of Schedule A1 an urgent authorisation can be made straight away to authorise a deprivation of liberty for a period of seven days. It can only be made when a request for a standard authorisation has been or will be made but the need for the authorisation is so urgent that it is appropriate for the detention to begin before completion of the standard authorisation.
- The managing authority, namely the manager of the residential care home or the hospital managers, must make an application for a standard authorisation to the supervisory body. In England this is the local authority or clinical commissioning group. There are standard forms and a procedure to be followed.
- Six assessments must be carried out. These are contained in Part 3 of Schedule A1 and are the age requirement, the mental health requirement, the mental capacity requirement, the best interests requirement, the eligibility requirement and the no refusals requirement.
- The age requirement requires that detained person, known as the relevant person, must be over the age of 18. (para 13 Sched A1)
- The mental health requirement requires that the relevant person to suffering from mental disorder, as defined with the Mental Health Act 1983. It includes a person with a learning disability who is not displaying seriously irresponsible conduct or abnormally aggressive behaviour who would not otherwise fall within the definition with the MHA. (para 14, Sched A1)
- The mental capacity requirement is that the relevant person lacks capacity to decide whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment. (para 15, Sched A1)
- In order to satisfy the best interests requirement, four conditions must be met namely that it is in the relevant person’s best interests to be detained, that it is necessary to prevent harm to the relevant person and that it is a proportionate response to the likelihood and seriousness of that harm. (para 16, Sched A1). This requirement must be assessed by a suitably qualified assessor and cannot be the same person who has also conducted the mental health assessment. The assessor has a duty to consult and will review documentation and make recommendations as to the duration of the authorisation and any conditions to be attached to it. (paras 38-45 Sched A1)
- The eligibility requirement is that the relevant person is not ineligible to be deprived of his liberty under the Mental Capacity Act (para 17 Sched A1). This is further defined in Schedule 1A. A person will be ineligible if he meets the criteria for detention under the Mental Health Act. The MHA has primacy over the MCA: GJ v The Foundation Trust (2009) EWHC 2972 (Fam).
- The no refusals assessment will determine whether a valid advance directive exists or whether there is a decision made by a welfare deputy or a donee of a Lasting Power of Attorney, which would apply to some or all of the relevant treatment. (paras 18-20 Sched A1).
- A standard authorisation specifies the duration up to a maximum of 12 months plus any conditions. The Deprivation of Liberty Safeguards Code of Practice gives further guidance as to the authorisation process.
- Part 10 of Schedule A1 sets out the provisions for the appointment of a relevant person’s representative, who can seek a review of the authorisation and bring an appeal under s.21A MCA.
- Under s.21A the Court of Protection has power to determine any question relating to whether the qualifying requirements are met or the period, purpose or conditions of a standard or urgent authorisation. An application for the court to exercise this power can be brought by the relevant person or the relevant person’s representative, or any other person with the permission of the court. There are standard forms to make such an application to the Court of Protection and the court has issued a practice direction for this procedure.
- The above applies only to those in a care home or hospital and not to those in a supported living arrangement such as in a small home setting catering for one or more residents. In such cases an application to authorise a deprivation of liberty must be made to the Court of Protection before the detention commences. The court will consider whether the proposed arrangements amount to a deprivation of liberty and if so whether this is in the best interests of the individual, before sanctioning the same under ss.4, 4A and 16 MCA.
- Where a deprivation of liberty is authorised in this way by an order of the court, this will remain subject to periodic review by the court.
- It is necessary to know what amounts to a deprivation of liberty. The leading authority is P v Cheshire West and Chester City Council (2014) UKSC 19 in which it was held that the test is whether a person is under continuous supervision and control and not free to leave in the sense of being able to remove himself permanently in order to live where and with whom he chooses. It is the Strasbourg court to which we must look for authority on the meaning of Art 5 and from that jurisdiction there are six propositions.
- First, the question is one of degree or intensity, not nature or substance, for which the concrete facts are to be examined; Guzzardi v Italy 1980 3EHRR.
- Second, detention can take place regardless of the openness of the conditions: Ashingdane v UK (1985) 7 EHRR.
- Third, there is a subjective element so if there is true and valid consent this would suggest there is no deprivation of liberty; Storck v Germany 2005 43 EHRR
- Fourth, there are the situations which have been held to amount to a deprivation of liberty where (a) having been admitted by a lawful representative, the person tries to leave; Shtukaturov v Russia 2008 54 EHRR, (b) a person initially consents but then tries to leave; Storck and (c) the incapacitated person who does not try to leave; HL v UK 2004 ECHR 471.
- Fifth, liberty is too important to be lost for the simple reason that the person has given himself up to detention, especially where he lacks capacity to object; De Wilde v Belgium No1 (1971) 1 EHRR.
- Sixth, the state has a positive obligation to protect those within its jurisdiction, of whom it knows or ought to have known, from arbitrary detention. This extends to the activities of a guardian; Storck and Shtukaturov.
- The authorisation procedure in Sched A1 applies to those over 18. The other deprivation of liberty powers under the Mental Capacity Act apply only to those over the age of 16. A young person who is living at home but not free to leave as he wishes by the actions of a parent may not necessarily be deprived of his liberty. This seems to be based on the ‘rights of the holder of parental authority’; Nielson v Denmark 1988 11 EHRR 175.
- Unfortunately there is no ‘acid test’ but there are features which are not relevant namely, a person’s compliance or lack of objection, the relative normality of the placement and the reason or purpose behind a particular placement. Note that compliance is very different from a valid consent made by someone with capacity to decide. The issue is whether P would be allowed to leave if he had the physical and mental ability to do so.
In assessing capacity it should be noted that capacity is assumed until the contrary is proved, s1(2); an unwise decisions might none the less be a valid one, s1(4) and assistance appropriate to the circumstances must given to assist P in trying to make a decision; s3(2).