Deprivation of liberty

Case and summary Date added Categories
AB had capacity to consent to the care, support and accommodation arrangements which were provided as part of his conditional discharge but, following the MM case, there was an unlawful deprivation of liberty. The High Court extended the inherent jurisdiction to regularise the position of a capacitous detained mental health patient subject to restrictions as part of his conditional discharge which satisfied the objective elements of a deprivation of liberty (firstly, it was clear that there was no legislative provision governing this situation in that the Mental Health Act provided no remedy; secondly, it was in the interests of justice; and, thirdly, there were sound and strong public policy justifications). The court order: authorised the deprivation of liberty for 12 months; required the applicant to apply to court if the restrictions increase, and no less than one month before the expiry of the authorisation; and provided for a review on the papers unless a party requests or the court requires an oral hearing. 2018‑12‑19 01:55:42 , , , Deprivation of liberty, , ,

(1) There is no power to impose conditions in a CTO which have the effect of depriving a patient of his liberty. (2) The patient's situation may be relevant to the tribunal's discharge criteria, and the tribunal may explain the true legal effect of a CTO (for the RC to act on that information), but if a patient is being unlawfully detained then the remedy is either habeas corpus or judicial review. 2018‑12‑17 14:40:29 , , , Deprivation of liberty, ,

— "The court is concerned in this application with the circumstances of RD. She is 14½ years old. She is currently the subject of an application for a care order under Part IV Children Act 1989, and is in the interim care of Northumberland County Council. ... RD has been placed by the Local Authority at a residential placement in Scotland, which I shall call Lennox House. ... The issue for my determination is whether the regime which applies to RD at Lennox House deprives her of her liberty in such a way as to engage her Article 5 ECHR rights. ... The implications of my determination are not insignificant. If I were to find as a fact that RD is deprived of her liberty in Article 5 terms, I would feel obliged to adjourn the Part IV proceedings, and would propose that the Local Authority present a petition to the nobile officium of the Court of Session seeking authorisation of that Court for RD's deprivation of liberty ... If I find that she is not deprived of her liberty, then there would be little impediment to my concluding the Part IV proceedings in this jurisdiction." 2018‑11‑29 21:13:11 , , Deprivation of liberty, ,

The patient had capacity to and was prepared to consent to a conditional discharge requiring that he live at a particular place, which he would not be free to leave, and from which he would not be allowed out without an escort. (1) The Supreme Court decided 4-1 that the MHA 1983 does not permit either the First-tier Tribunal or the Secretary of State to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient. (2) The dissenting decision was that the tribunal has the power to impose such conditions so long as the loss of liberty is not greater than that already authorised by the hospital and restriction orders, and that this power does not depend on the consent of the (capacitous) patient. 2018‑11‑28 13:49:47 , , , Deprivation of liberty, , ,

— "HC has just turned 13 years of age. I shall refer to his parents in this judgment as, respectively, M and F, and to his brother as B. HC currently lives in a residential unit in Yorkshire ("the unit"). By application dated 18th July 2018, the local authority responsible for HC's placement asks that the court determine whether HC's placement constitutes a deprivation of his liberty and, if this question is answered in the affirmative, for authorisation, by way of declaratory relief pursuant to the inherent jurisdiction. ... Although the LA brings the application, it does not assert a position one way or the other in relation to whether HC's placement at the unit constitutes a deprivation of his liberty. Exploring this rather unusual position with Ms Shaikh, I was told that the LA sought only to present the facts to the court and to leave it to me to adjudge whether the particular regime and its inherent restrictions constitutes a deprivation of liberty. In the event that I do so find, the LA seeks authorisation of the deprivation as being necessary and proportionate." 2018‑11‑08 02:48:41 , Deprivation of liberty, ,

— "This is an appeal from an order of Keehan J sitting in the Court of Protection dated 15 March 2016, following a judgment handed down on 21 January 2016: Birmingham City Council v D">[2016] EWCOP 8, [2016] PTSR 1129. Permission to appeal was granted by McFarlane LJ on 14 June 2016. The proceedings related to D, who was born on 23 April 1999, and was therefore 16 years old when the matter was heard by Keehan J in November 2015. Similar issues in relation to D had been before Keehan J in the Family Division earlier in 2015 when D was 15 years old, judgment (which was not appealed) having been handed down on 31 March 2015: Re D (A Child) (Deprivation of Liberty)">[2015] EWHC 922 (Fam),">[2016] 1 FLR 142.. In each case, the essential question was whether D was being deprived of his liberty within the meaning of and for the purposes of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms." 2018‑10‑23 18:24:57 , Deprivation of liberty, ,

— "The local authority, represented by Ms Mustafa of counsel, applies for a care order under Section 31 of the Children Act 1989 and for an order declaring that it is lawful for the local authority to deprive Y of his liberty. Y is the child of the First and Second Respondent parents. Mr and Mrs X are represented by Ms Prolingheuer of counsel. Mr and Mrs X oppose the application for a Care Order and DoL and submit he should return home to their care" 2018‑10‑22 14:27:39 , Deprivation of liberty, ,

— "This appeal relates to the exercise of the inherent jurisdiction by the High Court, Family Division when called upon to make orders which, but for a lack of capacity in the statutory system, would be made as secure accommodation orders under , s 25 (CA 1989)." 2018‑10‑15 20:15:07 , , Deprivation of liberty,

— "The purpose of the hearing, as it developed, was to deal with four matters: (i) A review of any relevant developments since the previous hearing in August 2017. (ii) The making of final orders. (iii) In that context, consideration of the implications of the fact that two of the children with whom I am concerned either have had or will, during the currency of the final order, if granted, have their sixteenth birthday. (iv) The formulation, if possible, of standard forms of order for use in such cases." 2018‑08‑08 20:33:34 , Deprivation of liberty, ,

— "I am concerned with a young man who is now 17 ½ years old and who I shall refer to as RT in this judgement. ... RT's behavioural issues are such that it is no longer safe for him at home with his adoptive parents and siblings. The local authority have therefore applied under the Mental Capacity Act 2005 for an order pursuant to section 4 and 16 of that act to deprive RT of his liberty so that he may be placed at [a place]. The arrangements for his care at that placement involve 2:1 supervision during the day and one to one at night. ... Is clear that the arrangements set out in the care plan amounts to a deprivation of liberty within the 'Storck' and Cheshire West cases. The level of supervision described is far in excess of that which might be applied to even the most unruly 17-year-old in a domestic setting. It clearly amounts to continuous supervision and control. ... It is very clear that it is RT's best interests to remain in an environment in which he can be protected from his own impulsivity and where others are protected. The very high levels of supervision are necessary and proportionate in the particular circumstances of this case. He needs intensive support and therapeutic input in order to reduce the risks he faces. This will not be a short-term recess but is likely to take months if not years. I therefore will make a deprivation of liberty order for one year. RT's 18th birthday is clearly a milestone for any teenager but I think has particular significance for RT. I will therefore list a review shortly before his 18th birthday which in particular will enable him to have a say at that point." 2018‑04‑25 23:34:51 , Deprivation of liberty, ,

— "Complaint: The applicant complains under (4) of the Convention that she did not have a speedy review of the legality of her detention. In particular, she contends that her right to a speedy review was violated both by delays on the part of the Public Protection Casework Section and the Parole Board, and from the unnecessary two-stage Tribunal/Parole Board process. Question to the Parties: Was the review of the applicant’s detention which commenced on 24 May 2011 and concluded on 21 March 2013 conducted 'speedily' within the meaning of Article 5(4) of the Convention?" (The first paragraph of the decision is wrong as the applicant's solicitor works for Campbell Law Solicitors.) 2018‑04‑21 22:48:11 , Deprivation of liberty, , , ,

— "These are four test cases that were stayed in accordance with my decision in . ... There are now over 300 such cases in which the MoJ and DoH (alone or together with the relevant applicant local authority or other public body) have not been able to identify a professional who the COP could appoint to act as P's Rule 3A representative. ... The first issue raised in these test cases is whether a welfare order approving a care plan advanced as being uncontroversial and which authorises any DOL caused by its implementation will have been made by a procedure that satisfies the minimum procedural requirements of Article 5 and common law fairness if P's participation in the proceedings is through the appointment of a general visitor to prepare a report under s. 49 of the MCA and that report supports the making of that welfare order. If the answer to that question is in the affirmative, the following issues arise, namely: (i) What approach should be taken by the COP to choosing this option or other options and in particular the appointment of a professional Rule 3A representative? (ii) What directions should be given to a visitor on what he should do and report on? (iii) Should the Crown be or remain as a Respondent? ... I have therefore concluded ... that periodic reviews by the COP with the benefit of information provided by a visitor meets the procedural requirements." 2018‑02‑05 23:03:08 , Deprivation of liberty, ,

— "... [T]he situation of the "young" or "very young" ... does not involve a "confinement" for the purposes of Storck component (a), even though such a child is living in circumstances which plainly satisfy the Cheshire West "acid test". ... For all present purposes, "confinement" means not simply "confining" a young child to a playpen or by closing a door, but something more: an interruption or curtailment of the freedom of action normally to be ascribed to a child of that age and understanding. ... Now at this point in the analysis a difficult question arises which has not hitherto been addressed, at least directly. At what point in the child's development, and by reference to what criteria, does one determine whether and when a state of affairs satisfying the "acid test" in Cheshire West which has hitherto not involved a "confinement" for the purposes of Storck component (a), and where Article 5 has accordingly not been engaged, becomes a "confinement" for that purpose, therefore engaging Article 5 (unless, that is, a valid consent has been given by someone exercising parental responsibility)? ... [W]hether a state of affairs which satisfies the "acid test" amounts to a "confinement" for the purposes of Storck component (a) has to be determined by comparing the restrictions to which the child in question is subject with the restrictions which would apply to a child of the same "age", "station", "familial background" and "relative maturity" who is "free from disability". ... The question is raised as to whether it is possible to identify a minimum age below which a child is unlikely to be "confined", and hence to be deprived of their liberty, given the expectation that a comparable child of the same age would also likely be under continuous supervision and control and not free to leave. ... Inevitably, one has to proceed on a case-by-case basis, having regard to the actual circumstances of the child and comparing them with the notional circumstances of the typical child of (to use Lord Kerr's phraseology) the same "age", "station", "familial background" and "relative maturity" who is "free from disability". ...[T]he best I can do, by way, I emphasise, of little more than 'rule of thumb', is to suggest that: (i) A child aged 10, even if under pretty constant supervision, is unlikely to be "confined" for the purpose of Storck component (a). (ii) A child aged 11, if under constant supervision, may, in contrast be so "confined", though the court should be astute to avoid coming too readily to such a conclusion. (iii) Once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion. That said, all must depend upon the circumstances of the particular case and upon the identification by the judge in the particular case of the attributes of the relevant comparator as described by Lord Kerr. The question is also raised whether, in undertaking the comparison required by the "acid test", the 2018‑02‑02 00:19:06 , Deprivation of liberty, ,

