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Drilldown: Cases

Not many cases (185) have been added to the database so far. To see the full list of cases (2016) go to the Mental health case law page.

Cases > Subject : Advance_decision_cases or Deprivation of liberty

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Showing below up to 16 results in range #1 to #16.

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Page name Sentence Summary
Atudorei v Romania 50131/08 (2014) ECHR 947 DOL damages Breach of Articles 5 and 8, but not Article 8, relating to hospital admission.
CB v Medway Council (2019) EWCOP 5 Unfair summary disposal of DOL/residence case "The simple issue is whether the Judge had sufficient information before her to discount, at this stage, any real possibility of CB returning to her home, supported by the extensive and expensive care package that is being mooted. The language of the Judgment itself, to my mind, answers this question in phrases such as “I very much doubt…. I am very sceptical…. The practicalities are…. likely to be extremely difficult….” I share the Judge’s scepticism and I also very much doubt that even with an extensive package of support a return home will be in CB’s best interest. I note too that Dr Ajiteru expressed himself in cautious terms (see para 10 above). However, scepticism and “doubt” is not sufficient to discount a proper enquiry in to such a fundamental issue of individual liberty. ... It is easy to see why the Judge took the course she did and I have a good deal of sympathy with her. She will have recognised, as do I, that the effluxion of time has had its own impact on the viability of the options in this case. However, what is involved here is nothing less than CB’s liberty. Curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry. I cannot envisage any circumstances where it would be right to determine such issues on the basis of speculation and general experience in other cases."
King's College Hospital NHS Foundation Trust v FG (2019) EWCOP 7 Medical treatment case "[T]he King's College Hospital NHS Foundation Trust seeks an order in the following terms in relation to FG: (a) a declaration that FG lacks capacity to make decisions regarding the medical treatment for his physical health conditions; (b) that it is lawful and in FG's best interests for him to undergo an operation to repair his right shoulder fracture/dislocation; and (c) that it is in his best interests to receive any sedation and anaesthesia his clinicians think necessary to allow the operation to be done. The matter has come in front of me today as urgent applications judge."
LV v UK 50718/16 (2019) MHLO 32 (ECHR) MHT/Parole Board delay LV, a s47/49 patient, had argued that there had been a delay, in breach of Article 5(4), in securing her release, in particular because of the two-stage process involving both the Mental Health Tribunal and Parole Board. She accepted the government's offer of £2,500 in settlement of her claim.
P v A Local Authority (2015) EWCOP 89 Discharge from DOLS "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)."
R (LV) v SSJ (2013) EWCA Civ 1086 MHT/PB delay The applicant had been given an IPP sentence then transferred to hospital under s47/49. 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 Article 5(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).
R (LV) v SSJ (2014) EWHC 1495 (Admin) MHT/PB delay "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."
R v LV; R (LV) v SSJ (2015) EWCA Crim 45, (2015) EWCA Civ 56 Sentencing guidance; MHT/PB delay "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 MHA 1983 s37 as amended with a restriction under s41 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 s47. (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 s45A order before considering making a hospital order.
Re AB (Inherent Jurisdiction: Deprivation of Liberty) (2018) EWHC 3103 (Fam) Inherent jurisdiction authorises DOL during conditional discharge 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.
Re HC (A Minor: Deprivation of Liberty) (2018) EWHC 2961 (Fam) DOL of child "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."
Re KT (2018) EWCOP 1 Role of COP Visitor in DOL cases "These are four test cases that were stayed in accordance with my decision in Re JM [2016] EWCOP 15, [2016] MHLO 31. ... 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."
Re RD (Deprivation or Restriction of Liberty) (2018) EWFC 47 "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."
Royal Borough of Greenwich v CDM (2018) EWCOP 15 Fluctuating capacity "In this case the patient is CDM, a lady aged 63 years. ... My Conclusions: (i) I conclude that CDM lacks capacity to conduct proceedings, as is agreed on behalf of CDM. (ii) I conclude that she does not have capacity to make decisions about her residence. ... (iii) By the end of the case the parties agreed that I should consider care and treatment separately. CDM carries out her own self-care, with encouragement, in the care home. I am not satisfied that she does not have the capacity so to do. There will be some occasions when she makes appropriate decisions, for example accepting insulin from the nurse, but there are many other occasions when she makes manifestly unwise decisions as a result of her personality disorder which impairs her ability to follow professional advice, whether in respect of her residence or treatment. I therefore accept Dr Series' evidence that when making appropriate decisions she has capacity but when making manifestly inappropriate decisions she lacks capacity. (iv) Property and affairs: I am troubled by the lack of evidence on this issue. ... I do not think I have any satisfactory evidence on which I can conclude that she lacks capacity in this area. (v) I conclude that she lacks capacity to surrender the tenancy of her property. This decision is intimately bound up with her ability to make decisions about residence. ... It follows and I so find that CDM lacks capacity in relation to the question whether or not she should be accommodated in CC (being the relevant hospital or care home) for the purpose of being given the relevant care or treatment. I therefore authorise her continued detention and deprivation of liberty in CC. ... This means that a further hearing will be required both to establish a mechanism under which the local authority can operate when capacity fluctuates and also to consider best interests."
SSJ v MM (2018) UKSC 60 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.
Staffordshire County Council (18 004 809) (2019) MHLO 41 (LGSCO) Failure to carry out DOLS assessments LGSCO decision: "The Council has acted with fault in deciding not to assess low and medium priority Deprivation of Liberty Safeguards applications. The Council is also taking too long to deal with urgent applications. This is causing a potential injustice to the thousands of people in its area who are being deprived of their liberty without the proper checks that the restrictions they are subject to are in their best interests." The final sentence of the conclusion states: "[I]t is not acceptable that the only way low and medium priority applications are resolved is because the people involved move away or die."
Welsh Ministers v PJ (2018) UKSC 66 (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.

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