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.

This case concerns deprivation of liberty authorisation and the role of supervisory body. P was 26 years old with severe learning disability and autistic spectrum disorder. His placement broke down and he was urgently moved into a care home on 5 September 2014. On 24 November 2014 an urgent authorisation was issued by the care home and on 23 December 2014, a standard authorisation was granted by Surrey County Council, expiring on 18 October 2015. His mother, acting as relevant person’s representative and litigation friend, successfully challenged the authorisation and the court declared that it was in P’s best interests to move to a new placement after a period of transition. The court held that P had been unlawfully deprived of liberty prior to the urgent authorisation and between its expiry and the commencement of the standard authorisation. HHJ Cushing was very critical of the supervisory body for making an authorisation that ran for too long (80% of the maximum term) in circumstances where it was clear that the care home where he was deprived of his liberty was only suitable in the short term.

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.

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.