— "Section 25 of the makes express and detailed provision for the making of what are known as secure accommodation orders. Such orders may be made and, indeed, frequently are made by courts, including courts composed of lay magistrates. It is not necessary to apply to the High Court for a secure accommodation order. However, as no approved secure accommodation was available, the local authority required the authorisation of a court for the inevitable deprivation of liberty of the child which would be involved. It appears that currently such authorisation can only be given by the High Court in exercise of its inherent jurisdiction. ... I am increasingly concerned that the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. ... In my own experience it is most unusual that a secure accommodation order could be made without the attendance of the child if of sufficient age and if he wished to attend, and without the child being properly legally represented. It is true, as Mr Flood says, that this is not an application for a secure accommodation order, but the analogy is a very close one. Indeed, the only reason why a secure accommodation order is not being applied for is because an approved secure accommodation unit is not available. It seems to me, therefore, that the statutory safeguards within section 25 should not be outflanked or sidestepped simply because a local authority have been forced, due to lack of available resources, to apply for the exercise of the inherent jurisdiction of this court rather than the statutory order. ... I propose to order that the child now be joined as a party to these proceedings and Cafcass must forthwith allocate a guardian to act on his behalf. ... In my view it is very important that ordinarily in these situations, which in plain language involve a child being 'locked up', the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so." 2017‑10‑08 21:47:42 , Deprivation of liberty, ,

(1) MM wanted to be conditionally discharged into circumstances which would meet the objective component of deprivation of liberty. The Court of Appeal decided that: (a) the tribunal has no power to impose a condition that is an objective deprivation of liberty; (b) a general condition of compliance with a care plan would be an impermissible circumvention of this jurisdictional limitation; (c) purported consent, even if valid, could not provide the tribunal with jurisdiction. (2) PJ argued that his CTO should be discharged as it could not lawfully authorise his deprivation of liberty. The Court of Appeal decided that a CTO provides the power to provide for a lesser restriction of movement than detention in hospital which may nevertheless be an objective deprivation of liberty provided it is used for the specific purposes set out in the CTO scheme. 2017‑05‑07 23:52:25 , , Deprivation of liberty, , ,

— "By these proceedings, four English councils seek to challenge what they describe as the government's 'ongoing failure to provide full, or even adequate, funding for local authorities in England to implement the deprivation of liberty regime'. They suggest that the financial shortfall suffered by councils across the country generally is somewhere between one third of a billion pounds and two thirds of a billion pounds each year and claim that the Government must meet that shortfall. They seek a declaration that, by his failure to meet those costs, the Secretary of State for Health has created an unacceptable risk of illegality and is in breach of a policy known as the 'New Burdens Doctrine'. They seek a mandatory order requiring the Secretary of State of Health to remove the 'unacceptable risk of illegality' and to comply with that doctrine." 2017‑05‑06 23:09:09 , Deprivation of liberty, ,

— "This case relates to an elderly lady, NS. She has been represented by the Official Solicitor (OS) throughout these proceedings. ... The case therefore first came to court when the Trust sought to place NS in a residential facility after the hospital admission in May 2016. This was at a time when a stay in hospital was no longer required. The issue in the case was really whether NS should be discharged to a residential facility or to the care of MS with a care package. ... This case therefore involves consideration of a number of questions which I summarise as follows: (i) Is the patient incapable of making a decision regarding the particular issue put before the court? (ii) If so is the plan/treatment proposed in the best interests of the patient? (iii) Is the intervention necessary and proportionate pursuant to Article 8 of the ECHR? (iv) If the plan involves a deprivation of liberty under Article 5 of the ECHR should that be authorised by the court and if so under what terms regarding duration and review?" 2017‑02‑23 21:29:50 , Deprivation of liberty, , ,

— "The court considers that four questions need to be addressed in this [Northern Irish] case: (a) Does PT lack capacity? (b) Is there a gap in the existing legislation, thereby permitting the exercise of the inherent jurisdiction? (c) Is the care plan in PT’s ‘best interests’? (d) Is the care plan compliant with the ECHR? ... There is therefore no difference between the statutory test and the existing common law tests. Hence, in determining the capacity of PT in respect of welfare matters, the court can apply the test set out in the Mental Capacity Act 2005, even though that legislation does not apply in Northern Ireland, as it is in line with the existing common law tests. ... I find that PT lacks capacity to litigate, to make decisions about his care and residence and about whether to leave the home unescorted. ... Therefore, it is clear there is a lacuna or ‘gap’ in the 1986 Mental Health (NI) Order and as a result, a care plan which involves a deprivation of the liberty of a person subject to guardianship, cannot be sanctioned under the Mental Health (NI) Order 1986. Such deprivation of liberty can only be sanctioned by the High Court acting under its inherent jurisdiction. ... I find that continuous supervision by his foster mother JB and the locking of the external doors of the home and car doors whilst it is in motion are in his best interests as they protect his health and physical safety. The provisions also ensure he can continue to live with JB, with whom he has a special bond. For this reason I find that it is in his emotional best interests to remain in this placement. This can only happen if the proposed deprivation of liberty is permitted. ... Therefore, before the court exercises its inherent jurisdiction it must fully address the following questions, in order to be satisfied that any order it makes complies with the ECHR. (a) Is Article 5 is engaged? Does the care plan contain provisions which amount to a deprivation of liberty? (b) If so, are the provisions of Article 5 (1) (e) met? (c) If so, is the detention in accordance with the objective of Article 5 and is it in accordance with a procedure prescribed by law? (d) Is the proposed Order compliant with the provisions of Article 5 (4)? ... I also find that although this is a benign regime, in accordance with the definition set out in Cheshire West, PT’s care plan involves a deprivation of liberty because there is constant supervision and he is not free to leave the home as the external doors are locked and car doors are locked whilst he is present. ... I find that the provisions of Article 5 (1) (e) are met. There is objective medical evidence before the court indicating that PT is of unsound mind, this condition is persisting and is of a kind to warrant his compulsory confinement as PT needs supervision to prevent him causing harm to himself. ... I find that the care plan represents the minimum deprivation necessary to achieve the aim of Article 5, namely to 2017‑02‑23 21:22:02 , Deprivation of liberty, , ,

— "The essence of the claim under Article 5 is that the Claimant was unlawfully deprived of his liberty between the 1st of February 2011 and the 12th of August 2013, a period of some two and a half years. ... In the present case the extension period sought (18 months) represents an extension equal to the whole of the primary limitation period (12 months) and half as much again. ... For all these reasons I decline to grant the Claimant an extension of time under section 7 to bring his human rights claim against the Defendant." 2017‑02‑02 19:55:25 , Deprivation of liberty, , , ,

— "On 7 December 2013, Maria Ferreira, whom I shall call Maria and who had a severe mental impairment, died in an intensive care unit of King's College Hospital, London. The Senior Coroner for London Inner South, Mr Andrew Harris, is satisfied that there has to be an inquest into her death. By a written decision dated 23 January 2015, which is the subject of these judicial review proceedings, the coroner also decided that he did not need not to hold the inquest with a jury. ... A coroner is obliged to hold an inquest with a jury if a person dies in 'state detention' for the purposes of the . The appellant is Maria's sister, Luisa Ferreira, whom I will call Luisa. She contends that, as a result of her hospital treatment, Maria had at the date of her death been deprived of her liberty for the purposes of Article 5 of the European Convention on Human Rights and that accordingly Maria was in 'state detention' when she died. ... In my judgment, the coroner's decision was correct in law. Applying Strasbourg case law, Maria was not deprived of her liberty at the date of her death because she was being treated for a physical illness and her treatment was that which it appeared to all intents would have been administered to a person who did not have her mental impairment. She was physically restricted in her movements by her physical infirmities and by the treatment she received (which for example included sedation) but the root cause of any loss of liberty was her physical condition, not any restrictions imposed by the hospital. The relevant Strasbourg case law applying in this case is limited to that explaining the exception in Article 5(1)(e), on which the Supreme Court relied in , and accordingly this Court is not bound by that decision to apply the meaning of deprivation of liberty for which that decision is authority. If I am wrong on this point, I conclude that the second part of the 'acid test', namely that Maria was not free to leave, would not have been satisfied. Even if I am wrong on all these points, I would hold that as this is not a case in which Parliament requires the courts to apply the jurisprudence of the European Court of Human Rights when interpreting the words 'state detention' in the CJA 2009, and that a death in intensive care is not, in the absence of some special circumstance, a death in 'state detention' for the purposes of the CJA 2009. There is no Convention right to have an inquest held with a jury. There is no jurisprudence of the Strasbourg Court which concludes that medical treatment can constitute the deprivation of a person's liberty for Article 5 purposes. The view that it is a deprivation of liberty would appear to be unrealistic. We have moreover not been given any adequate policy reason why Parliament would have provided that the death of a person in intensive care of itself should result in an inquest with a 2017‑01‑26 15:20:11 , Deprivation of liberty, , , ,

— "The issue in this case is whether, in order for the United Kingdom to avoid being in breach of Article 5(1) of the European Convention on Human Rights, it is necessary for a welfare order to be made by the Court of Protection pursuant to the Mental Capacity Act 2005 in a case where an individual, who lacks the capacity to make decisions about where to live and the regime of care, treatment and support that he should receive, is to be given such care, treatment and support entirely by private sector providers in private accommodation in circumstances which, objectively, are a deprivation of his liberty within the meaning of Article 5(1) of the Convention." 2016‑12‑27 20:47:27 , Deprivation of liberty, , ,

— "Treacy J held that the supervision of this appellant was with legal authority and lawful and that the 1986 Order did authorise the guardian to take the impugned measures in the circumstances of this case. Subsequent to his decision the Supreme Court examined the concepts of deprivation of liberty and restriction of liberty in the case of patients suffering from mental health difficulties in . It is unnecessary for us to set out the facts or reasoning in that decision. It is, however, now accepted by the Trust that the guardianship order did not provide any mechanism for the imposition of any restriction on the entitlement of the appellant to leave the home at which he was residing for incidental social or other purposes. ... Mr Potter on behalf of the appellant in this case recognised that this left a lacuna in the law. That gap had been filled by Schedule 7 of the Mental Health Act 2007 in England and Wales which introduced deprivation of liberty legislation into the providing a mechanism for the lawful restriction on or deprivation of liberty of a person such as the appellant. It is clear that urgent consideration should now be given to the implementation of similar legislation in this jurisdiction." 2016‑11‑29 21:00:14 , Deprivation of liberty, , ,

— "The applications are brought to the court under the inherent jurisdiction of the High Court [in Northern Ireland]. The Trust sought a declaratory order in June to move NS from a hospital to a care home. This was opposed by MS who said that he could care for NS. However, the Trust and the Official Solicitor acting on behalf of NS felt that she would only receive the appropriate care and treatment befitting her needs in the care home. The test in relation to this has been set out by Mr Potter in a skeleton argument. He articulates this as a two-fold test, namely: (a) whether or not NS has the capacity to provide a legally valid consent to the proposed care and treatment; and (b) that the proposed care and treatment is necessary and in her best interests. The consideration of this case falls within the common law jurisdiction." 2016‑11‑29 20:45:51 , Deprivation of liberty, , ,

— "This is an application by P (the Applicant) acting through his litigation friend, the Official Solicitor, for an order under section 21A of the Mental Capacity Act 2005 (MCA) discharging the standard authorisation made on 24 June 2015 which authorises a deprivation of liberty in his current accommodation (the placement)." 2016‑11‑24 23:48:11 , Deprivation of liberty, ,

