Chapter 6: Restraint and Deprivation of Liberty
This is part of the online companion site to the book Medical Treatment: Decisions and the Law -
The Mental Capacity Act in Action, edited by Christopher Johnston, written by members of 3 Serjeants'
Inn and published by Bloomsbury Professional in 2010.
The site provides (1) updating material as it becomes available and (2) hyperlinks to website addresses
given in the hard copy. The material is organised according to the book's chapter headings. Click on the
chapter headings on the left-hand side to access the material for other chapters.
Updating material
Updating material will be added here as developments occur.
Update to paragraph 6.9 [Restraint authorised under the MCA]
26/05/10: Court of Protection case declaring restraint in incapable patient's best interests
The case of DH NHS Foundation Trust v PS [2010] EWHC 1217 (Fam) concerned a 55 year old woman (PS) who had uterine cancer and lacked capacity to decide about her medical treatment. Sir Nicholas Wall, President of the Court of Protection, found that it was in her best interests to undergo an operation to treat the condition. The President stated further at paragraph 19: "I am further satisfied, given her hospital and needle phobia, that it may well be necessary to sedate PS in order to convey her to hospital, and that the risks of sedation in these circumstances have been appropriately addressed by the Trust. The need for such sedative treatment will only arise if persuasion fails, and I am accordingly satisfied that it is necessary for the trust to authorise such treatment as being in PS's best interests, and to use force if necessary to sedate her and convey her to hospital."
Link to judgment: http://www.bailii.org/ew/cases/EWHC/Fam/2010/1217.html
01/04/10: Wide-ranging judgment on deprivation of liberty and other issues
In G v E v A Local Authority v F [2010] EWHC 621 (Fam), handed down on 26/03/10, and subsequently published in anonymised form, Mr Justice Baker gave a wide-ranging judgment following an interim hearing in a welfare case. A local authority had removed E, a 19 year old man with a severe learning disability from his adult placement carer, F, without giving any or any adequate consideration to his family life and without a Court of Protection application or authorisation under the Deprivation of Liberty Safeguards. Mr Justice Baker addressed the following points of wider interest:
- He made declarations that Articles 5 and 8 had been breached.
- He addressed issues concerning interim authorisation by the court of a deprivation of liberty.
- He heard argument on the admissibility of statements made by an incompetent person. He agreed with and endorsed the analysis of McFarlane J in Re SA (see main MDTL page) as amplified by the Official Solicitor in argument.
- He was asked to consider issues relating P's tenancy agreement, given that he had no capacity to enter into it; and issues relating to whether his supported living arrangements should properly be described as a "care home" under the Deprivation of Liberty Safeguards and the Care Standards Act 2000, but made no findings on these points at this interim stage of the proceedings.
Amy Street represented the Official Solicitor as E's litigation friend.
Link to judgment: http://www.bailii.org/ew/cases/EWHC/Fam/2010/621.html
Hyperlinks
Paragraph 6.11 - Footnote 1:
For the full text see: http://www.echr.coe.int/nr/rdonlyres/d5cc24a7-dc13-4318-b457-5c9014916d7a/0/englishanglais.pdf .
Paragraph 6.30 - Footnote 1:
http://www.dh.gov.uk/en/SocialCare/Deliveringadultsocialcare/MentalCapacity/MentalCapacityActDeprivationofLibertySafeguards/index.htm
Paragraph 6.37 - Footnote 1:
Mental Capacity Act 2005: Deprivation of Liberty Safeguards Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice (TSO, London, 2008). See in particular para 2.6. http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_085476 .
Paragraph 6.43 - Footnote 1:
MCA DOLS standard forms can be found at: http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_089772 .