A PCT v LDV [2013] EWHC 272 (Fam)

Informal admission "The two questions considered at the hearing, which form the subject of this judgment, are (1) Do L's current circumstances amount objectively to a deprivation of liberty? (2) When assessing whether L has capacity to consent to her accommodation at WH, in circumstances which amount to a deprivation of liberty, what information is relevant to that decision?"


Thanks to Alex Ruck Keene (39 Essex Chambers) for providing the judgment.


Discussion and Conclusion

37. It seems to me to be undesirable for the court in these circumstances to be asked as a matter of course to identify in advance and with precision the information which a person must be capable of understanding, retaining, using and weighing by a person in order to make a decision whether to consent to a placement which amounts to a deprivation of liberty. The evaluation of capacity is a complex process that engages the principles in sections 1, 2 and 3 of the MCA. The better course, in my judgment, is for the clinician to consider the concrete situation and assess the level of the person's understanding about that situation. The court will then, in the light of that assessment and all other relevant evidence, consider whether practicable steps to help him decide whether or not to give his consent have been taken and if so, whether it has been proved on a balance of probabilities that he lacks the capacity to make the decision. If the court were asked as a matter of routine to identify for the parties in advance the precise information necessary for making a decision, it would lead to an alarming amount of satellite litigation at great and unnecessary cost.

38. In expressing the following views, therefore, I am not seeking to set any sort of precedent, either as to the process to be followed or as to the type of information which is likely to be relevant in such cases, but merely to assist the parties in this case.

39. I consider that on the facts of this case, the clinicians and the court should ask whether L has the capacity to understand, retain, use and weigh the following information:

(1) that she is in hospital to receive care and treatment for a mental disorder;
(2) that the care and treatment will include varying levels of supervision (including supervision in the community), use of physical restraint and the prescription and administration of medication to control her mood;
(3) that staff at the hospital will be entitled to carry out property and personal searches;
(4) that she must seek permission of the nursing staff to leave the hospital, and, until the staff at the hospital decide otherwise, will only be allowed to leave under supervision;
(5) that if she left the hospital without permission and without supervision, the staff would take steps to find and return her, including contacting the police.

40. Whilst I accept Mr. Mant's submission that the specific consent under consideration is to the 'deprivation of liberty' and not to the care or treatment as such, it seems to me that the information which must be understood, retained, used and weighed extends to some information about the context in which the deprivation is being imposed.


The proceedings were in the Court of Protection (case COP12230183) but got a "Fam" neutral citation number.


Essex newsletter 31.pdf
This case has been summarised on page 3 of 39 Essex Street, 'Court of Protection update' (issue 31, March 2013).

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Full judgment: BAILII
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  • Deprivation of liberty🔍

Date: 18/2/13🔍

Court: Court of Protection🔍



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Published: 25/3/13 22:35

Cached: 2024-06-22 16:31:05