— "This appeal is brought with the permission of the First-tier Tribunal against the decision of that tribunal refusing to discharge the patient from guardianship. She was first received into guardianship on 8 January 2013 and the Court of Protection first made a Standard Authorisation on 14 February 2015. The essence of the case before both the First-tier Tribunal and the Upper Tribunal is that the former was no longer necessary in view of the latter." 2016‑11‑12 00:00:27 , Deprivation of liberty, , ,

— "This case concerns an individual SRK who was severely injured in a road traffic accident. The effects of those injuries are that (a) he lacks capacity to make decisions on the regime of care, treatment and support that he should receive (SRK's care regime), and (b) applying the approach in Cheshire West (see Surrey County Council v P and others; Cheshire West and Chester Council v P and another">[2014] UKSC 19,">[2014] AC 896), SRK's care regime creates, on an objective assessment, a deprivation of liberty. SRK was awarded substantial damages that were paid to his property and affairs deputy (the third Respondent IMTC). He lives at a property that has been bought and adapted for him. His regime of care and support there is provided by private sector providers. The damages funded that purchase and adaptation and fund that regime of care. The issue is whether this situation on the ground is a deprivation of liberty that has to be authorised by the Court of Protection (the COP) by it making a welfare order. The test that the COP would apply in making such an order is whether SRK's care regime is the least restrictive available option to best promote his best interests. The same test applies to the decision makers on the ground. It is common ground that at present SRK's care regime satisfies that test." 2016‑09‑25 21:18:42 , Deprivation of liberty, ,

— "These five cases are examples of cases in which the procedure to be adopted by the Court of Protection (COP) was left open in my judgment in . That judgment contains the references to the decision of the Supreme Court in and of the President and the Court of Appeal in , which are the essential background to NRA. In short, the five cases were chosen as cases in which it was thought that there was no family member or friend who could be appointed as a Rule 3A representative. That is no longer the position in VE and my reference to the test cases in this judgment are to the remaining four." 2016‑08‑31 20:40:27 , Deprivation of liberty, , ,

— "I have had little difficulty in reaching the conclusion that the applications for permission should be granted and the appeals allowed. ... This appears to be a case in which DJ Glentworth uncharacteristically appears to have allowed her understandable concern about MAG's living circumstances, and her palpable frustration at what she saw as NYCC's tardiness in resolving his accommodation issues, to distract her from following a clear path to outcome. The result is one which I consider is unsupportable, and wrong. Picking six key themes from the arguments, I divide my discussion of the judgment into the following sub-headings: (i) Did the judge ask herself the correct question(s)? (ii) The effect of Re MN on these facts; (iii) Has there has been a breach of Article 5? (iv) Taking a decision which MAG could not take for himself; (v) No alternative option; impermissible pressure; (vi) The factual findings." 2016‑08‑29 19:29:12 , Deprivation of liberty, ,

— "This is the final hearing of the care proceedings brought by Thurrock Borough Council in relation to Daniel X, a boy of 10. ... It is also the final hearing of the application by Thurrock Borough Council for me to authorise them to deprive Daniel of his liberty by accommodating him in Y Home. ... The outstanding issue is that of Daniel's liberty, and there is a great deal of consensus on this point too. However, it has been agreed at the bar that it would be helpful if I set out the position in law and how I consider the law applies to Daniel." 2016‑05‑13 21:33:48 , Deprivation of liberty, ,

— "This judgment considers the exercise of the court's powers under the inherent jurisdiction to recognise and enforce orders concerning the medical treatment of children made by courts of another member state of the European Union. On 4 March 2016, I made an interim order in respect of a girl, Z, who lives in the Republic of Ireland, declaring that orders made by the High Court of Ireland on 2 March 2016 should stand as orders of this court, thereby permitting emergency admission for treatment in a hospital in this country. At a hearing on is notice on 23rd March, I made a further interim order to that effect. This judgment set out the reasons for those orders." 2016‑04‑08 20:38:22 , Deprivation of liberty, ,

— This judgment dealt with various issues including deputyship, deprivation of liberty, and disclosure. 2016‑02‑08 20:08:33 , Deprivation of liberty, , ,

(1) A parent cannot consent to the confinement (i.e. the objective element of deprivation of liberty) of a child who has attained the age of 16. (2) The confinement was imputable to the state despite the accommodation being provided under s20 , as the local authority had taken a central role; in any event, even if D's confinement were a purely private affair the state would have a positive obligation under Article 5(1) to protect him. (3) The judge did not resile from his previous judgment that D's parents could consent to his confinement in hospital when he was under 16. 2016‑01‑31 23:02:21 , , Deprivation of liberty, ,

— "What I intend to do in it is to set out the history of the case and then of the litigation. Then I will deal with the factual issues upon which I have been asked by the local authority to make findings. I will then deal with the central issue in the case, that of where in her best interests should (P), the subject of this application, live. Next I will consider the conduct of the local authority and make findings on the issues as to whether P had been wrongly deprived of her liberty and, if she had, how long did that go on for; and finally what, if any, lessons can be learned from this case. ... These findings illustrate a blatant disregard of the process of the MCA and a failure to respect the rights of both P and her family under the ECHR. In fact it seems to me that it is worse than that, because here the workers on the ground did not just disregard the process of the MCA they did not know what the process was and no one higher up the structure seems to have advised them correctly about it." 2015‑12‑22 22:22:55 , , Deprivation of liberty, ,

— "Must an adult who is the subject of an application under Schedule 3 to the Mental Capacity Act 2005 to recognise and enforce an order of a foreign court that deprives the adult of his or her liberty be joined as a party to the application?" 2015‑12‑21 23:58:58 , Deprivation of liberty, , ,

— "In this case I have to decide (i) whether the package of care provided to BS ('Ben') is in his best interests; (ii) whether that package amounts to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights 1950; and (iii) what contact Ben should have to his mother, the first respondent. ... In the circumstances, in what I suppose will be one of the last orders of its kind to be made, I directed that Ben be discharged as a party. I was wholly satisfied that his voice has been fully heard through the IMCA Katie Turner. Further, in relation to the question of deprivation of liberty, all relevant submissions have been fully put on both sides of the argument by counsel for the applicant and the first respondent. There was no dispute between the applicant and the first respondent concerning issues (i) and (iii). The argument was centrally about the question of deprivation of liberty. ... I cannot say that I know that Ben is being detained by the state when I look at his position. Far from it. I agree with Mr Mullins that he is not. First, he is not under continuous supervision. He is afforded appreciable privacy. Second, he is free to leave. Were he to do so his carers would seek to persuade him to return but such persuasion would not cross the line into coercion. The deprivation of liberty line would only be crossed if and when the police exercised powers under the Mental Health Act. Were that to happen then a range of reviews and safeguards would become operative. But up to that point Ben is a free man. In my judgment, on the specific facts in play here, the acid test is not met. Ben is not living in a cage, gilded or otherwise. ... I do not criticise this local authority in the slightest for bringing this case. In the light of the decision of the Supreme Court local authorities have to err on the side of caution and bring every case, however borderline, before the court. For if they do not, and a case is later found to be one of deprivation of liberty, there may be heavy damages claims (and lawyers' costs) to pay. I remain of the view that the matter needs to be urgently reconsidered by the Supreme Court." 2015‑12‑21 23:10:54 , Deprivation of liberty, ,

(1) For the purposes of , a restricted patient with the capacity to do so can give a valid and effective consent to conditions of a conditional discharge that when implemented will, on an objective assessment, create a deprivation of liberty. (2) In determining whether to discharge conditionally, the tribunal has to consider whether the consent is freely given and (as raised in at [134-139]) consider any practical problems arising from the ability to withdraw consent. (3) MM's case was remitted to the First-tier Tribunal with a direction that it apply the decisions in KC and this case. (Caution: see Court of Appeal decision.) 2015‑11‑26 20:58:29 , , Deprivation of liberty, , , ,

— "I conclude that: (a) AB lacks capacity to conduct these proceedings herself. (b) AB lacks capacity to make her own decisions about whether to consent to medical treatment for her cardiac condition including dental surgery. (c) Insofar as the jurisdiction of the court is excluded because of the operation of the MHA and MCA, the inherent jurisdiction should be exercised to grant a declaration that it is lawful and in AB's interests to have the proposed medical treatment administered by the Applicant to her. (d) The inherent jurisdiction should be exercised to grant a declaration that it is lawful and in her best interests for AB to be deprived of her liberty to travel to and to remain at the hospital for the proposed medical treatment but that such physical and/or chemical restraint as may be required to deliver the treatment shall bear in mind the need to maintain her dignity to the maximum extent reasonably possible." (Caution: in relation to paragraph [54], on the MCA eligibility test, see .) 2015‑11‑13 23:00:17 , , Deprivation of liberty, ,

CD was willing to have the total abdominal hysterectomy, in order to remove two very large ovarian growths, which the medical experts recommended. (1) Mostyn J held that she lacked capacity in relation to this but that it was in her best interests to have the surgery. (2) The correct way to interpret the MCA ineligibity rules is as follows: "if the MHA regime whereby CD is compulsorily detained in a mental hospital imposes a specific requirement for dealing with the problem of the ovarian masses then CD is ineligible to be deprived of her liberty under the 2005 Act for the purposes of dealing with the problem by a different procedure under that Act. It doesn't (obviously) so she isn't ineligible." (3) In relation to deprivation of liberty the judge noted: "In KW & Ors v Rochdale Metropolitan Borough Council">[2015] EWCA Civ 1054 at para 32 the Court of Appeal stated 'even if Cheshire West is wrong, there is nothing confusing about it'. It may seem that way from the lofty heights of the Court of Appeal; and of course the literal words of the Supreme Court's test are perfectly easy to understand. But for we hoplites who have to administer it at first instance the scope and ramifications of the test are, with respect, extremely confusing. As Mr Matthewson, instructed by the Official Solicitor for CD, rightly stated 'anyone who deals with this day by day knows this is confusing'. What of the situation where, as here, the protected person actively and fervently expresses the wish to undergo the procedure that is said to amount to a deprivation of liberty? What of the situation, as was the case in , where the protected person shows no inclination whatsoever to leave the home where he is cared for round the clock? What of the situation where the protected person is seriously disabled, perhaps bedridden, perhaps in a coma, and is thus physically incapable of exercising the freedom to leave? The answers I received from the Bar when discussing these scenarios belie the blithe suggestion that 'there is nothing confusing' about the test. I do not accept the criticism that my approach to these cases is 'distorted' by my 'passionate' and 'tenacious' belief that Cheshire West is wrong. Rather, it is a loyal approach which tries to apply literally and purposively the Supreme Court's test while at the same time pointing out how confusing and curious it is, to say nothing of the cost it causes to the public purse. The confusion surrounding the main test is mirrored by the confusion that the interface with the MHA gives rise to." 2015‑11‑13 22:53:01 , , , Deprivation of liberty,

