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
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Update to Chapter 6 (Restraint and Deprivation of Liberty)
Leading deprivation of liberty case
On 9th November 2011 the Court of Appeal gave judgment in the case of Cheshire West and Chester Council v P [2011] EWCA 1257. Link to transcript here. Munby LJ gave the leading judgment, allowing the local authority’s appeal against Baker J’s declaration that P’s circumstances amounted to a deprivation of liberty. The judgment should be read by any practitioner who has to consider this issue. Munby LJ introduced a new approach which is likely to lead to fewer findings of deprivation of liberty, emphasising the importance of identifying the relevant “comparator”. He set out his conclusions at paragraph 102:
“i) The starting point is the “concrete situation”, taking account of a whole range of criteria such as the “type, duration, effects and manner of implementation” of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, not nature or substance.
ii) Deprivation of liberty must be distinguished from restraint. Restraint by itself
is not deprivation of liberty.
iii) Account must be taken of the individual’s whole situation.
iv) The context is crucial.
v) Mere lack of capacity to consent to living arrangements cannot in itself create a deprivation of liberty.
vi) In determining whether or not there is a deprivation of liberty, it is legitimate
to have regard both to the objective “reason” why someone is placed and
treated as they are and also to the objective “purpose” (or “aim”) of the
placement.
vii) Subjective motives or intentions, on the other hand, have only limited
relevance. An improper motive or intention may have the effect that what
would otherwise not be a deprivation of liberty is in fact, and for that very
reason, a deprivation. But a good motive or intention cannot render innocuous what would otherwise be a deprivation of liberty. Good intentions are
essentially neutral. At most they merely negative the existence of any
improper purpose or of any malign, base or improper motive that might, if
present, turn what would otherwise be innocuous into a deprivation of liberty.
Thus the test is essentially an objective one.
viii) In determining whether or not there is a deprivation of liberty, it is always
relevant to evaluate and assess the ‘relative normality’ (or otherwise) of the
concrete situation.
ix) But the assessment must take account of the particular capabilities of the
person concerned. What may be a deprivation of liberty for one person may
not be for another.
x) In most contexts (as, for example, in the control order cases) the relevant
comparator is the ordinary adult going about the kind of life which the ablebodied man or woman on the Clapham omnibus would normally expect to
lead.
xi) But not in the kind of cases that come before the Family Division or the Court of Protection. A child is not an adult. Some adults are inherently restricted by their circumstances. The Court of Protection is dealing with adults with disabilities, often, as in the present case, adults with significant physical and learning disabilities, whose lives are dictated by their own cognitive and other limitations.
xii) In such cases the contrast is not with the previous life led by X (nor with some future life that X might lead), nor with the life of the able-bodied man or
woman on the Clapham omnibus. The contrast is with the kind of lives that
people like X would normally expect to lead. The comparator is an adult of
similar age with the same capabilities as X, affected by the same condition or
suffering the same inherent mental and physical disabilities and limitations as
X. Likewise, in the case of a child the comparator is a child of the same age
and development as X.”
Link to costs judgment here.
Update to Chapter 6 (Restraint and Deprivation of Liberty)
Part II of the Mental Health Act 1983 provides a comprehensive code for
compulsory admission to hospital for non-compliant incapacitated patients
R (Sessay) v (1) South London & Maudsley NHS Foundation Trust (2) Commissioner of the Police of the Metropolis [2011] EWHC 2617 (Admin) (13th October 2011) is an important case concerning the interplay between the Mental Health Act 1983 (“MHA”), the Mental Capacity Act 2005, the common law and police powers, in the context of an admission to hospital for assessment under s2 MHA.
Link to judgment here.
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Update to Chapter 6 (Restraint and Deprivation of Liberty), paragraphs 6.31-6.36 [What is 'deprivation of liberty'?] & 6.37 [Indentifying a deprivation of liberty]
P (otherwise known as MIG) and Q (otherwise known as MEG) v Surrey County Council [2011] EWCA Civ 129
In a long-awaited judgment (following a hearing on 21st October 2010) the Court of Appeal has upheld the decision of Parker J that two learning disabled teenage girls, one living in a foster home, the other in a care home, were not deprived of their liberty under Article 5 ECHR
.
Parker J’s judgment was controversial, viewed by some as a watering down of the protection which Article 5 should provide. It was accused of continuing a “dangerous conflation between the question of the existence of objective deprivation and the separate issue of justification of any deprivation by reference to the person’s best interests” (commentary on Mental Health Law Online, http://www.mentalhealthlaw.co.uk/Re_MIG_and_MEG_(2010)_EWHC_785_(Fam)
The Court of Appeal has upheld most of the “magisterial analysis” in Parker J’s “excellent judgment”.
