A County Council v MB & Ors

The central issue at this hearing concerns the legality of the deprivation of MB’s liberty between (a) the expiration of a standard authorisation given under Schedule A1 MCA 2005 and expressed to come into force on Monday 1 March 2010 and to remain in force until Monday 29 March 2009, and (b) the making of an order by the court on 13 April 2010 under s. 16 MCA which authorised her deprivation of liberty at the third Respondent (the Residential Home).

MB seeks a declaration that from the expiry of that standard authorisation (which was accepted on her behalf to be at midnight on 29 March 2010) until the making of the order on 13 April 2010 she was unlawfully deprived of her liberty at the Residential Home, in breach of her Article 5 rights. In my view correctly, no damages are sought on behalf of MB under the Human Rights Act 1998.

Some points were also raised relating to the periods of the authorisation of the deprivation of Mrs B’s liberty given by authorisations. This was because guidance of the court was sought on these “timing points”. No declaratory relief was sought in respect of them. Guidance was also sought on other points.

The substantive welfare issues concerning whether it is in MB’s best interests to be accommodated (whether or not in circumstances that amount to a deprivation of her liberty) either (a) by the Applicant County Council in residential care or elsewhere, or (b) at home are no longer live issues. Since her placement away from home at the end of February 2010 she has not returned home and she is now placed in a specialist EMI nursing care home with the agreement of her husband (the Second Respondent) and the court shares the view of the Official Solicitor that this is in her best interests.

The points of law now before the court raise issues concerning the Deprivation of Liberty Safeguards (DOLS) provided by the MCA 2005 that have not previously been determined by the court, and which could have an impact in other cases in respect of the liberty of the subject.

Mrs B’s husband and the Residential Home have taken no active part in this aspect of the proceedings which relates only to those points of law.

The Residential Home is the managing authority and the Applicant is the supervisory body.

The First Urgent Authorisation.

The First Standard Authorisation.

The Second Standard Authorisation.

The Second Urgent Authorisation.

The Application to the Court.

All involved in the relevant decision making on the ground were faced with a difficult situation. To my mind correctly, no criticism has been made of any of Ms SP (the bests interests assessor) or the decision makers on behalf of the Applicant (the supervisory body) and the Residential Home (the managing authority). They were doing their best to perform their respective functions and duties under DOLS conscientiously and they were faced with a situation in which there was no existing guidance from the court. So, they (and their advisers) were faced with the unenviable task of interpreting and applying DOLS in an urgent situation.

Mrs B was 80 and diagnosed as suffering from Dementia of Alzheimer’s type of severe degree. She lacked capacity to decide where she should live. She and Mr B had been married for 56 years and until 22 February Mrs B lived at home with her husband. Concerns were raised as to his ability to continue caring for his wife and in particular as to four incidents between 8 December 2009 and 22 February 2010 when he accepted that in managing and caring for her, when she had become agitated, he had slapped, held or restrained her in a manner that left marks on her body. The trigger event to Mrs B being placed in the Residential Home was a report that Mr B had slapped her after she had kicked him during an agitated episode.

So, after many years of living together, a result of Mrs B’s illness was that she and her husband faced a difficult and distressing situation that accords with the experiences of others in a similar situation.

The move to the Residential Home, and a deprivation of Mrs B’s liberty at that home, was supported by Ms SP in her first best interests assessment. On the basis (adopting a reason which is set out as an option in Part 3 of Form AS4) that it was necessary to prevent harm to Mrs B. Following her admission to the Residential Home Mrs B regularly demonstrated distress, appeared to have lost some functioning skills and her appetite had diminished significantly. Within a month of being there she had noticeably lost weight by a dress size and new clothes had to be bought for her.

These factors led Ms SP (and others) to consider whether her continued placement in the Residential Home was in her best interests.

Ms SP in giving her second best interests assessment concluded that Mrs B did not meet the best interests requirement because (adopting reasons set out in Part 2 of the Form AS4) it was not in her best interests to be detained and it was not a proportionate response to the likelihood of her suffering harm or the seriousness of that harm for her to be a detained resident. She did not however adopt the reason set out as an option - “that it was not necessary in order to prevent harm to the relevant person that they are a detained resident” - which would have been the mirror of her first best interests assessment. Accordingly she concluded that Mrs B would be being unlawfully deprived of her liberty at the expiry of the First Standard Authorisation.