A patient detained under was not ineligible to be deprived of his liberty in a general hospital under the MCA 2005 for the purpose of physical treatment (and the previous case on this point, , should be read as if the judge accidentally omitted a negative and inadvertently and mistakenly stated the law wrongly). 2015‑11‑12 18:42:52 , , Deprivation of liberty,

— "DW objects to the deprivation of liberty and made the application to the Court of Protection on 5th December 2014 pursuant to Section 21A of the Mental Capacity Act 2005 to challenge the purpose of the standard authorisation. The application was made on the following grounds: (a) LCC failed to make an application to the Court of Protection (despite the recommendations of the Ombudsman). (b) LCC failed to take reasonable steps to plan a move for KW to a more suitable placement, closer to her family and KW has suffered distress as a result. (c) It is not in KW's best interests to be deprived of her liberty at R H therefore one of the qualifying requirements of Schedule 1A is not satisfied." 2015‑10‑31 21:03:27 , Deprivation of liberty, ,

— "The issues for me to determine are these: (i) Was P's detention at the care home between 5 September 2014 and 23 December 2014 lawful or was it in breach of Article 5 and/or Article 8? (ii) If P's detention during that period was unlawful or in breach of Article 5, does a right to compensation or damages arise and, if so, how much? No claim for compensation or damages is in fact pursued. (iii) Was P's detention at the care home between 23 December 2014 and the date of cessation of detention lawful pursuant to a properly-made standard authorisation? If not, was it in breach of his Article 5 and/or Article 8 rights? (iv) Does a right to compensation or damages arise and, if so, how much? No claim for compensation or damages is in fact pursued." 2015‑10‑31 20:54:14 , Deprivation of liberty, ,

— "In my judgment it is clear that the restrictions imposed by reg. 5(2) on making a secure accommodation order under s.25 in respect of a child over the age of 16 are limited to children who are accommodated as a matter of discretion under s.20(5) and do not extend to children who are accommodated as a matter of duty under s.20(3). Where a looked-after child aged between 16 and 18 is accommodated under s.20(3) of the the court has the power to make her the subject of a secure accommodation order under s.25. It follows, therefore, that in this circumstances of this case it is appropriate that the local authority's application for a secure accommodation order be adjourned generally with liberty to restore should circumstances arise in which it considers it appropriate to do so." 2015‑10‑30 22:58:10 , Deprivation of liberty, ,

— "There is a large measure of agreement between the parties on the relevant factual matrix and the legal principles applicable to the issues I am asked to determine, namely: (1) Whether AB is deprived of his liberty at X. (2) If so, are the parents and/or the local authority entitled to consent to the same? (3) If not, whether the court will sanction the deprivation of liberty and, if so, under what provision, power or jurisdiction? (4) Whether it would be appropriate to give guidance on the approach to, and conduct of, similar cases." 2015‑10‑30 22:39:14 , Deprivation of liberty, ,

(1) The judge (in his second decision) had misinterpreted the consent order (on appeal from his first decision) when he said that the Court of Appeal had not decided that KW was being deprived of her liberty. Therefore, this second appeal would be allowed. (2) The judge was also wrong to say that the Court of Appeal had taken "a procedurally impermissible route" so that its decision was "ultra vires". An order of any court is binding until it is set aside or varied: it is futile and inappropriate for a judge to seek to undermine a binding order by complaining that it was ultra vires or wrong for any other reason. In any event, the consent order was made by a procedurally permissible route: the appeal court has a discretion to allow an appeal by consent on the papers without determining the merits at a hearing if it is satisfied that there are good and sufficient reasons for doing so. If the appeal court is satisfied that (i) the parties' consent to the allowing of the appeal is based on apparently competent legal advice, and (ii) the parties advance plausible reasons to show that the decision of the lower court was wrong, it is likely to make an order allowing the appeal on the papers and without determining the merits. (3) The Court of Appeal stated that the judge's disagreement with the Cheshire West decision was in danger of distorting his approach to these cases and, in light of the two successful appeals, the review should be conducted by a different judge. 2015‑10‑23 22:29:42 , Deprivation of liberty, ,

The Council sought a declaration that it was in MAG's best interests (a) to be deprived of his liberty and reside in his current placement, and (b) for the Corporate Director of Health and Adult services to enter into a tenancy agreement on MAG's behalf in relation to the current placement. (1) The reference in to the ability of the Court of Protection to explore the care plan put forward by a public authority and the inability of the Court to compel a public authority to agree to a care plan which it is not willing to implement does not apply when the issue is the right to liberty under . (2) The placement at which MAG had been deprived of his liberty for 9 years did not meet his needs (for instance, there was insufficient room to manoeuvre a wheelchair indoors, so he had to mobilise on his hands and knees causing physical problems including bursitis and a recurring fungal infection in his thigh) and the council had not taken the steps necessary to ensure that there was no breach of its obligations. The court therefore refused to continue an interim deprivation of liberty authorisation. [Caution: see subsequent Court of Appeal decision.] 2015‑10‑07 22:50:30 , , Deprivation of liberty,

— "I have ten cases before me seeking welfare orders under s. 16(2)(a) of the Mental Capacity Act 2005 (the MCA). The welfare orders are sought to authorise the deprivation of liberty that, it is common ground, is being, or will be, created by the implementation of the regime of care, supervision, control and support (the care package) upon which the welfare orders are based. If it had been thought that the care packages did not result in a deprivation of liberty it is highly likely that the relevant public authorities would have relied on s. 5 of the MCA and no application to the Court of Protection would have been made. When the cases were transferred to me they were regarded as test cases on the directions that should be given for their determination and in particular on whether the subject of the proceedings (P) should be a party." 2015‑09‑30 20:53:15 , Deprivation of liberty, ,

(1) A conditional discharge may include conditions which will, on an objective assessment, give rise to a deprivation of liberty, if that deprivation of liberty is authorised under the MCA. (2) (Obiter) The same conditions would be lawful for a patient with capacity who gives real consent since this would mean there is no Article 5 deprivation of liberty. 2015‑07‑15 22:54:29 , , Deprivation of liberty, ,

Nine cases which had been issued under the Re X streamlined procedure were listed for directions before DJ Marin. (1) One case (ML) would require a best interests hearing so never really belonged in the Re X procedure, but orders under the Re X procedure would or would potentially have been made in the other cases. (2) The Court of Appeal in Re X had (obiter, and without referring to new rule 3A) decided that P should be a party in every deprivation of liberty case. (3) Party status would entail the need for a litigation friend but, except for an IMCA in one case (MOD), no-one suitable had been identified: (a) in most of these cases, the family may be said to have an adverse interest to the person concerned; (b) there must be a question in every case as to whether family members have the required expertise; (c) the Official Solicitor refused to act as his COP Health & Welfare team was already "fire-fighting" at an unsustainable level owing to budgetary constraints; (d) IMCAs in one borough refused to act without indemnity insurance, which it was hoped would be in place by the end of 2016. (4) The result was that none of these cases could proceed, and neither could hundreds and potentially thousands of others: the judge said he "cannot think of a more serious situation to have faced a court in recent legal history". (5) These cases were transferred to the Vice President of the COP (Charles J) to decide on the following issues: (a) whether P must be joined as a party in a case involving deprivation of liberty; (b) whether the appointment of a rule 3A representative is sufficient in a case involving deprivation of liberty; (c) if P must be joined as a party, in the absence of any suitable person to act as litigation friend, what should be done in circumstances where the Official Solicitor cannot accept an invitation to act; (d) whether a family member can act as litigation friend in circumstances where that family member has an interest in the outcome of the proceedings; (e) whether other deprivation of liberty cases not before the court on this occasion but which raise similar issues to this case should be stayed pending a determination of the issues recorded at paragraphs (a) to (d). (6) The Official Solicitor was ordered to file and serve a statement which would: (a) provide a full and evidence-based explanation of why he cannot cope with the number of deprivation of liberty applications in which he is invited to act as litigation friend; (b) explain in full detail providing evidence where appropriate as to which areas or processes cause him difficulty and why; (c) inform the court when he expects to be able to cope with deprivation of liberty cases and the likely time scale in which he can start work on a case; (d) provide any other information to the court what will assist the court to make decisions in this case regarding the position of the Official Solicitor. (7) The court refused to approve deprivations of liberty on an interim basis 2015‑07‑12 21:32:07 , , Deprivation of liberty,

This case concerned the hearings arranged by Munby LJ, the President of the Court of Protection, in relation to devising a streamlined and minimally Article 5 compliant process for the anticipated higher numbers of court applications following Cheshire West. (1) Whether the Court of Appeal has jurisdiction to hear an appeal from the Court of Protection depends on whether there was a "decision" (), which must mean a decision determining an issue arising between parties (involving or about the person concerned) rather than decision made on a hypothetical basis. (2) The President's judgments contained no appealable "decision" as the relevant issues had not arisen in the appellants' cases. (2) (Obiter) In theory the person concerned need not always be a party to deprivation of liberty proceedings if his participation can reliably be secured by other means, but given the tools presently available in our domestic procedural law, the person concerned must always be a party, so the streamlined "Re X" procedure was not compliant with . (Detailed summary on case page.) 2015‑06‑17 19:08:12 , Deprivation of liberty, ,

— "Permission to bring this appeal was granted by the First-tier Tribunal (the FTT) because in the view of the judge it raises points upon which guidance is needed. Those points concern the relationship between the functions and powers of the FTT under the Mental Health Act 1983 (the MHA) and those of the Court of Protection, managing authorities and supervisory bodies under the Mental Capacity Act 2005 (the MCA) and its Deprivation of Liberty Safeguards (DOLS). The most relevant provisions of the MHA in this case are those relating to guardianship." This judgment includes guidance under the headings "The approach to be taken by the parties and the FTT on an application to discharge a guardianship under s. 72 of the MHA on the basis that an alternative has the consequence that the guardianship is no longer necessary as it is not the least restrictive way of achieving what is in the patient’s best interests" and "A check list for FTT’s when an issue involving an argument that an alternative involving the application of the MCA is said to be the basis for a discharge of guardianship". 2015‑06‑08 21:43:37 , , Deprivation of liberty, ,

— "This hearing concerns a 93-year old lady with a diagnosis of severe dementia, Alzheimer's disease. She lives in her own home, with care and safety arrangements set up for her between her adult daughters and the Local Authority. This simple scenario raises the following issues: (a) whether the care arrangements for the lady (Mrs L) constitute a deprivation of her liberty; (b) if so, then whether the State is responsible for such deprivation of liberty; and (c) if so, then whether such deprivation of liberty should be authorised by the court and what the arrangements for continuing authorisation should be." 2015‑04‑16 10:57:25 , Deprivation of liberty, ,