In his leading judgment, Wilson LJ disagreed with Parker J’s observation that a person’s happiness is relevant to whether she is deprived of her liberty. He considered that the following factors were relevant:
- whether the person objects to the confinement
- the use of medication
- the purpose of the arrangements (although not whether the purpose is to further the person’s best interests)
- the relative normality of the living arrangements
Smith and Mummery LJJ gave separate concurring judgments. Smith LJ made the point that the person’s previous arrangements were not relevant to the question of whether the present arrangements engage Article 5. In other words, they thought that it was impermissible to reason that if a person had greater freedom in her current arrangements than previously, this enhancement was relevant to the question whether the current arrangements amount to a deprivation of liberty or not. Mummery LJ agreed that there were dangers in such an approach.
The Court’s judgment is carefully reasoned. However, it is unlikely to satisfy those who found fault with Parker J, not least because it seeks to persuade its readers that it has entirely ignored what the consequences would have been of departing from Parker J’s finding (namely a backlog of pending court deprivation of liberty reviews, unserviceable by both the Court of Protection and the Official Solicitor). Even allowing for the fact that we require and expect judges to ignore legally irrelevant points even if they dominate all thoughts about a case, critics will find it hard to believe that the point which the Court expressly ignores early in its judgment has not influenced its reasoning. Conversely, supporters will argue that the Court’s reasoning does stand up to analysis, not least because Article 5 was surely never intended to apply to carers’ best efforts to provide as normal a life as possible for someone who lacks capacity.
Link to transcript
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Update to Chapter 6 (Restraint and Deprivation of Liberty), para 6.22 (Practical issues)
Added 26.11.10 – Another restraint / medical treatment case
Mrs Justice Hogg authorised the treatment and possible restraint of a woman known as SB. The case was heard in public under COP Practice Direction 9E. It is not understood that a transcript has been prepared. See the Telegraph’s news item here:
http://www.telegraph.co.uk/health/healthnews/8074306/Judge-tells-doctors-they-can-enforce-treatment-on-mentally-ill-woman.html
Amy Street represented SB by her litigation friend the Official Solicitor.
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Update to Chapter 6 (Restraint and Deprivation of Liberty), para 6.22 (Practical issues)
Added 26.11.10 – Judgment available in Re D case concerning restraint for medical treatment
The transcript of the judgment in the case of Re D ([2010] EWHC 2535 (COP), hearing date 29.9.10, judgment date 14.10.10) is now available (previously referred to as an update to Chapter 5 focusing on the publicity aspect). D was a 69 year old woman with a long history of schizophrenia who lacked capacity to make decisions concerning her medical treatment. She had a prolapsed uterus and needed a hysterectomy. In the circumstances, a lengthy period of sedation would be required. Mrs Justice Macur sanctioned the proposed care plan, even if it were to amount to a deprivation of liberty.
Bridget Dolan represented D by her litigation friend the Official Solicitor.
Link to transcript
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Update to Chapter 6 (Restraint and Deprivation of Liberty), paras 6.38 (Authorising a deprivation of liberty) and 6.41-6.44 (The DOLS procedure)
Added 25.10.10 – Significant Deprivation of Liberty judgment
On 22.10.10 Charles J handed down judgment in the case of A County Council v MB, JB and A Residential Home [2010] EWHC 2508 (COP).
The central issue was “the legality of the deprivation of MB’s liberty between (a) the expiration of a standard authorisation given under Schedule A1 MCA 2005 and expressed to come into force on Monday 1 March 2010 and to remain in force until Monday 29 March 2009, and (b) the making of an order by the court on 13 April 2010 under s. 16 MCA which authorised her deprivation of liberty at the third Respondent (the Residential Home).”
MB sought a declaration that from the expiry of that standard authorisation (which was accepted on her behalf to be at midnight on 29 March 2010) until the making of the order on 13 April 2010 she was unlawfully deprived of her liberty at the Residential Home, in breach of her Article 5 rights.
The Applicant County Council asserted that there has been no breach of MB’s Article 5 rights for the following reasons:
i) they were authorised to deprive MB of her liberty by s. 4B MCA 2005, alternatively
ii) the deprivation of liberty was authorised by the second urgent authorisation, and
iii) in any event, there was no arbitrary deprivation of liberty and therefore there was no breach of MB’s Article 5 rights.
The court gave important guidance, including on issues relating to the duration and timings of authorisations of deprivation of liberty and the use of s4B MCA.
Bridget Dolan was instructed on behalf of the Official Solicitor as litigation friend to MB.
Link to transcript
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Update to Chapter 6 (Restraint and Deprivation of Liberty), para 6.39 (Court authorisation)
Added 25.10.10 – Guidance on practice “where someone lacking capacity or under a disability requires to be removed from premises with the help of the Police”.
Practitioners should be aware of the Family Division judgment of Coleridge J of 8.4.09.
At paragraphs 31 and 32, Coleridge J endorsed the following guidance and indicated that the President of the Family Division and Court of Protection approved it.