In my judgment, her reasoning in the assessment in support of those conclusions (which does not adopt standard reasons set out in Form AS4) is flawed primarily because she does not compare and contrast viable and practically available alternative placements. This view was a reason for my conclusion on 13 April 2010 (which was in line with the conclusion reached by the Official Solicitor, as Mrs B’s litigation friend) that Mrs B’s best interests were at that time served by her remaining at, and being deprived of her liberty at, the Residential Home. So far as I can see there was no material difference in the competing factors that were relevant to the best interests decision when it was made by Ms SP at the end of March and when it was made by the court on 13 April, none have been pointed out to me.

It is clear that those responsible for decisions relating to her care on behalf of the Residential Home and the Applicant did not agree with Ms SP’s best interests conclusions although they had either pointed out, recorded or recognised (and were therefore aware of) the factors relating to Mrs B’s distress, functioning skills and weight loss and thus the essential factors against her remaining at the Residential Home relied on by Ms SP in reaching her conclusion. These decision makers, the Official Solicitor and the court were inevitably faced with the problem of where Mrs B should reside if she no longer did so as a detained resident at the Residential Home and the risks of harm that would then exist.

In the reasoning set out in her assessment Ms SP considered whether Mrs B should return home to live with her husband with the benefit of 24 hour support and recorded that he did not feel able to accept this. Later in her reasoning she records that it was reported that Mrs B had hit out at co-residents on two occasions and that (and I agree) the likelihood that her husband will be able to respond appropriately without readily available support, given recent history, must be considered unlikely. To my mind, this indicates that Ms SP (in my view correctly) had concluded that it was not in Mrs B’s best interests to return home absent 24 hour (or very significant) support and thus as her husband was not willing to have this level of support that it would not be in her best interests to return home.

Where therefore was she to reside? Ms SP says (and I agree) that wherever it was decided Mrs B resides in the future she would need a secure environment and supervision along with a supportive response from carers to ensure that her practical and emotional needs are appropriately met at all times. Ms SP does not suggest how this could be provided in the short term without Mrs B being deprived of her liberty in the light of her acknowledgement of the risk of harm if she left the Residential Home of becoming anxious, disorientated, possibly getting lost or being vulnerable to exploitation from others outside the home, or otherwise. Also she does not suggest where this secure environment would be, but her suggestions as to what the care team should consider (namely whether she should be allowed to leave the Residential Home alone in the future (my emphasis) - whilst properly acknowledging the risks referred to above if she did - and that they should continue to review the care plan and the restrictions in place (my emphasis), it seems that she was envisaging that Mrs B should remain at the Residential Home at least whilst further investigations and assessments were made to see (a) whether she should move, and (b) as to the restrictions, if any, to her liberty at her place of residence whether it was a residential / care home or at her own home were appropriate.

I repeat that in my view correctly no criticism is made of Ms SP and I would like to acknowledge that:

Such issues both in the context of a possible return home and a continuation of residence away from home (a) during further assessment, and then (b) in the longer term have naturally been considered in the best interests assessments carried out during the proceedings.

I also agree with Ms SP’s view that legal advice should be considered as to what should be done. The Applicant did this but could not do so from the lawyer at the Council who normally dealt with such matters because she was on holiday. I pause to mention that they tried to contact the Court of Protection but were unsuccessful. The telephone number they used (which was included in a practice direction) was no longer the correct one. This problem and its knock on effects in contacting the court, and the DoL team there are being (or have been), addressed.

As appears in the chronology, the route chosen as a result of the advice obtained was for the Residential Home to give a further urgent authorisation, for it to be extended and for an application to be made to the Court of Protection.

They did this against the backdrop that Ms SP’s conclusion that Mrs B did not meet the best interests requirement placed them in a very difficult position on the ground as to what they should do with and for Mrs B. In effect their available choices were:

The central issue is therefore whether the choice that was made was in accordance with DOLS or otherwise rendered the deprivation of Mrs B’s liberty after the expiry of the first standard authorisation until the order of the court, lawful. As the Applicant and the Residential Home were clearly seeking an order from the court and acting in what they thought were Mrs B’s best interests the issues are in one sense technical ones. Nonetheless, they are important and disregarding the complexity of some of the provisions and technicality they are important because of their subject matter and because (as appears later) to my mind it is clear that of themselves such views on best interests by the managing authority and the supervisory body cannot of themselves render a deprivation of liberty lawful.

MB seeks the declaration I have referred to.

The Applicant County Council assert that there has been no breach of MB’s Article 5 rights for the following reasons:

The evidence indicates that points (i) and (iii) were introduced into the argument and the reasoning of the Applicant County Council after 13 April 2010 and thus that over the relevant period the decision makers at the Applicant and the Residential Home did not consider, rely on, or turn their minds to s. 4B MCA 2005. Indeed it seems from the fact that counsel for the Official Solicitor did not deal with points (i) and (iii) in her skeleton argument that she first became aware that these arguments were being advanced through the skeleton argument of counsel for the Applicant.