NM was subject to both guardianship and a DOLS authorisation. His residence at a particular home was enforced and he was escorted while on leave. The First-tier tribunal decided that he "had the capacity to decide where to live but not the capacity to decide on the supervision that was required to keep him and any child he came into contact with safe", and that he would not remain in the home without being subject to the guardianship; it refused to discharge him. (1) An ideal set of reasons would identify the relevant legal differences between guardianship and DOLS and include findings of fact sufficient to show their significance to the legal criteria set out in (4). (2) Upper Tribunal Judge Jacobs accepted the council's position that the differences include: DOLS assumes that the person lacks capacity to make the relevant decisions in their best interests; DOLS cannot impose a requirement that the person reside at a particular address, whereas a guardian can; and DOLS cannot authorise anyone to give, or consent to, treatment for someone with a mental disorder. He also said that a limitation inherent in the DOLS regime was that, while it could prevent NM from leaving, it could not deal with the possibility that he may abscond. (3) In some (other) cases guardianship may not be necessary for the purposes of s72(4)(b) as DOLS may provide sufficiently for the person’s welfare and the protection of others. (4) The First-tier Tribunal's reasons on the statutory criteria (the key being that NM would not remain at the home without guardianship) and the relationship with DOLS (concerning return following absconsion) were in substance adequate to explain and justify its decision. 2015‑04‑10 20:09:05 , , Deprivation of liberty, ,

— "I am satisfied that the circumstances in which D is accommodated would amount to a deprivation of liberty but for his parents' consent to his placement there. I am satisfied that, on the particular facts of this case, the consent of D's parents to his placement at Hospital B, with all of the restrictions placed upon his life there, falls within the 'zone of parental responsibility'. In the exercise of their parental responsibility for D, I am satisfied they have and are able to consent to his placement. In the case of a young person under the age of 16, the court may, in the exercise of the inherent jurisdiction, authorise a deprivation of liberty." 2015‑03‑31 22:47:22 , Deprivation of liberty, ,

(1) The Court of Appeal's decision to allow an appeal against the judge's earlier decision (that KW was not being deprived of her liberty at home) by consent, and without an oral hearing or judgment, was procedurally impermissible. (2) Although the Court of Appeal had set aside the decision, it had not actually declared that KW was deprived of her liberty: therefore, her status will be in limbo until the judge decides the matter at an oral 12-month review hearing. (3) The provisions for a review on the care plan becoming more restrictive would only be triggered if the changes amount to bodily restraint comparable to that which obtained in , as any restrictions short of that would amount to no more than arrangements for her care in her own home and would not amount to state detention. (4) The judge concluded that: "In this difficult and sensitive area, where people are being looked after in their own homes at the state's expense, the law is now in a state of serious confusion." 2015‑03‑24 20:09:36 , , Deprivation of liberty,

— "There are before the court: (1) Sitting as the Court of Appeal Criminal Division six cases where indeterminate sentences (either imprisonment for public protection (IPP) or a life sentence) had been passed between 1997 and 2008. Each specified a minimum term. In each case there was psychiatric evidence before the court with a view to a judge considering making a hospital order under as amended with a restriction under of the same Act. The sentencing judge did not make such an order, but each was subsequently transferred to hospital under a transfer direction made by the Secretary of State under . (2) Sitting as the Court of Appeal Civil Division, a civil appeal in relation to a judicial review brought by the first of the appellants in the criminal appeals of the actions of the Secretary of State for Justice and the Parole Board relating to delay in the determination of her application for release from custody." In relation to the criminal aspect: in cases where medical evidence suggests mental disorder, the offending is partly or wholly attributable to that disorder, treatment is available and a hospital order may be appropriate, the court should consider (and, if appropriate, make) a order before considering making a hospital order. 2015‑02‑12 23:21:36 , Deprivation of liberty, , , , ,

— "This case raises a number of issues about the provisions of the Mental Capacity Act 2005, and in particular the amendments that were introduced into that Act by the Mental Health Act 2007 concerning the procedures to be followed in cases of deprivation of liberty. The provisions under consideration include the selection and appointment of relevant person's representatives under Part 10 of Schedule A1 and independent mental capacity advocates under s.39D which have not, so far as I am aware, been considered in any previous judgment. More fundamentally, the case addresses the question of the extent of the duty on a local authority to ensure that a person who lacks capacity is able to challenge a deprivation of their liberty." 2015‑02‑12 22:48:15 , Deprivation of liberty, ,

(1) A final declaration was made that P lacked capacity to make decisions in relation to his residence and care arrangements, but retained capacity to make decisions in relation to contact with others. (2) In considering quantum for unlawful detention there is a difference between procedural breaches (which would have made no difference to P's living or care arrangements) and substantive breaches (where P would not have been detained if the authority had acted lawfully). (3) The judge approved the following compromise agreement: (a) a declaration that ECC unlawfully deprived P of his liberty for approximately 13 months; (b) £60,000 damages; (c) care home fees to be waived (around £23-25,000); (d) damages to be excluded from means testing for community care costs; (e) costs to be paid (may exceed £64,000). (4) The judge described the situation as follows: "It is hard to imagine a more depressing and inexcusable state of affairs. A defenceless 91 year old gentleman in the final years of his life was removed from his home of 50 years and detained in a locked dementia unit against his wishes. Had it not been for the alarm raised by his friend RF he may have been condemned to remain there for the remainder of his days. There can be no doubt that ECC's practice was substandard. They failed to recognise the weakness of their own case and the strength of the case against them. They appeared unprepared to countenance any view contrary to their own. They maintained their resolute opposition to P returning to his home until the last possible moment. In my judgment the conduct of ECC has been reprehensible. The very sad and disturbing consequences for P cannot be ignored." 2015‑01‑21 21:48:32 , , Deprivation of liberty,

— Detention in psychiatric hospital breached (1) and (4). 2014‑12‑31 20:33:35 , Deprivation of liberty, , ,

— "All parties are agreed that TB lacks capacity to make decisions concerning her residence, her care and her contact with SA. The issues that I have to decide are these: (i) Where should TB live in her best interests? ... (ii) If TB does not return to 9 Emerald Mansions what should her contact be with SA, in her best interests? (iii) Does SA have the capacity to consent to sex? This is an abstract question if she does not return to 9 Emerald Mansions, but a very real one if she does. (iv) Whatever I decide about residence does her care regime amount to a deprivation of liberty within the terms of ?" 2014‑12‑31 10:58:36 , , , Deprivation of liberty, ,

— "I very respectfully do not agree with the reasoning in paragraph 6 of the guidance [which was issued jointly by the Ofsted and the President of the Court of Protection on 12/2/14]. There is nothing in either the legislation, or the regulations, or the [National Minimum Standards for Children's Homes] which has the effect that a children's home, which is not an approved secure children's home, is 'unable' to deprive a person of his liberty. ... The NMS 3.19 and 12.7 themselves state that 'No children's home/school ... restricts the liberty of any child as a matter of routine...' Whilst never a matter of routine, those very standards clearly contemplate that a home or school may have to restrict liberty as a matter of non-routine. Such restraint may involve a deprivation of liberty as now understood and, in my view, the unqualified proposition in paragraph 4 of the guidance that there is no purpose to be served in seeking an order of the Court of Protection goes too far. So, accordingly, does the proposition in paragraph 6 and the summary in paragraph 13 of the guidance. In my view, there can indeed be circumstances in which the Court of Protection may authorise a children's home or residential special school to impose restraint which amounts to a deprivation of liberty, and the guidance is mistaken in suggesting that the effect of the NMS is necessarily to prevent the court from doing so." 2014‑12‑30 23:26:14 , Deprivation of liberty, ,

— The judge in this case decided that KW was not deprived of her liberty, stating as follows: "I am of the view that for the plenitude of cases such as this, where a person, often elderly, who is both physically and mentally disabled to a severe extent, is being looked after in her own home, and where the arrangements happen to be made, and paid for, by a local authority, rather than by the person's own family and paid for from her own funds, or from funds provided by members of her family, Article 5 is simply not engaged. I am of the view that the matter should be reconsidered by the Supreme Court." Permission to appeal to the Court of Appeal was granted, and an appeal against the decision was allowed by consent. 2014‑12‑30 23:10:02 , Deprivation of liberty, ,

— "X is a retired lawyer who has suffered, or appears to have suffered, from Korsakoff's syndrome, a mental illness related to the over-consumption of alcohol. ... An urgent authorisation was obtained on 1st May and a standard authorisation to detain him on 13th May. ... X appealed that standard authorisation, hence the case being listed before me in late May. ... X now has capacity to make decisions as to residence, care and medical treatment and that has been amply demonstrated in the case. Even if he has other problems he can reflect and logically reason, and is much improved from the man he was last December. That does not mean he will not relapse. It does not mean that he will not be foolish enough to resume drinking but, in my judgment, in all the circumstances it would be inappropriate to make a declaration under section 48 and in those circumstances, in the absence of a standard authorisation, his compulsory detention comes to an end." 2014‑12‑30 21:21:26 , Deprivation of liberty, ,

— Involuntary psychiatric hospital admission breached (1) and (4) in this case. 2014‑12‑30 20:51:25 , Deprivation of liberty, , ,

The patient was deprived of his liberty and appealed against the tribunal's refusal to exercise its discretion to discharge him from guardianship. (1) Upper Tribunal Judge Jacobs stated that the cause of deprivation of liberty was the care plan, not the guardianship, adding in relation to guardianship powers generally: "I find it difficult to imagine a case that could realistically arise in which those basic powers could be used in a way that would satisfy the conditions for deprivation of liberty." (2) He dismissed the appeal on the ground that the guardianship did not give rise to a deprivation of liberty and the tribunal was not obliged to exercise its discretion to discharge the patient. (3) The approach to discretionary discharge in the GA case (relating to CTOs) was equally relevant to guardianship or detention: "it is difficult to imagine a case in which the tribunal could properly exercise its discretion to discharge without there being appropriate safeguards to ensure the necessary treatment and protection." (4) That the burden of proof in guardianship cases remained with the patient (in contrast with detention cases) was not a drafting oversight but a further indication that guardianship is not designed to involve a deprivation of liberty. (5) The tribunal had not misplaced the burden of proof (or given any directions on the legal burden). In assessing arguments on this issue it is important to distinguish between the legal burden and the evidential burden. (6) Tribunals are entitled to require the parties to satisfy them by evidence and argument that concessions (on matters of fact or law) are sound and, if they fail to do so, tribunals are not obliged to accept them. 2014‑11‑04 22:44:48 , Deprivation of liberty, , , ,

— "I need now to supplement and elaborate what I said in my previous judgment in relation to Questions (7), (9) and (16). For ease of reference I set out those questions again: '(7) Does P need to be joined to any application to the court seeking authorisation of a deprivation of liberty in order to meet the requirements of Article 5(1) ECHR or Article 6 or both? (9) If so, should there be a requirement that P … must have a litigation friend (whether by reference to the requirements of Article 5 ECHR and/or by reference to the requirements of Article 6 ECHR)? (16) If P or the detained resident requires a litigation friend, then: (a) Can a litigation friend who does not otherwise have the right to conduct litigation or provide advocacy services provide those services, in other words without instructing legal representatives, by virtue of their acting as litigation friend and without being authorised by the court under the Legal Services Act 2007 to do either or both …?' These questions require consideration of a number of issues which I take in order, formulating each of these issues in the form of a question. ..." 2014‑10‑16 21:29:14 , Deprivation of liberty, ,