“In the event that it is expected that the assistance of the Police may be required to effect or assist with the removal of a vulnerable/ incapacitated adult (“P”) which the Court is being asked to authorise, the following steps should generally be taken:
(1) the Local Authority/NHS body/other organisation/person (the Applicant) applying to the Court for an authorisation to remove P should, in advance of the hearing of the Application, discuss and, where possible, agree with the Police the way in which it is intended that the removal will be effected, to include, where applicable, the extent to which it is expected that restraint and/or force may be used and the nature of any restraint (for example, handcuffs) that may be used;
(2) the Applicant should ensure that information about the way in which it is intended that removal will be effected is provided to the Court and to the litigation friend (in cases where a person has been invited and/or appointed to act as P’s litigation friend) before the Court authorises removal. In particular, the Court and the litigation friend should be informed whether there is agreement between the Applicant and the Police and, if there is not, about the nature and extent of any disagreement;
(3) where the Applicant and the Police do not agree about how removal should be effected, the Court should give consideration to inviting/directing the Police to attend the hearing of the Application so that the Court can, where appropriate, determine how it considers removal should be effected and/or ensure that any authorisation for removal is given on a fully informed basis.”
Link to transcript
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Update to Chapter 6 (Restraint and Deprivation of Liberty), paras 6.39-6.40 (Court authorisation)
Added 21.10.10 – LSC funding in relation to Deprivation of Liberty court reviews
The transcript has become available of a judgment of Holman J in the Court of Protection on 19th November 2009, NCC v KM and SM.
Holman J made an order which included authorising a deprivation of liberty in KM’s best interests. He provided for annual reviews by a district judge of the Court of Protection. Holman J recognised that it was important for KM to be represented in the process of such reviews by his litigation friend the Official Solicitor and for KM’s mother to take part, with the effect that the Official Solicitor and KM’s mother would need to be involved in the case on a long term basis. This raised a potential difficulty relating to the public funding of both parties. As the judge noted, “the scheme of public legal funding is such that some endpoint has to be applied to the scope of any current certificate.” This was a ‘final’ hearing; and the direction for a detailed assessment of the publicly funded costs meant that the existing certificates would come to an end. The judge did not consider he had any power to require the grant of new certificates for the proposed purpose of annual reviews, or to dictate that any item of expenditure is a proper cost to be incurred for the purpose of an annual review. However, the Judge did what he could to facilitate the future involvement of the parties requiring public funding by stating in the order that “in the opinion of the court, the preparation of evidence or submissions for the purpose of annual reviews would be a proper cost to be incurred pursuant to new certificates issues by the Legal Services Commission to KM and indeed, if she wishes to participate, his mother”.
Link to transcript
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Updates to paragraphs 6.31-6.36 [What is ‘deprivation of liberty’?] & 6.37 [Identifying a deprivation of liberty]
Deprivation of liberty in the home?
Two important cases fuel continuing debate about “how much weight should be put on a benevolent purpose” as the MTDL authors trailed in paragraph 6.37.
In A Local Authority v A; A Local Authority v C [2010] EWHC 978 (Fam), Munby J (as he then was) decided that neither (i) A, a child (whose case he considered under the inherent jurisdiction of the High Court) nor (ii) C, an adult (whose case he considered in the Court of Protection) were deprived of their liberty. Both were cared for in the family home by parents who locked their respective bedroom doors at night as the only practicable way of managing their behavioural problems and disturbed sleep patterns.
http://www.bailii.org/ew/cases/EWHC/Fam/2010/978.html
In Surrey County Council v MIG and MEG [2010] EWHC 785 (Fam), Parker J considered the case of two girls aged 17 and 18, with moderate to severe learning disability. MIG was living with her former respite carer in the carer’s family home. MEG lived in a small group home with four residents. Parker J decided that neither was deprived of her liberty. Link to source
Other developing case law on identifying a deprivation of liberty
See:
G v E v A Local Authority v F [2010] EWHC 621 (Fam)
The PCT v P, AH and a Local Authority, 21st December 2009 (although made public only in 2010)
BB v AM & Others [2010] EWHC 1916 (Fam)
Link to source
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Update to paragraphs 6.39-6.40 [Court authorisation]
Court reviews of deprivation of liberty
In the matter of BJ [2009] EWHC 3310 (Fam) is the post-MCA follow-up in the case of Salford City Council v GJ [2008] 2 FLR 1295 concerning court reviews of deprivations of liberty.
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Update to paragraphs 6.45-6.48 [MCA or MHA?]
Developing case law on “ineligibility”
In addition to GJ v The Foundation Trust [2009] EWHC 2972 (Fam) (paragraph 6.45) and A Primary Care Trust v TB [2009] EWHC 1737 (Fam) (paragraph 6.47), see:
BB v AM & Others [2010] EWHC 1916 (Fam)
Link to source
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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:
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He made declarations that Articles 5 and 8 had been breached.
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He addressed issues concerning interim authorisation by the court of a deprivation of liberty.
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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.
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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 here .
Paragraph 6.30 - Footnote 1:
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.
Paragraph 6.43 - Footnote 1:
MCA DOLS standard forms can be found here