I am grateful for the helpful written and oral submissions of both counsel.

Before turning to the central point relating to the lawfulness and effects of the choice made by the Applicant and the Residential Home of giving and extending an urgent authorisation, against the background of an application to the court, I shall deal with timing issues that were raised.

The most relevant paragraphs of Schedule A1 to the MCA 2005 with my emphases in italics, are set out in Part 1 of the Schedule hereto.

The start of the authorisation of a deprivation of liberty based on an urgent authorisation. Common ground was reached during the hearing that as an urgent authorisation has to be in writing (see paragraph 79), and paragraph 88 provides that it comes into force “when it is given”, the period of the authorisation begins at the exact time that it was given on a particular day and does not commence (and cannot be deemed to have commenced) at the beginning of (or earlier on) that day. I agree.

I add that, in my view, this conclusion is supported by;

The present forms do not make provision for recording the exact time at which an authorisation is given and indicate that the identification of the day is sufficient. It was not argued before me that it was not. But to my mind, the identification of the period during which the authorisation is in force only by reference to the date on which it was given arguably does not comply with the obligation to state the period during which the authorisation is to be in force (see paragraph 80(c)) because it does not identify the start with sufficient particularity. But, I acknowledge that it is also arguable that the identification of the relevant day is sufficient to satisfy this requirement of paragraph 80(c) because the exact time when the authorisation was given can be ascertained if it becomes relevant.

However, whichever argument as to full compliance with paragraph 80(c) is correct, in my view it would be good practice to record the actual time at which an urgent authorisation was given on the form recording its grant and, in any event, a record of that exact time should be kept.

Further, no argument was addressed to me as to whether a failure to include the precise time at which the authorisation of a deprivation of liberty given by an urgent authorisation starts on a particular day in the document that gives it, renders that urgent authorisation ineffective.

My view (given without the benefit of argument and therefore provisionally) is that it would not because the relevant provisions in Schedule A1 are directory, rather than mandatory, and so such a failure to comply with them could not be said to render the authorisation of a deprivation of liberty ineffective, or not in accordance with a procedure prescribed by law.

The calculation of the maximum period of 7 days for an urgent authorisation and any extension of an urgent authorisation. It became common ground before me that these maximum periods should be calculated by including the whole of the day on which the urgent authorisation was actually given. This is clearly the prudent, and it seems to me the most practical, course to take. Also, it would accord with an approach that generally in calculating a period of days parts of a day are not taken into account (e.g. by analogy see s. 4 Interpretation Act 1978 but which in my view does not cover authorisations given under DOLS).

It was not argued whether an authorisation could run to a specified time on a day being the exact time of day on which it was given. Such an argument is for another day and, in my view, unless and until it is decided that this is lawful the maximum periods should be calculated by reference to, and expressed as being, the end of the relevant day.

So, in calculating whether an urgent authorisation, or its extension, exceeds the maximum of 7 days, I agree with the common ground before me that an approach that:

I pause to record that an urgent authorisation, and its extension, can end before the period set out in it (whether or not that is the maximum allowed).

The start of an authorisation of a deprivation of liberty based on a standard authorisation. For equivalent reasoning I have concluded that this period of authorisation starts either:

The maximum period of a standard authorisation. This is the shorter of the period indicated by the best interests assessor or one year (or other fixed period) (see paragraph 42).

The best interests assessor could specify a precise end time in the assessment (based on the likely starting date of the standard assessment). But, it may be easier and more natural for an assessor simply to state a period, as was done in respect to the first standard assessment (where one month was specified). If either:

Is there a gap between the first urgent authorisation and the first standard authorisation? On the approach set out above, the first day of the first urgent authorisation is 22 February 2010 and the last day of the 7 day maximum period is 28 February 2010.

The first urgent authorisation stated that it will come to an end on 1 March 2010. As a matter of language this could mean at the beginning or end of that day and thus at midnight on 28 February / 1 March or at midnight on 1/2 March. To my mind in the context of a period of authorisation the more natural meaning is the latter but I acknowledge that there is a good argument that if that took one beyond a permitted maximum the argument in favour of the former would be strong. So, here either the urgent authorisation by its term expired at midnight on 28 February / 1 March or by its terms (and the terms of paragraph 89(3) of Schedule A1) extended beyond the maximum allowed and the coming into force of the first standard authorisation.

So the key to whether there was a gap depends on when the first standard authorisation came into effect. There is no evidence as to when it was actually given apart from the date appearing on it. Assuming it was signed, and thus given in writing, on 1 March 2010 then, on the approach set out above, the authorisation it gives started at the time on that day when it was given and did not back date to the start of that day. On that assumption there is technically a gap in the authorisations of Mrs B’s deprivation of liberty between midnight on 28 February and 1 March (the end of the first urgent authorisation) and the start of first standard authorisation at some time during 1 March 2010.

