This factsheet is aimed at service users and is about making sure people are safe in hospital and get the medical care they need. It includes illustrative examples of making decision about capacity and deprivation of liberty.

The court in Re NRA was faced with the need to devise a system which was compliant with Article 5 ECHR (deprivation of liberty) but not so onerous that it diverted resources away from frontline services, caused unnecessary interference in the lives of P and those who care for P, or resulted in excessive delay.

PJ was a man on a Community Treatment Order (CTO) which required him to live at a care home and abide by the regime there. PJ sought discharge of the CTO on the basis that the arrangements for his care amounted to an unlawful deprivation of liberty in breach of Article 5. The Mental Health Review Tribunal (MHRT) refused the application holding that PJ was not deprived of his liberty. In the Upper Tribunal, Charles J emphasised the different elements of the test for deprivation of liberty. He held that the MHRT had erred in law: (1) in its approach to the assessment of the degree of supervision and control required; and (2) by divorcing that consideration from the freedom of PJ to leave. The MHRT had overlooked, and failed to take into account, the guidance given in Cheshire West that the reason or purpose of the relevant conditions was not relevant to the assessment of whether the objective element of a deprivation of liberty was satisfied.

Findings of a survey of care home managers to look into how successfully the Mental Capacity Act (MCA) was being implemented on the front line of residential care. Respondents answered questions on the five principles of the MCA, and the questions asked how well they lead and supported their staff teams to understand and enact these principles. This research shows how some managers take a range of approaches to MCA implementation. Mentorship, coaching and active, floor-based management seemed to recur in the answers from managers who really wrote confidently about their staff team’s understanding of the MCA. One of the greatest apparent barriers to MCA implementation was information and knowledge not filtering down in homes where managers considered that the MCA, capacity assessments, Best Interests Decisions and DoLS were the concern of managers only, when this should not be the case and all staff should be engaged with, and inform these processes.

This case concerns leave under Section 17 MHA 1983 and DoLS. AB, a 34 year old woman, had a serious and life threatening cardiac condition, the recommended treatment for which was surgery. She lacked the capacity to make decisions as to her medical treatment (and to conduct proceedings in relation to her medical treatment). The local health board made an application to the Court of Protection for declarations and decisions in relation to AB’s capacity and best interests as regards heart surgery, as well as (prior) dental surgery to remove her lower teeth. The intention was that AB would be granted leave under s.17 MHA 1983 by her Responsible Clinician to attend at the general hospital for purposes of undergoing both treatments. Both before and during the planned procedures, AB would be subject to restraints amounting to a deprivation of her liberty. Decision Recognising that AB was at risk of dying, the court decided that it was in AB’s best interests to undergo both procedures for heart surgery and dental surgery. However, the Court of Protection could not exercise its powers to as so authorise the deprivation of her liberty. It was therefore necessary for the court to authorise AB’s deprivation of liberty at the general hospital under the inherent jurisdiction of the High Court.

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.

A step by step guide to help decide which legislation to use when making decisions about admission to a care home/remaining in a care home. The process outlined in the diagram applies only to patients who are 16 years or older – different arrangements are in place for under 16s.

This flowchart sets out the steps that need to be taken to ensure compliance with MCA, the MHA and the DoLS when admitting patients to hospital or preventing them from leaving hospital.