D was a 16-year-old boy who had been diagnosed with ADHD, mild learning disability, Asperger’s syndrome and Tourette’s syndrome. He had previously been detained in a psychiatric unit but was discharged to a residential home. The residential unit was funded by the local authority with his parent’s consent under section 20 of the Children Act 1989. All parties agreed that D was deprived of his liberty. The issue was whether D’s parents were able to consent on his behalf and whether the arrangements were imputable to the State. The local authority argued that the effect of the parents’ consent under section 20 of the Children Act 1989 meant that D’s placement and confinement were not imputable to the state, but this argument was rejected by the court. The local authority also stressed that the outcome of this decision would have significant resource implications for all local authorities but this argument was also rejected.

Maria Ferreira, a woman with Down’s syndrome, died in an intensive care unit after she dislodged a tube with her mittened hand. An inquest was to be held but whether a jury was required depended upon whether she died in “state detention” under sections 7 and 48 of the Coroners and Justice Act 2009. A key issue, therefore, was whether “state detention” equated to “deprivation of liberty” under Article 5(1) ECHR and the relevance of the Supreme Court’s decision in Cheshire West. The Court of Appeal concluded Ms Ferreira was not in state detention.

These test cases related to a class of cases in which a welfare order was sought by local authorities to authorise P’s deprivation of liberty under the Re X streamlined procedure. The court considered five cases, JM, AMY, JG, MM and VE, where there was no family member or friend who could act as litigation friend in applications by the local authority to authorise a deprivation of liberty. That was no longer the position in VE and the test cases referred to the remaining four. These cases provide practical guidance as to the procedure to be followed in applications made under the Re X streamlined procedure. The clear message to public authorities is to continue making applications where an individual is being deprived of their liberty in circumstances requiring authorisation from the court, even when there is no family member or friend who can act as P’s rule 3A representative.

This case related to conditional discharge of restricted patients and deprivation of liberty. It confirms that it is entirely possible for a person lacking capacity as to residence/care to be given a conditional discharge from detention under the MHA 1983 if the conditions amount to an objective deprivation of their liberty, so long as that deprivation of liberty is authorised in advance either by the Court of Protection (for supported living placements etc) or DoLS (care homes or hospitals).

This case concerns guardianship and DoLS. KD had Korsakov’s Syndrome and, following his detention under the Mental Health Act 1983, had been subject to guardianship since 2012. Before the First Tier Tribunal (Mental Health) (‘the FFT’), he sought to be discharged from the guardianship order on the basis that it was not necessary because an authorisation under Schedule A1 to the Mental Capacity Act 2005 (‘MCA 2005’) was less restrictive and guardianship could not authorise his deprivation of liberty. In this case, the guardianship order was not discharged. There was no firm proposal for where KD would live. The court decided that the prospect of an alternative placement being made available was not sufficient to found a discharge. However, it was open to KD to make a new application to the FTT supported by the appropriate evidence to have the guardianship order discharged.