Correctly in my view no relief was sought in respect of this gap.

I add that if the first standard authorisation had been given before 1 March, it could, and in my view would, have come into force at midnight on 28 February / 1 March and there would have been no gap.

The end of the first standard authorisation. As 29 March 2010 is within the month set by the best interests assessment I agree that the more natural interpretation of the authorisation is that it lasted until midnight on 29 March 2010.

The period of the authorisation given by the second urgent authorisation if it could be lawfully given. A number of potential points arise which were understandably not fully argued. Further, they are academic because I have concluded that the second urgent authorisation could not be given and so the following arguments are for another day:

The start and duration of the authorisation of a deprivation of liberty given by a court order. This was not argued before me but my preliminary view is that it starts at the exact time that the order is made and the court should define when it comes to an end with care to, for example, avoid gaps between orders.

In my view, the issues arguments and conclusions set out above demonstrate that:

In interpreting the relevant provisions of the MCA 2005 and its Schedules in respect of this and the other aspects of the case I accept the submission made on behalf of the Applicant that the underlying principles applied by the ECHR to Article 5 support the view that a strict and inflexible interpretation of them that requires managing authorities, supervisory bodies and the courts to take a course that might fail to protect a detained resident’s best interests, should not be adopted. Also I have not forgotten s. 3 of the Human Rights Act 1998.

The most relevant paragraphs in Schedule A1 to the MCA 2005 are set out in Part 2 of the Schedule hereto.

The Applicant submitted that paragraph 77 of Schedule A1 prevents the giving of continuous urgent authorisations and so did not prevent the giving of the second urgent authorisation in this case, because it followed the first standard authorisation. I disagree.

In my judgment, the natural meaning of paragraphs 75 to 77 read alone, and within the scheme, is to prevent the giving of the second urgent authorisation.

Paragraph 75 provides that an urgent authorisation can only be given if the managing authority are required to give it by paragraph 76 which sets out two cases where this is required. Those cases relate back to paragraphs 24 and 25 (which impose obligations to seek a standard authorisation) and refer to a belief that the need for the relevant person to be detained is so urgent that it is appropriate for the detention to begin before the request [for a standard authorisation] has been made / disposed of. So it is only when (a) such an obligation to make a request for a standard authorisation has arisen, and therefore (b) such a belief exists, that an urgent authorisation can be given.

Here the first urgent authorisation was given as a result of the request for the first standard authorisation made in pursuance of the obligation imposed by paragraph 24. It was made under paragraph 76(2) (and so before the application was made) but it, and the request, do not indicate which of the second and third cases set out in paragraph 24 was thought to apply (but it seems that it was the third case because, it seems from the reasons given that the Residential Home thought that diversion therapy would not succeed in preventing Mrs B from going home as she was saying she wanted to do).

In my view correctly, no point was taken that a managing authority cannot give an urgent authorisation when the third case in paragraph 24 applies and thus the detention has begun before the request for a standard authorisation is made. In my view the language in which the relevant belief is expressed in paragraph 76(2) does not found this view. This is because the timing relates to the making of the request and not to the actual start of the detention. It would also be contrary to the scheme of the provisions, because (a) the relevant person could be detained on, or immediately after, being accommodated without the obligation under the first case having arisen prior to the start of that accommodation, and (b) in such a case the scheme of the provisions envisages that an urgent authorisation should be given.

The first standard authorisation was the original authorisation (referred to in paragraph 77) and it was given in respect of the detention of Mrs B at the Residential Home that triggered (a) the giving of the first urgent authorisation, and (b) the obligation to request the first standard authorisation of that detention of Mrs B at the Residential Home. That is the detention which continued and is the existing detention referred to in paragraph 77.

Paragraph 77(2) prevents a new urgent authorisation in respect of that detention (i.e. the existing detention)and thus the giving of the second urgent authorisation (and its extension).

It is the obligation imposed by paragraph 24 or 25 to make a request for a standard authorisation that triggers the relevant chain of events and so it can start a new application of the authorisation machinery in respect of a person who (a) has been subject to it at a particular place, (b) but then for period is no longer deprived of liberty there, and (c) is then again deprived of his liberty there.

So paragraph 77 is not directed to preventing continuous or only continuous urgent authorisations as suggested by the Applicant.