— "The immediate objective, in my judgment, is to devise, if this is feasible, a standardised, and so far as possible 'streamlined', process, compatible with all the requirements of Article 5, which will enable the Court of Protection to deal with all DoL cases in a timely but just and fair way. The process needs, if this is feasible, to distinguish between those DoL cases that can properly be dealt with on the papers, and without an oral hearing, and those that require an oral hearing. In my judgment, that objective is feasible and can be achieved. ... This is a preliminary judgment, setting out briefly my answers to those of the 25 questions which require an early decision if the objective I have identified is to be carried forward. It concentrates on the issues directly relevant to what I will call the 'streamlined' process. It sets out no more than the broad framework of what, in my judgment, is required to ensure that the 'streamlined' process is Article 5 compliant. Additional, detailed, work needs to be carried out as soon as possible by the Court of Protection in conjunction, where appropriate, with the [rules] Committee. A further judgment will follow in due course, elaborating on my reasons for deciding as I have and dealing with the questions ... not dealt with in this judgment." 2014‑08‑07 14:02:46 , Deprivation of liberty,

— "The proceedings were launched by AF, UF's youngest daughter, in August 2013 as a challenge under section 21A MCA 2005 to the standard authorisation of deprivation of liberty. The remit of my enquiry at this hearing was defined by order of Charles J in May 2014, thus: (i) Is it in UF's best interests to return to her home to live with a contingency plan of maintaining her current placement for a period of time? (ii) Should direction be given to the LPA finance about releasing equity from UF's property to pay for her care? (iii) Should the LPA finance be replaced by a Deputy appointed by the Court? (iv) Would any care regime at home still represent a deprivation of liberty?" 2014‑08‑01 16:01:02 , Deprivation of liberty, ,

— "The issue is whether PB has capacity to decide whether to live with TB, what contact to have with him, and what her care arrangements should be (that issue, it is common ground, includes where she is to live); and, if she is to be accommodated in local authority care, whether she is deprived of her liberty and if so whether this should be authorised by the Court. There is an interim declaration to that effect." The judge comments on the capacity test (causative nexus), the inherent jurisdiction, and case management in the Court of Protection. 2014‑08‑01 11:56:35 , , , Deprivation of liberty,

— "This case raises the following question: Does the Court of Protection have power to make an order which authorises that a person who is not a child (ie who has attained the age of 18) may be deprived of his liberty in premises which are a children's home as defined in section 1(2) of the Care Standards Act 2000 and are subject to the Children's Homes Regulations 2001 (as amended)? Both parties and their counsel in these proceedings submit that the answer is 'yes'. I agree with them that the answer is 'yes'." 2014‑08‑01 10:57:17 , , Deprivation of liberty,

— "In the light of authority, Mr Southey accepts that he cannot submit as a matter of principle that the system by which the Claimant's release was considered by two successive bodies, the Tribunal and the Parole Board, is in conflict with the Claimant's Article 5(4) rights. ... He goes on to argue that, on the facts as they are here, if there were to be two hearings before two bodies, the state had a legal obligation to ensure expedition throughout the overall process. He says there was no such expedition, since the review of the legality of the Claimant's detention took almost 22 months from the date when the Claimant applied to the Tribunal on 24 May 2011 to the decision of the Parole Board on 21 March 2013. Within that period, Mr Southey makes a series of specific complaints as to periods of delay. ... The claim for judicial review is dismissed as against both Defendants. ... Although it took a considerable time to be resolved, there was in my view no breach of the obligation on the part of the State to provide a 'speedy' resolution." 2014‑05‑18 01:11:22 , Deprivation of liberty, ,

— "The Applicants seek declarations that: (i) ML lacks capacity to litigate and/or to make decisions about his care and /or residence; (ii) it would be in ML's best interest to reside at Bestwood Hospital; (iii) it would be in ML's best interest to undergo treatment at Bestwood Hospital until such time as he is able to be discharged to a suitable assisted living package in the community. Behind these deceptively simple draft declarations is a history of professional and family conflict which has frequently been bitter and occasionally rancorous (amongst the professionals). It is a case which has engendered many high emotions in people who feel strongly about the important nature of the work they are involved in and who are very highly motivated to achieve the best outcomes for ML. Some, though certainly not all, witnesses have overstated their cases, been selective in their use of material, emotive in their use of language, disrespectful to those who hold contrary views. In consequence, despite their laudable objectives, they have made it difficult for me, at times, to get a clear picture of how ML functions and how his needs might best be met." 2014‑05‑18 00:25:31 , , Deprivation of liberty, ,

— Having described the council's conduct as "woefully inadequate from the start" the judge declared that there had been breaches of and . 2014‑05‑18 00:08:30 , Deprivation of liberty, ,

This is the executive summary and conclusion from the Court of Appeal decision: "In June 2007 RB sustained a serious brain injury in an accident. He was treated for eight months in hospital and then transferred to a care home, S House. In 2011 RB ceased participating in rehabilitation programmes and proposed to leave S House. The staff at S House considered that RB was not capable of independent living. Because of his physical and mental disabilities he was likely to (a) resume his former chaotic lifestyle and (b) to suffer serious or fatal injuries in consequence. The Council granted a standard authorisation pursuant to schedule A1 to the Mental Capacity Act 2005 ('MCA'), which enabled staff to detain RB at S House. RB brought proceedings in the Court of Protection to terminate the standard authorisation. The Court of Protection dismissed the application and RB appealed to the Court of Appeal. He contends that two preconditions for deprivation of liberty are not satisfied, namely the mental capacity requirement (set out in paragraph 15 of schedule A1) and the best interests requirement (set out in paragraph 16 of schedule A1). In my view RB's appeal should be dismissed. Because of his brain injury RB is unable to use and weigh relevant information. He does not appreciate the dangers of resuming his former chaotic lifestyle in his present condition. Therefore the mental capacity requirement is satisfied. If RB is discharged into the community, he is likely to revert to alcoholism and a chaotic lifestyle. Given his current disabilities, this is likely to lead to serious injury. Therefore confinement in S House, at least for the time being, is in RB's best interests. I reject the submission that IM v LM">[2014] EWCA Civ 37 somehow governs the outcome in this case. The court must apply the provisions of the MCA, not judicial glosses on the statute." [Permission to appeal to the Supreme Court was refused, and permission to appeal to Strasbourg is being sought.] 2014‑05‑10 13:59:17 , , , Deprivation of liberty,

(1) The 'acid test' for deprivation of liberty is whether the person is under continuous supervision and control and is not free to leave. (2) The following are not relevant: (a) the person's compliance or lack of objection; (b) the relative normality of the placement (whatever the comparison made); and (c) the reason or purpose behind a particular placement. (3) Because of the extreme vulnerability of people like P, MIG and MEG, decision-makers should err on the side of caution in deciding what constitutes a deprivation of liberty. 2014‑03‑20 22:44:13 , Deprivation of liberty, ,

— "These proceedings were heard in private however this judgement is being published at the request of the respondents in order to explain the thinking of the court when approving an agreed order compromising a claim for remedies under s.8 Human Rights Act 1998 ('HRA'), which included a sum in damages, for alleged breaches of a party's rights under Articles 5 and 8 ECHR. ... However, despite this non-admission of liability, the Local Authority had offered in compromise: (a) an apology to Mrs D for the delay in bringing these proceedings; (b) to pay a sum of £15,000 to Mrs D; (c) to pay the reasonable costs of the action incurred by Mrs D's litigation friend; (d) to pay a sum of £12,500 to her husband Mr D; (e) to pay Mr D's reasonable costs of the action. ... For all of the above reasons therefore, the Court's view was that the totality of the compromise represented a reasonable settlement and in the circumstances represented sufficient satisfaction for the alleged breaches of rights, and as such it was approved." 2014‑03‑05 02:33:29 , Deprivation of liberty, ,

Under , Legal Aid for appeals is non-means-tested for as long as the relevant standard authorisation is in force. In this case the Ministry of Justice and the Legal Aid Agency confirmed that Legal Aid could continue if the court extends the standard authorisation for the duration of the case. 2013‑12‑09 09:58:13 , , Deprivation of liberty,

— "These Court of Protection proceedings under Section 21A of the Mental Capacity Act 2005 were brought in May 2013 on behalf of a 67-year-old lady named M. ... M wants to return to her own home, a bungalow that, until she went into residential care, she had shared for much of the time with her partner of 30 years." [Summary required.] 2013‑11‑12 21:17:02 , Deprivation of liberty, ,

The applicant had been given an IPP sentence then transferred to hospital under . On 12/12/11 the MHT decided she met the criteria for conditional discharge. The dossier reached the Parole Board on 29/3/12, and the hearing was arranged for 12/3/13. She claimed a breach of (4) during: (a) the period before the dossier was ready, when no judicial body was responsible for supervising her progress and the potentiality for release, and (b) the subsequent long period until the Parole Board met. The Court of Appeal gave permission to apply for judicial review (being simpler than giving permission to appeal the High Court's refusal of permission to apply for judicial review). 2013‑08‑30 21:58:45 , , Deprivation of liberty, ,

It was argued at the tribunal that AM should be discharged from s2 in order to remain in hospital informally. (1) A tribunal should (a) decide whether the patient has capacity to consent, (b) decide whether DOLS is an alternative, and (c) in considering the MHA 'necessity' test identify the regime which is the least restrictive way of best achieving the proposed aim. The tribunal had failed properly to consider whether AM would comply with informal admission (which is relevant to the second question) so the case was remitted to a differently-constituted tribunal. (2) To be compatible with ECHR, ss 2, 3 and 72 MHA 1983 have to be applied on the basis that for detention in hospital to be 'warranted' it has to be 'necessary' in the sense that the objective set out in the relevant statutory test cannot be achieved by less restrictive measures. [A more detailed summary is available on the case page.] 2013‑08‑24 14:36:52 , Deprivation of liberty, , ,

— "The case concerns the future of a twenty five year old man, WMA, and where he should live plus what help should be given to him. It raises complex issues about best interests and deprivation of liberty. ... there is no doubt in my mind it is WMA's best interests to move to B ... if one looks at WMA's isolation, the refusal to engage with outside agencies, the poor conditions in the home and the absence of friends, save one for MA, of both mother and son and contrasts them with the opportunities for WMA at B then the opportunity for a higher quality private life is clear. ... I confess for my part it is not easy to follow the reasoning of the Cheshire West decision. That said, I agree strongly with the Official Solicitor that moving WMA to B would be a deprivation of liberty ... The local authority now concedes there will be a deprivation of liberty, at least because the move will be involuntary. I would go further and note that WMA at least in the short term objects to the arrangements for him and he may seek to leave. We simply do not know. So being in B may in itself be a deprivation of liberty. I will not delve into the meaning of 'restraint' and 'deprivation of liberty' as analysed in the Cheshire West and Chester case. ..." [Summary required.] 2013‑08‑24 14:26:37 , , Deprivation of liberty, ,

— "This is an application made by Y County Council in the Court of Protection in relation to Mr ZZ, a man of young middle age. I am invited to make a number of declarations in relation to Mr ZZ. First, I am asked to find that he lacks litigation capacity on the issues in this case. Second, I am invited to declare that he lacks capacity to decide upon the restrictions relevant to supporting his residence and care. Finally, I am asked to declare that he is being deprived of his liberty, but that it is lawful as in his best interests pursuant to schedule A1 of the Mental Capacity Act 2005. Mr ZZ is represented by the Official Solicitor. He has been present throughout the hearing and has conducted himself with dignity throughout. Indeed, he gave unsworn, oral evidence before me in an entirely courteous and helpful way." [Summary required.] 2013‑06‑06 14:09:46 , Deprivation of liberty, ,

