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.

Five test cases involving elderly people (RD, JB, JP, EP and JW) who suffered from a form of dementia were identified to enable the court to consider the question of when an application should be made to court under section 21A MCA. All five individuals were being deprived of their liberty in a care home or hospital setting under a DOLS authorisation. The court gave general guidance as to the approach that should be adopted by RPRs and IMCAs in deciding whether to issue proceedings under s.21A.

This case relates to deprivation of liberty procedure. In Re X and others (Deprivation of Liberty) [2014] EWCOP 25 (and No 2 [2014] EWCOP 37), Sir James Munby, the President of the Court of Protection sought to devise a streamlined process to seek to enable the court to deal with DoL cases in a timely, just, fair and ECHR-compatible way. The Court of Appeal has now held that Sir James Munby P had not been entitled to proceed in the fashion that he did, and that his ‘judgments’ were in fact not authoritative statements of the law.

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.