Further, the Applicant did not identify in evidence or submission the obligation to make and/or the request for a standard authorisation they relied on to trigger the duty to give the second urgent authorisation. There would be two possibilities either:

I am of this view because, although in the minds of the Residential Home and the Applicant at the end of the first standard authorisation the third case in paragraph 24 remained satisfied that belief and paragraph 24 cannot be looked at in isolation. Rather they must be considered with in particular paragraphs 74 to 77.

When this is done the fact that the request for the second standard authorisation was disposed of on the basis that the Applicant was precluded from giving a further standard authorisation is plainly relevant. Once this was known to the Residential Home they also knew that the period to which an urgent authorisation is directed (i.e. the period until the request is disposed of – see paragraph 76(3)(b)) had come to an end. Further, even if the second urgent authorisation could have been founded on the earlier obligation to request (and the request for) the second standard authorisation it would have ended pursuant to paragraph 89(4) by, at the latest, the receipt of the written notice dated 1 April 2010.

No further request for a standard authorisation was made.

Without the benefit of argument and therefore provisionally, it seems to me that theoretically such a request should and could have been made and pursued because the Residential Home and the Applicant thought that the third case set out in paragraph 24 was satisfied. I say theoretically because it would not have led anywhere, unless the best interests assessor had changed her mind.

This is because:

So if such a further request had been made the continued detention of Mrs B could not have been authorised under DOLS by an urgent authorisation, or until a further standard authorisation was given. Also on the ground, the conflict with the best interests assessor would have remained and therefore in practice under DOLS and the MCA the only effective basis for obtaining immediate and continuous authorisation was to obtain it from the court.

An application to the court was planned and made. But it cannot found, or be a basis for the giving of, any urgent authorisation under DOLS as an interim measure (providing authorisation) pending the making of a court order. Rather, in the context of an application to the court, immediate interim relief that would authorise a continuation of a deprivation of liberty can be granted by the court.

I was not referred to, and have not found, any express provision directed to the effect of an urgent authorisation that is not given in accordance with the relevant provisions (and contrary to the prohibition in paragraph 77) but I agree with the effective common ground before me that such a purported authorisation does not render a deprivation of liberty lawful under domestic law.

It follows that in my view the choices made and thus the course taken by the Residential Home and the Applicant did not render Mrs B’s continued deprivation of liberty lawful.

Sections 4A and 4B provide (with my emphases):

Life sustaining treatment is defined in s. 4(10) as:

“treatment which in the view of a person providing health care for the person concerned is necessary to sustain life”

the terms life saving treatment and the definition of a vital act (rather than that term) are used in ss. 6(7) and 26(5) to define the purposes of an act for which protection is given to the person doing it whilst a decision is sought from the court in the context of conflict concerning respectively (a) decisions made (within the scope of their authority) by a donee under a lasting power of attorney or a deputy, and (b) an apparent advance directive.

In my view, it is therefore clear from:

Rather the concepts are relevant as a constituent of provisions that (outside DOLS) provide interim protection pending a decision by the court applying the best interests (or other appropriate) test. Put another way, although either (a) the prevention of a serious deterioration in P’s condition (which I agree covers both mental and physical conditions together with their symptoms and manifestations), or (b) the giving of life sustaining treatment, is inevitably a very important (and often – but not necessarily - a determinative) factor in a best interests decision it is far from being a necessary ingredient in the factors that lead to a choice between alternatives on a best interests test.

As with, for example, the core protective provision of s.5 of the MCA 2005 the protection and authorisation given by s. 4B is dependent upon the person doing the relevant act having the relevant belief and in the case of doing “a vital act” that person must “reasonably believe the act to be necessary to prevent a serious deterioration in P’s condition”.

The relevant test is framed in ordinary English words that introduce elements of degree and judgment by reference to the relevant circumstances. Accordingly whether the test is satisfied, with the result that the protection and authorisation given by s. 4B applies, is a fact sensitive issue.

In my judgment, the fatal flaws in the attempt of the Applicant to now rely on s. 4B MCA 2005 flow from the points that:

The upshot of this is that Counsel for the Applicant had to advance this line of argument by identifying points in the evidence (as to observation and opinions made and expressed both before and after the period from the end of March to 13 April) that might have led the relevant decision makers to believe that the test set by s. 4B was satisfied. I accept that it is arguable that the points he drew my attention to could have founded such a belief and that it would have been a reasonable one. But:

Factors mentioned in (ii) were factors in the best interests decision. Their consideration in that context indicates that the best interests decision:

So, in my judgment, the deprivation of Mrs B’s liberty from the expiry of the first standard authorisation until the making of the order on 13 April 2010 was not authorised (and so rendered lawful) by s. 4B.