— "The two questions considered at the hearing, which form the subject of this judgment, are (1) Do L's current circumstances amount objectively to a deprivation of liberty? (2) When assessing whether L has capacity to consent to her accommodation at WH, in circumstances which amount to a deprivation of liberty, what information is relevant to that decision?" [Summary required; detailed external summary available.] 2013‑03‑25 22:35:38 , Deprivation of liberty, , ,

KK was moved to a care home against her wishes, subject to a DOLS standard authorisation, and appealed under . (1) Having heard her oral evidence, the judge disagreed with the unanimous expert evidence that she lacked capacity to make decisions about her residence and care. (2) In light of the case law and the facts of the case, she had not been deprived of her liberty. 2012‑09‑27 22:31:54 , , Deprivation of liberty, ,

The Court of Protection approved a consent order under which the London Borough of Hillingdon is to pay £35,000 damages to Stephen Neary. 2012‑07‑26 19:48:49 , , , Deprivation of liberty,

— "This application is made by the Health Service Executive of Ireland ('the HSE'), the statutory authority with responsibility for children taken into public care in the Irish Republic, for an urgent order under Article 20 of the Council Regulation (EC) 2201/2003 of 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No.1347/2000 (commonly known as 'Brussels II Revised') in respect of a 17-year-old girl whom I shall refer to as SF. At the conclusion of the hearing on 4th May 2012, I made the order sought by the HSE. This judgment sets out the reasons for my decision." [Summary required.] 2012‑06‑23 17:45:37 , Deprivation of liberty, ,

— "This case comes before me for directions today. The person whose best interests have to be considered by the court is a HA. The Official Solicitor now acts for her as her litigation friend and in that capacity has continued an application under s.21A of the Mental Capacity Act 2005 (the Act) that was instigated before his appointment." [Summary required.] 2012‑06‑23 14:28:12 , Deprivation of liberty, , ,

— "This is an application made by the Official Solicitor on behalf of the Applicant EM, for the discharge of the latest of a series of standard authorisations made on 16 January 2012 pursuant to the Mental Capacity Act 2005. The effect of the standard authorisation is to deprive EM of his liberty and oblige him to live at a nursing home, RH, rather than at the home which he had shared with his wife and son for many years." [Summary required.] 2012‑06‑21 21:25:21 , Deprivation of liberty, , ,

— Kettling/ case. [Summary required.] 2012‑05‑08 19:26:31 , Deprivation of liberty, ,

— "The primary matters on which decisions need to be made by the court are: (1) Should ST live at L (or possibly some other care home type accommodation in London) or in his property at X, Nigeria; (2) If ST remains at L, is he being deprived of his liberty and, if he is being so deprived, does that remain appropriate; (3) Should ST's property and affairs deputy be AT or Mr G, the current interim independent professional deputy?" [Summary required.] 2012‑03‑28 22:42:02 , Deprivation of liberty, ,

— Kettling did not breach . [Summary required.] 2012‑03‑19 22:51:40 , Deprivation of liberty, , ,

The Mental Health Tribunal may not grant a conditional discharge in circumstances where the conditions would inevitably lead to an deprivation of liberty. Postscript: see . 2011‑12‑31 13:08:45 , , Deprivation of liberty, ,

(1) An adult in the exercise of parental responsibility may impose, or may authorise others to impose, restrictions on the liberty of the child. However restrictions so imposed must not in their totality amount to detention. Detention engages the rights of the child and a parent may not lawfully detain or authorise the detention of a child. (2) The restrictions authorised by RK's parents did not amount to deprivation of liberty: they were no more than what was reasonably required to protect RK from harming herself or others within her range. 2011‑12‑08 21:47:01 , Deprivation of liberty, ,

The applicants had been detained for several years in a prison 'Psychiatric Annex' which was an inappropriate institution for the detention of mental health patients, in breach of (1); the applicants were awarded compensation of €15,000 and €25,000 respectively. 2011‑11‑26 15:17:07 , , Deprivation of liberty, ,

P's care plan at Z House did not amount to a deprivation of liberty: "At Z House and outside it P is living a life which is as normal as it can be for someone in his situation." [Caution: see Supreme Court decision.] 2011‑11‑09 21:34:46 , Deprivation of liberty, , ,

— 'There are two sets of proceedings which concern BB. In the first, her litigation friend, sought guidance from the court under sections 16 and 18(k) of the Mental Capacity Act 2005 about the conduct of proceedings concerning BB and declarations that she a) lacks capacity to conduct those proceedings and b) it is in her best interests that, in the event that her marriage to MA is a valid marriage, it be annulled or that there be a declaration that it is not recognised by the law of England and Wales. In the second, the local authority as substituted applicant seeks declarations that BB a) lacks the capacity to litigate, b) lacks capacity to decide where she should live, with whom she should have contact, who should provide her with care, what care should be provided to her and the medical treatment she should receive for her mental disorder. The court is asked to make decisions on her behalf as respects those questions which the court determines she is incapacitated to answer.' [Summary required.] 2011‑11‑09 21:20:31 , , Deprivation of liberty, ,

Under domestic law S should have been heard 'promptly' after the county court ruled on her compulsory admission to hospital, but was not heard for 15 days; no adequate justification was given; this was a considerable portion of the three-month admission period; the domestic supreme court noted the procedural violation but offered no redress: overall, there had been a breach of (1), in that she was not detained in accordance with a procedure prescribed by law. Compensation of €5000 was awarded. 2011‑10‑06 21:42:07 , , Deprivation of liberty, ,

(1) The new care plan was in P's best interests (paras 35, 39). (2) There was a deprivation of liberty (reasons given in paras 58-60). (3) A costs order was made against the local authority as the serious misconduct of its employees (including misleading the court under oath, failure to disclose documents and falsifying records) rendered the proceedings more costly (para 76). (4) The public interest in holding public authorities accountable amounts to a 'good reason' for naming the local authority; the scale of the possible identification of P was minor enough not to prevent this (paras 89-90). 2011‑06‑19 22:41:50 , , , Deprivation of liberty,

— Judgment in related COP and Admin Court proceedings relating to an 18-year old with severe autism and severe learning disabilities living at a residential special school. Issues considered include deprivation of liberty and seclusion. [Summary required.] 2011‑06‑16 22:17:33 , Deprivation of liberty, ,

(1) By keeping Stephen away from his home, Hillingdon breached and (1) (notwithstanding DOLS authorisations granted during later stages). (2) By (a) failing sooner to refer the case to the COP, (b) failing sooner to appoint an IMCA, and (c) failing to conduct an effective review of the best interests assessments, Hillingdon breached Article 5(4). 2011‑06‑09 14:44:57 , , , Deprivation of liberty,

A, represented by the OS, appealed under against a DOLS standard authorisation; the other parties, including A's son, argued that A lacked capacity and that his current placement was in his best interests. The OS wanted an up-to-date assessment of capacity and a report on best interests, suggesting a COP Visitor report as being the proportionate method: the report would determine whether to dispose of the case by consent or seek further directions. Given the clear evidence, had it been a child best interests case there would have been summary judgment; however, the MCA laid down stringent conditions for deprivation of liberty, so the court cannot act as a rubber stamp and the OS must be allowed to carry out his duty of representing A as he thought fit. Having regard to the overriding objective, the COP Visitor method, and likely disposal without a further hearing, was the best way forward. 2011‑03‑29 22:00:03 , , , Deprivation of liberty,

Judgment of Parker J upheld: neither P (aged 18, in a foster placement) nor Q (aged 17, in a small group home) was deprived of her liberty. [Caution: see Supreme Court decision.] 2011‑02‑28 13:44:57 , Deprivation of liberty, ,

Consideration of the legal aid position in relation to deprivation of liberty reviews following final hearing. 2011‑01‑24 21:23:37 , , Deprivation of liberty,

There was effectively a presumption against deprivation of liberty (pursuant to (6)) and, on the facts, the balance tilted in favour of P returning home pending a final hearing at which full evidence could be considered. [Summary based on counsel's case report.] 2011‑01‑23 18:02:24 , , Deprivation of liberty,

(1) The Tribunal may conditionally discharge with conditions which amount to a regime of detention (deprivation of liberty) to any establishment which is not defined as a 'hospital'. [Caution.] (2) The Upper Tribunal will follow High Court decisions unless it is convinced they are wrong, but where highly specialised issues arise the UT may feel less inhibited than the High Court in revisiting the issues. 2011‑01‑13 23:51:30 , Deprivation of liberty, , , ,

(1) Given the terms of s20(8) (that any person with parental responsibility may at any time remove the child) the provision of accommodation to a child under s20(1), (3), (4) or (5) will not ever give rise to a deprivation of liberty within the terms of . If the child is being accommodated under the auspices of a care order, interim or full, or if the child has been placed in secure accommodation under s25, then the position might be different. (2) In any event: (a) the objective element of deprivation of liberty was not remotely close to being met on the facts; (b) the subjective element was not met, as the parents had consented on RK's behalf; (c) RK's placement was at the behest of her parents and could not be imputed to the state. [Detailed summary to follow.] 2011‑01‑04 23:38:25 , , Deprivation of liberty, ,

— Costs judgment. "In all the circumstances, I conclude that this is a case for departing from the general rule set out in rule 157 of the Court of Protection rules, and I make an order in the following terms: (1) That the local authority should pay the costs of G, F and E, including pre-litigation costs, up to and including the first day of the hearing before me on 14th January 2010 on an indemnity basis. (2) The local authority shall pay one third of the costs of G, F and E from that date up to and including the hearing on 6 May 2010 on a standard basis. (3) All costs will be subject to a detailed assessment, if not agreed." [Summary required.] 2011‑01‑04 23:32:35 , , Deprivation of liberty, ,

Given that a standard authorisation extends to restraining a person from leaving the accommodation, it must also extend to compelling him to return: "Do the powers under the existing standard authorisation extend to coercing ADE back to the nursing home if ADE refuses to return? It would be little short of absurd if the local authority and AHNH had powers to restrain him from leaving but not to compel him to return: the greater power must include the lesser. I will therefore declare that this power is implicit in the current and any future standard authorisation." 2010‑12‑17 00:30:50 , , Deprivation of liberty,

— Court of Protection case about 'DOLS breakdowns'. [Official summary available.] 2010‑10‑22 23:57:53 , Deprivation of liberty, ,

(1) P lacked capacity to decide where and with whom he should reside. (2) The removal of P from AH's care at home, as a manifest breach of Article 8, could only be proportionate if the best interests of P compellingly required it. (3) It was in P's best interests to be moved to independent living accommodation. (4) There would be a deprivation of liberty due to (a) the degree of control to be exercised by staff, (b) the constraint on P leaving if he intends to return to AH, (c) the power to refuse a request from AH for P's return, (d) the restraints on contact, (e) the fairly high degree of supervision and control. (5) Directions were given in relation to the conduct of further court reviews. (6) Contact would be dealt with separately in an Order. 2010‑09‑13 23:44:12 , , , Deprivation of liberty,

