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CoP Judgement around fluctuating capacity

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CoP Judgement around fluctuating capacity

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Cross border mental capacity frameworks | Law Society of Scotland

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The Law Society of Scotland and Law Society of England and Wales have jointly developed an information note for solicitors in both jurisdictions providing clarity on the core provisions relating to mental capacity and incapacity law in the other jurisdiction to that in which they practice, the key differences between the two and key considerations relating to cross-border issues.

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Guidance note - DoLS equivalent assessments

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Guidance note - DoLS equivalent assessments

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A good example of transition plan which was a deprivation of liberty - ( from home into placement)

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A good example of transition plan which was a deprivation of liberty - ( from home into placement)

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[ New search] [ Printable PDF version] [ Help]
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court. IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

B e f o r e :

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Joseph O'Brien for the local authority
Lorraine Cavanagh QC and Ben McCormack for the parents
Francesca Gardner for the child through his Children's Guardian
Hearing date: 7 August 2020
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HTML VERSION OF APPROVED JUDGMENT
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Crown Copyright ©

Mrs Justice Knowles: Introduction
By an application dated 4 August 2020, the local authority applied pursuant to s.100 of the Children Act 1989 ["CA"] for permission to invoke the inherent jurisdiction in order that a young person, Z, might be deprived of their liberty in order to convey them from their family home to a residential school. The application required resolution as a matter of considerable urgency and so, on 6 August 2020, I appointed a Cafcass Children's Guardian for Z. Happily, the Children's Guardian was able to make his enquiries that day and attend the hearing on 7 August 2020.

The local authority was represented by Mr O'Brien; the parents were represented by Miss Cavanagh QC and Mr McCormack; and Z was represented by Miss Gardner. I am grateful to them for their assistance in this case and in particular, for the analysis of the relevant legal framework provided by Miss Cavanagh QC and Mr McCormack. I read a bundle of documents which included a moving statement from Z's father and a detailed transition and conveyance plan.

At the hearing and with the agreement of all the parties, I approved an order authorising the transition and conveyance of Z to his new school and, given a busy court list as urgent applications judge, I indicated that I would reserve my judgment. It struck me that a short judgment explaining my decision on the local authority's application might be of benefit to other local authorities faced by the difficulties with which Z presented.
Background
Z is a boy now aged fourteen years. He lives with his parents, A and B, and his younger sister, C. Z is an adopted child and may have been exposed to drugs and alcohol use pre-birth. His early life experiences are likely to have had an impact upon his attachments and relationships. His sister, C, was adopted when she was three years old and Z was five years old.

Z's parents began to need more support when, at the age of four years, Z was referred to Child and Adolescent Mental Health Services ["CAMHS"]. The family engaged with family-based attachment therapy in an effort to resolve Z's difficulties. However, his behaviour remained challenging in school and at home and, at the age of six years in 2012, Z was diagnosed with attachment difficulties and received an Education Health and Care Plan ["EHCP"]. He continued to have help from CAMHS and in 2016 he was diagnosed with autism, with traits of pathological demand avoidance, and attachment disorder. From 2016 to 2018, Z was difficult to care for as he was frequently violent to his parents. Z had obsessive-compulsive and intrusive thoughts together with a high level of anxiety.

From 2018 onwards, Z's behaviour in the home became increasingly violent and destructive, and the police were called to the family home on numerous occasions. His parents were the main target for Z's aggression and his sister also witnessed Z's uncontrolled and worrying behaviour. Z's parents did not wish to criminalise him, but they were frequently put in a situation where they felt unable to keep themselves and C safe.

Z and his parents received support from the adoption team until 2016. He attended mainstream school until this proved no longer suitable for him. In September 2017 he moved to a school offering enhanced resource provision for autism, where he was able to access a higher level of support with specialist teachers. That school's environment was sensitive to the needs of children with autism since it offered a lower stimulus environment with smaller class numbers and sensory breaks.

Z's parents are very committed to him and initially declined a referral for short respite breaks as they did not want him to feel rejected in any way. However, in August 2018, they accepted such support. Unfortunately, short lived links with carers and the long and slow pace of introductions meant that Z and his family did not get the respite they so clearly needed.

Sadly, Z's distress and anxiety at school increased over time and his behaviour became even more challenging at home. By November 2018 he had stopped attending school. In January 2019, Z began attending a pupil referral unit which was able to provide him with one to one support and a bespoke curriculum based on his complex needs. Initially, Z settled well but his attendance began to deteriorate, and it would take several hours each day of encouragement before Z would travel to the pupil referral unit. Once there, it was very difficult to support him to engage in any work and there was a constant risk of him absconding. As the pressure for Z to attend the unit increased, he became more challenging at home.

The local authority provided Z's family with training to teach them de-escalation techniques and other skills to manage his very difficult behaviour in the family home. Additionally, the family had intensive support, jointly funded by CAMHS and the local authority, to prevent the breakdown of Z's home with his parents and sister. Despite the efforts of his parents and the professionals working with the family, Z's violence towards his parents continued to escalate. In recognition that the home situation was untenable, the local authority funded home care to support his parents and began to look for a residential placement for Z.