That conclusion is not based on the decision maker’s lack of knowledge of, or express consideration of, the section but my conclusion that the evidence does not establish that they held the relevant belief. I accept that for s. 4B to apply that an express application of the test set by it might not be essential and thus albeit that:

Application for an order. I agree with the Official Solicitor that absent express reliance on s. 4B MCA 2010 the Applicant could and should have applied urgently to the court for an interim order under ss. 4A, 16, 47 and 48. (Again without the benefit of argument and therefore provisionally it seems to me that s. 21A would not have applied because, although a standard authorisation had been given and questions had arisen as to the matters mentioned in s. 21A(2), the relief the court can give under s. 21A(3) would not have related to the problems that had arisen because there was no issue concerning the period of the first standard authorisation or the assessments relating to it).

If necessary, and even though there was a Bank Holiday, an application could and should have been made to the out of hours duty judge to seek an order authorising Mrs B’s continued deprivation of liberty.

I acknowledge that the Applicant experienced some difficulty in contacting the Court of Protection (and mention again that the underlying problems relating to this are being addressed and relate to an out of date telephone number in a practice direction and the procedures at the court relating to the DoL team). However, it is well known that there is a High Court Judge of the Family Division (and thus a judge of the Court of Protection) on duty 24 hours a day 365 days a year and the difficulties encountered did not impact the normal methods of making an application to that judge, rather they were a reason for taking that course.

Discussion with the bests interests assessor. The alternative of inviting the best interests assessor to change her mind so that a further standard authorisation could be given for a short period was not raised before me.

As to this possibility, I repeat that I accept that it is important that the assessors are independent and therefore I accept the force of the guidance in paragraph 4.16 of the DOLS Code of Practice that supervisory bodies should not “dictate or seek to influence” decisions made by best interests assessors. Also, there may be (a) points that once they have signed off their assessment (by completing Form AS4 or otherwise) they are functus, or should not change their view, and (b) other points that parties might seek to argue as to this possible alternative.

As mentioned earlier, my provisional view is that theoretically those discussions could have taken place in the context of a further request for a standard authorisation but, in my view, (a) that request would not have given continued authorisation, and could not found a further urgent authorisation, and (b) absent a relevant change in circumstances that impacts the view of the assessor, such discussions should generally (if not always) take place in parallel with an application to the court.

So, I confine myself to saying that it seems to me that best interests assessors faced with difficulties such as those faced by Ms SP, or other difficulties that lead them to conclude that the court should be involved, and/or that there are strong arguments why deprivation of liberty should not continue without further and immediate assessment, should consider whether given the choices immediately and practicably available it would remain in the best interests of a person to be remain detained, in the short term, pursuant to a standard authorisation of limited duration. In many cases this would be likely to involve the consideration of the impact of a move that might only be for a short time or which does not satisfy the identified needs of P.

Further, in my view, like the court, the best interests assessors should be considering available alternatives and thus solutions that are, or might in practice become or be made available. This will involve a consideration of the impact, difficulties and timings involved in a move and/or a change by reference to the actual alternatives available if P can no longer be lawfully deprived of his liberty at his existing placement (see further the comments below under the heading “Lessons to be learned / Guidance – Background and in particular those relating to G v E and others[2010] EWHC 1115).

Background. The Applicant correctly pointed out that problems can arise:

As a background to this invitation, and the submissions made on behalf of the Applicant concerning the actions taken in the light of the difficulties in this case, counsel for the Applicant drew my attention to the following points, which I accept, namely:

But, for the reasons I have explained, these points and the difficulties that arose in this case:

Lessons to be learned / guidance / good practice. These are:

The relevant parts of Article 5 of the ECHR provide:

“1.

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ...

(e)

the lawful detention … of persons of unsound mind …;

4.

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a Court and his release ordered if the detention is not lawful. ”

As submitted on behalf of the Applicant:

The relevant domestic statutory provisions are found in the MCA 2005 and Schedules A1 and 1A thereof. In addition there are standard forms. The provisions are lengthy and quite complicated but, as I have explained, they:

In support of this line of argument, based on whether the deprivation of liberty was arbitrary, the Applicant relied on Winterwerp v The Netherlands (1979-80) 2 EHRR 387, in particular at paragraph 49, in which the ECtHR held that a delay of two weeks in the renewal of a detention order could not be regarded as unreasonable or excessive, and, as a result, did not involve an arbitrary deprivation of liberty.

But, it seems that the relevant domestic law in the Netherlands was to the effect that where a request has been made to the court for the prolongation of an order authorising detention it remains valid from its expiry to the date that the court decides whether to extend it (see the second paragraph and the first sentence of the third paragraph within paragraph 49). This is an equivalent provision to (a) s. 4B, if it applies, and (b) paragraph 63(3) of Schedule A1.