Neither MIG (aged 18, in a foster placement) nor MEG (aged 17, in a small group home) was deprived of her liberty. [Caution: see Supreme Court judgment.] 2010‑09‑03 16:41:13 , Deprivation of liberty, ,

(1) BB was not ineligible to be deprived of her liberty within the meaning of Case E of as the psychiatric evidence was that the criteria under s2 or s3 MHA were not made out. (2) In relation to whether or not there was a deprivation of liberty: on one hand (a) BB was under sedation; staff exercised control over her care, movements, assessments and treatments; staff also exercised control over her residence and the contacts she had with other people; her family were hostile to her placement; the court was refusing to sanction the discharge of BB into the care of her parents pending the conclusion of investigations being carried out by the police; on the other hand (b) BB was apparently happy where she was; she had a degree of freedom within the hospital; in addition if she asked to leave, she was allowed to do so, although only under the supervision of accompanying staff; in conclusion (c) she was being deprived of her liberty as she was away from her family, in an institution under sedation in circumstances in which her contact with the outside world was strictly controlled, her capacity to have free access to her family was limited, now by court order, and her movements were under the strict control and supervision of hospital staff. 2010‑08‑09 22:57:10 , Deprivation of liberty, , ,

(1) The arguments in favour of publication of the local authority's name (openness and accountability) were truly compelling: they amounted to a "good reason" and the balancing exercise came down in favour of publication. It would be a different matter if there was any significant risk that the family might be identified, but Manchester is a large city. (2) It would inappropriate and unfair to name the social workers, because responsibility for what went wrong rested at a much higher level, including the failure to provide any or any adequate training on the introduction of the DOLS. (3) Neither the company running the establishment nor its manager would be identified: (a) they were not represented when the criticisms were made or identification was discussed; (b) it had not been necessary to make findings on the criticisms, the appropriate course being for the OS to raise the issue with the CQC which has some responsibility for such establishments; and (c) crucially, it would lead to a significant risk of the family being identified. (4) In an unreported judgment in May it was ordered that E should return to F's care immediately, and residence and family contact there had been successful. (5) A further judgment will be delivered dealing with: (a) arrangements as to E's future care; (b) whether to appoint G and F as deputies; and (c) whether the OS should be replaced as E's Litigation Friend. (6) A further hearing will deal with: (a) whether the Court of Protection can award damages for human rights breaches; if so, whether to do so; if not, whether to leave or transfer that claim to another jurisdiction; and (b) whether to make a contact order against MCC and if so on that terms. 2010‑08‑04 22:36:32 , Deprivation of liberty, ,

The judge was right to reject the appellant's submission that places distinct threshold conditions which have to be satisfied before a person lacking capacity can be detained in his best interests under the MCA 2005. The MCA generally, and the DOLS in particular, plug the Bournewood gap and are Article 5 compliant. 2010‑07‑18 00:30:09 , Deprivation of liberty, ,

The circumstances of the domestic care of A and C by their families in the family home did not involve a deprivation of liberty engaging the protection of . 2010‑07‑08 21:55:07 , Deprivation of liberty, ,

Successful renewed application for permission to appeal: it was arguable that the judge was wrong in deciding that the court may entertain an application for an order under s16 MCA 2005 that would have the effect of depriving a person of his liberty without being satisfied that his condition warrants compulsory confinement. Permission was given on other grounds also. 2010‑07‑08 21:48:27 , , Deprivation of liberty,

The de facto detention of an informal incapacitous patient, and the series of detentions under s5(2), was unlawful. (Claim settled by consent.) 2010‑06‑28 16:32:40 , , Deprivation of liberty, ,

— Control order/deprivation of liberty case. [Summary required.] 2010‑06‑18 23:23:09 , Deprivation of liberty, ,

(1) MP, who suffered from a learning disability and lacked capacity as to residence and contact, was removed from his mother's accommodation and conveyed by the police to a care home. On the facts, there was presently no deprivation of liberty and it was in MP's best interests to remain at the care home with the existing contact regime continuing. (2) Guidance was given, subsequently approved by the President of the Family Division and Court of Protection, for cases where a vulnerable or incapacited adult requires to be removed from premises with the help of the police. 2010‑05‑13 20:00:21 , Deprivation of liberty, ,

E lacked capacity and was being deprived of his liberty at a residential unit by the local authority. They had breached his Article 5 rights by doing so without seeking a DOLS authorisation or court order, and had breached his Article 8 rights by actions including a failure properly to involve his carer. However, the court authorised continuing deprivation of liberty at the residential unit pending the final hearing as this was in his best interests. There is no threshold condition for an order under s16 depriving someone of his liberty, other than that P lacks the relevant capacity. When considering DOL there is a clear distinction between a placement at home, with family or an adult carer, and a residential placement. Hearsay from an incompetent witness is admissible but no weight would be given to E's statements. 2010‑03‑31 22:32:14 , Deprivation of liberty, ,

The Official Solicitor's view and independent expert's opinion was that EH, an elderly lady with dementia, should be assisted to continue to live at home; notwithstanding this, the judge agreed with the local authority that it was in EH's best interests to be deprived of her liberty in residential accommodation for her own safety. 2010‑03‑28 13:34:42 , , Deprivation of liberty,

In relation to a 7-month delay in holding a Parole Board hearing, the SSJ admitted breach of (4) and apologised, but the claimant sought damages under Article 5(5). (1) Article 5(5) (which gives an "enforceable right to compensation") and s8 (which limits the power to award damages) are not inconsistent because compensation in Article 5(5) is not limited to money. (2) The first of two grounds for the claim was that the delay increased the length of detention: because of the number of imponderables in the case it was impossible to conclude this. (3) The second ground was based on an inference that frustration and anxiety had been caused: the judge was not prepared to infer, in the absence of specific evidence, a level of frustration of distress sufficient to warrant an award of damages. (4) In general, as to whether or not to award damages, the length of the delay, the effect of the delay, and the impact on the claimant are relevant factors; the seriousness of the original offence is not. 2010‑02‑05 20:51:38 , Deprivation of liberty, , , ,

The Independent Assessor must have erred in law by failing to make proper use of the civil law awards, because without much explanation he arrived at an award which is irrationally low (namely £55,000 for over 4 years' detention following wrongful conviction for murder). 2009‑12‑09 23:35:49 , Deprivation of liberty, , ,

(1) A DOLS standard authorisation was sufficient to return P on the long journey from contact sessions to the residential accommodation: the Code of Practice paragraphs saying that conveyance may require a court order only apply where no SA is in place. (2) It was inappropriate to seek an anticipatory declaration for the use of force, as and permitted restraint. (3) The interim residence order should be enough to persuade the police to facilitate P's return. 2009‑11‑12 00:57:32 , , Deprivation of liberty,

TB was eligible to be deprived of her liberty under the Mental Capacity Act 2005 (either under DOLS provisions or s16 court order): she might have been ineligible under Case E, but she was not a "mental health patient" because her care home did not fall within the definition of a hospital. 2009‑07‑23 22:08:17 , Deprivation of liberty, ,

Condition of discharge not to leave without escort not unlawful on the facts. 2009‑04‑12 13:01:39 , , Deprivation of liberty, ,

(1) The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, not one of nature or substance; it is highly sensitive to the facts of each case. (2) Where the purpose of the measure is relevant, it must be to enable a balance to be struck between what the restriction seeks to achieve and the interests of the individual; there is room, even in the case of fundamental rights, for a pragmatic approach which takes full account of all the circumstances; however, in general, purpose is relevant, not to whether the Article 5 threshold is crossed, but to justification under 5(1)(a) to (e). (3) Measures of crowd control will fall outside the ambit of so long as they are not arbitrary, i.e. they must be resorted to in good faith, they must be proportionate, and they must not be enforced for longer than is reasonably necessary; the confinement by the police of the claimant for seven hours in Oxford Circus in order to avoid physical injuries and property damage therefore did not engage Article 5; if Article 5 had been engaged then the deprivation of liberty could not have been justified under Article 5(1)(a) to (e) for each individual in the crowd. 2009‑01‑29 23:21:14 , Deprivation of liberty, , ,

The claimant's appeal under s10(1) of the against the modification of his control order (that the cumulative effect in his changed circumstances, in particular because he now lives alone and his perceived declining mental health, had led to breaches of Articles , and ) failed. 2009‑01‑19 20:58:06 , Deprivation of liberty, ,

The appropriate safeguards to be put in place when the court authorises the placement of an incapacitated adult in circumstances engaging Article 5 of the Convention. 2008‑12‑28 19:31:41 , , Deprivation of liberty, ,

The delay following the deferred conditional discharge decision did not breach Article 5(1), since if no psychiatric supervision could be found then continued detention was the only option, distinguished; the House of Lords had been right in concluding that the Tribunal's inability to reconsider the case in light of the inability to achieve the conditions disclosed a breach of Article 5(4); however, since the domestic court had acknowledged the breach, IH was no longer a "victim" of a violation of Article 5(4); therefore no issues arose under Article 5(5) and, in any event, there is no absolute right to compensation, and the Lords' decision not to award damages was not arbitrary or unreasonable. The application was inadmissible. 2008‑11‑29 13:36:53 , , Deprivation of liberty, ,

— Best interests/deprivation of liberty case. 2008‑10‑06 16:07:24 , Deprivation of liberty, ,

— Bournewood gap. 2008‑09‑13 06:09:48 , Deprivation of liberty, ,

— Bournewood gap. 2008‑09‑13 06:09:03 , Deprivation of liberty, ,

— Bournewood gap. 2008‑09‑13 06:08:05 , Deprivation of liberty, ,

Under inherent jurisdiction the court made orders that (1) PS could lawfully be prevented from leaving residential care unit (2) a receiver would be appointed without the need for a separate application to the Court of Protection. 2008‑02‑23 00:02:26 , , Deprivation of liberty, ,

Conditions of discharge are lawful so long as they do not amount to a deprivation of liberty: in this case, a condition that the patient could not leave a hostel unescorted was lawful; so too could be a condition of residence at a hospital (rough summary) 2007‑02‑06 18:15:31 , , Deprivation of liberty, ,

In determining whether a person is deprived of his liberty, the crucial question is whether he is is “free to leave” the institution, not only for approved outings but also permanently to go or live where or with whom he chooses; there can be deprivation of liberty in the absence of a lock or physical barrier, and it can equally be caused by the misuse or misrepresentation of even non-existent authority 2007‑01‑20 11:09:41 , Deprivation of liberty, , ,

The Tribunal were right to conclude that the conditions which the claimant patient contended for (continued residence at Thornford Park) would be a deprivation, rather than a restriction, of his liberty. The patient's consent to this continuing deprivation of liberty would not confer jurisdiction on the Tribunal.' 2006‑04‑10 20:46:03 , , Deprivation of liberty, ,

Conditions attached to conditional discharge of restricted patients must not be so severe as to deprive the patient of his liberty (as opposed to merely restricting it). In this case the condition that the patient may not leave a hostel without escorts deprived him of his liberty. Re PH distinguished: the purpose of the restrictions (and the hope in PH that the need for them might diminish) was different. 2006‑04‑10 20:33:12 , , Deprivation of liberty, ,

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