In my view, the last part of paragraph 49 of the judgment in Winterwerp beginning with the word furthermore is not authority for the proposition that a short period of continuation of detention that is not unreasonable or excessive is in accordance with a procedure prescribed by law and thus not a breach of Article 5. Rather, it seems to me that this passage is referring to a possible argument that a long delay in obtaining the order of the court (and thus a long period of prolongation of the authorisation given by the earlier and time expired order) could render that prolonged period of extension of the authorisation of detention arbitrary, unreasonable or excessive.

I accept that:

I grant the declaration sought by the Official Solicitor on behalf of Mrs B.

In respect of Urgent Authorisations:

“78(1)If the managing authority decide to give an urgent authorisation, they must decide the period during which the authorisation is to be in force.

(2)

That period must not exceed 7 days.

79An urgent authorisation must be in writing.

80An urgent authorisation must state the following things–

(a)

the name of the relevant person;

(b)

the name of the relevant hospital or care home;

(c)

the period during which the authorisation is to be in force;

(d)

the purpose for which the authorisation is given.

82(1)This paragraph applies if an urgent authorisation is given.

(2)

The managing authority must keep a written record of why they have given the urgent authorisation.

(3)

As soon as practicable after giving the authorisation, the managing authority must give a copy of the authorisation to all of the following–

(a)

the relevant person;

(b)

any section 39A IMCA.

84(1)This paragraph applies if the managing authority make a request under paragraph 77 for the supervisory body to extend the duration of the original authorisation.

(2)

The managing authority must keep a written record of why they have made the request.

(3)

The managing authority must give the relevant person notice that they have made the request.

(4)

The supervisory body may extend the duration of the original authorisation if it appears to them that–

(a)

the managing authority have made the required request for a standard authorisation,

(b)

there are exceptional reasons why it has not yet been possible for that request to be disposed of, and

(c)

it is essential for the existing detention to continue until the request is disposed of.

(5)

The supervisory body must keep a written record that the request has been made to them.

(6)

In this paragraph and paragraphs 85 and 86–

(a)

"original authorisation" and "existing detention" have the same meaning as in paragraph 77;

(b)

the required request for a standard authorisation is the request that is referred to in paragraph 76(2) or (3).

85(1)This paragraph applies if, under paragraph 84, the supervisory body decide to extend the duration of the original authorisation.

(2)

The supervisory body must decide the period of the extension.

(3)

That period must not exceed 7 days.

(4)

The supervisory body must give the managing authority notice stating the period of the extension.

(5)

The managing authority must then vary the original authorisation so that it states the extended duration.

(6)

Paragraphs 82(3) and 83 apply (with the necessary modifications) to the variation of the original authorisation as they apply to the giving of an urgent authorisation.

(7)

The supervisory body must keep a written record of–

(a)

the outcome of the request, and

(b)

the period of the extension.

88An urgent authorisation comes into force when it is given.

89(1)An urgent authorisation ceases to be in force at the end of the period stated in the authorisation in accordance with paragraph 80(c) (subject to any variation in accordance with paragraph 85).

(2)

But if the required request is disposed of before the end of that period, the urgent authorisation ceases to be in force as follows.

(3)

If the supervisory body are required by paragraph 50(1) to give the requested authorisation, the urgent authorisation ceases to be in force when the requested authorisation comes into force.

(4)

If the supervisory body are prohibited by paragraph 50(2) from giving the requested authorisation, the urgent authorisation ceases to be in force when the managing authority receive notice under paragraph 58.

(5)

In this paragraph–

•

"required request" means the request referred to in paragraph 76(2) or (3);

•

"requested authorisation" means the standard authorisation to which the required request relates.

(6)

This paragraph does not affect the powers of the Court of Protection or of any other court. ”

In respect of standard authorisations:

“42(1)The assessor must state in the assessment the maximum authorisation period. {Note: this is the best interests assessment}

(2)

The maximum authorisation period is the shorter of these periods–

(a)

the period which, in the assessor´s opinion, would be the appropriate maximum period for the relevant person to be a detained resident under the standard authorisation that has been requested;

(b)

1 year, or such shorter period as may be prescribed in regulations.

50(1)The supervisory body must give a standard authorisation if–

(a)

all assessments are positive, and

(b)

the supervisory body have written copies of all those assessments.

(2)

The supervisory body must not give a standard authorisation except in accordance with sub-paragraph (1).

(3)

All assessments are positive if each assessment carried out under paragraph 33 has come to the conclusion that the relevant person meets the qualifying requirement to which the assessment relates.

51(1)If the supervisory body are required to give a standard authorisation, they must decide the period during which the authorisation is to be in force.

(2)

That period must not exceed the maximum authorisation period stated in the best interests assessment.

52A standard authorisation may provide for the authorisation to come into force at a time after it is given.

54A standard authorisation must be in writing.

55(1)A standard authorisation must state the following things–

(a)

the name of the relevant person;

(b)

the name of the relevant hospital or care home;

(c)

the period during which the authorisation is to be in force;

(d)

the purpose for which the authorisation is given;

(e)

any conditions subject to which the authorisation is given;

(f)

the reason why each qualifying requirement is met.

58(1)This paragraph applies if–

(a)

a request is made for a standard authorisation, and

(b)

the supervisory body are prohibited by paragraph 50(2) from giving the standard authorisation.

(2)

The supervisory body must give notice, stating that they are prohibited from giving the authorisation, to each of the following–

(a)

the managing authority of the relevant hospital or care home;

(b)

the relevant person;

(c)

any section 39A IMCA;

(d)

every interested person consulted by the best interests assessor.

(3)

The supervisory body must comply with this paragraph as soon as practicable after it becomes apparent to them that they are prohibited from giving the authorisation.

60A supervisory body must keep a written record of all of the following information–

(a)

the standard authorisations that they have given;

(b)

the requests for standard authorisations in response to which they have not given an authorisation;

(c)

in relation to each standard authorisation given: the matters stated in the authorisation in accordance with paragraph 55.

62(1)This paragraph applies where the managing authority request a new standard authorisation under either of the following–

(a)

paragraph 25 (change in place of detention);

(b)

paragraph 30 (existing authorisation subject to review).

(2)

If the supervisory body are required by paragraph 50(1) to give the new authorisation, the existing authorisation terminates at the time when the new authorisation comes into force.

(3)

If the supervisory body are prohibited by paragraph 50(2) from giving the new authorisation, there is no effect on the existing authorisation´s continuation in force.

63(1)A standard authorisation comes into force when it is given.

(2)

But if the authorisation provides for it to come into force at a later time, it comes into force at that time.

64(1)A standard authorisation ceases to be in force at the end of the period stated in the authorisation in accordance with paragraph 55(1)(c).

(2)

But if the authorisation terminates before then in accordance with paragraph 62(2) or any other provision of this Schedule, it ceases to be in force when the termination takes effect.

(3)

This paragraph does not affect the powers of the Court of Protection or of any other court.

65(1)This paragraph applies if a standard authorisation ceases to be in force.

(2)

The supervisory body must give notice that the authorisation has ceased to be in force.

(3)

The supervisory body must give that notice to all of the following–

(a)

the managing authority of the relevant hospital or care home;

(b)

the relevant person;

(c)

the relevant person´s representative;

(d)

every interested person consulted by the best interests assessor.

(4)

The supervisory body must give that notice as soon as practicable after the authorisation ceases to be in force.

66A request for a standard authorisation is to be regarded for the purposes of this Schedule as disposed of if the supervisory body have given–

(a)

a copy of the authorisation in accordance with paragraph 57, or

(b)

notice in accordance with paragraph 58.”

In respect of both authorisations:

“169Any notice under this Schedule must be in writing.”

Managing authority to give authorisation

74Only the managing authority of the relevant hospital or care home may give an urgent authorisation.

75The managing authority may give an urgent authorisation only if they are required to do so by paragraph 76 (as read with paragraph 77).

Duty to give authorisation

76(1)The managing authority must give an urgent authorisation in either of the following cases.

(2)

The first case is where–

(a)

the managing authority are required to make a request under paragraph 24 or 25 for a standard authorisation, and

(b)

they believe that the need for the relevant person to be a detained resident is so urgent that it is appropriate for the detention to begin before they make the request.

(3)

The second case is where–

(a)

the managing authority have made a request under paragraph 24 or 25 for a standard authorisation, and

(b)

they believe that the need for the relevant person to be a detained resident is so urgent that it is appropriate for the detention to begin before the request is disposed of.

(4)

References in this paragraph to the detention of the relevant person are references to the detention to which paragraph 24 or 25 relates.

(5)

This paragraph is subject to paragraph 77.

77(1)This paragraph applies where the managing authority have given an urgent authorisation ("the original authorisation") in connection with a case where a person is, or is to be, a detained resident ("the existing detention").

(2)

No new urgent authorisation is to be given under paragraph 76 in connection with the existing detention.

(3)

But the managing authority may request the supervisory body to extend the duration of the original authorisation.

(4)

Only one request under sub-paragraph (3) may be made in relation to the original authorisation.

(5)

Paragraphs 84 to 86 apply to any request made under sub-paragraph (3).