In February 2020, Z began a transition to a residential school on the basis that he would spend 38 weeks a year living there. Unfortunately, the Covid-19 lockdown intervened and the transition plan was paused. The plan to return to school was resumed at the start of May 2020. On 8 May 2020 there was a significant incident in the family home when Z became highly dysregulated. He smashed security doors and damaged a door architrave in the living room. The parents and C had to retreat to her bedroom and call the police. Z was taken into police custody and returned home once he had calmed down. Calling the police was part of Z's safety plan as a police presence often helped Z to calm down and take his medication. Following this incident, a strategy meeting was held at which it was decided to expedite Z's return to school. He attended school for the first fortnight but by week three he refused to even get into the school transport.

On 22 June 2020 there was another police call out after Z pulled a bannister from the stairs and threatened to and indeed tried to attack his parents. They retreated to C's bedroom and barricaded the door. The police attended to calm Z before the parents and C could leave her bedroom. A further professionals' meeting on 24 June concluded that Z required another placement as the transitions to and from school under a 38-week plan were proving too difficult to manage. On 13 July 2020, a 52-week placement for Z was agreed at a school some two hours' distance from the family home. When told about this placement on 22 July 2020, Z became verbally aggressive to his mother, smashed his iPad in the car and punched and broke the screen on the car stereo.
Z: Diagnosis, Behaviour, Wishes and Feelings
As already indicated, Z had a diagnosis of autism with pathological demand avoidance traits. He also had obsessive-compulsive and intrusive thoughts together with high levels of anxiety. He struggled to manage his emotions and could easily become dysregulated. He had massive difficulties in managing any perceived demands and it was clear that there was a correlation between increased demands on Z, for example, in the school environment, and his violence and challenging behaviour at home.

Young people with attachment difficulties and autism often have difficulty transitioning between environments and are likely to find this stress inducing. Z had difficulties in both these areas, making the transition between home and school especially difficult for him. Z wished to remain at home with his parents and he did not want to hurt his family but was not always able to control his anger and physical outbursts.
Proposed Placement
The proposed placement was a school with expertise in caring for boys with autism and pathological demand avoidance. The staff were also experts in caring for children with social and emotional mental health needs including attachment disorders and obsessive-compulsive disorder. There were other young people attending the school who had a similar presentation to Z. The school was available to Z for 52 weeks each year and his parents chose it as the most suitable specialist residential school for Z. Should Z settle well and his needs change in the future, he would be able to reduce the time spent at school and increase the time spent at home.

Z's parents considered that he had created a "mental prison" for himself at home in which he was bored and frustrated but from which, because of his autism and anxiety, he could not escape. They accepted advice from his treating psychologist that Z would not engage with therapy when living at home and needed to have his situation changed for him in the hope that, in a different environment, he could learn to overcome his anxiety and obsessions.

Z was very distressed by his own behaviour and violence. He told his parents repeatedly that he did not like himself but that he cannot stop his behaviour. In addition to not wishing to criminalise Z, his parents were and always have been clear that his behaviour is not criminal. Z was a young person living with disability and mental illness and his problems, including his violence and destructive behaviours, were a direct result of his mental health condition.

Both the local authority and Z's parents agreed that his placement in the residential school did not require court authorisation and the parents indicated they would consent to Z being accommodated pursuant to s.20 of the Children Act 1989. Additionally, the use of reasonable force to manage Z's behaviour in school would be authorised by s.93 of the Education and Inspections Act 1996.
The Transition Plan
Z's parents and the professionals working with him were clear that it was extremely unlikely that Z would go to his new school voluntarily. To facilitate Z's transition to his new school, a plan was devised with the input of Z's parents. It represented an appropriately staged approach using the least interventionist measures possible to encourage Z to travel to school willingly.

The plan was intended to be undertaken over a period of five days and was graded, starting with the least invasive options. On day one, Z would be told by his parents that he has a place at a residential school and invited to watch an online virtual tour of the premises. His parents would also give him information about the school which had been adapted to Z's needs. On day two, a member of the school staff who had already met Z would come to the family home to talk to Z, tell him more about the school and answer his questions. On day three, his parents would invite him to travel together with them to his new school. If he refused, he would be told that staff from the local authority would be coming to speak to him the following day to find out what might help him travel to school.

On day four, the two local authority social workers, at least one of whom was known to Z, would visit and encourage Z to travel to school with them. If Z refused to travel with the social workers, he would be told that, on the following morning, he could decide to go to the school with his parents. If he did not go with his parents, then the local authority would take him to school using secure transport. He would be given information about secure transport before the social workers left.

On day five, Z would be asked by his parents to travel to school with them. If he refused, staff from a company experienced in transferring mental health patients into hospital would engage with Z and encourage him to travel with them to school. If he became dysregulated, he would be offered his medication to calm him. If, however, he refused his medication and his behaviour became unsafe, the police would be called. In the past this has been helpful in calming Z and may also reduce the likelihood for physical restraint. Once Z was calmer, he would be offered the choice to safely access the car independently. The transport staff would make it clear that they were not there to "fight" Z but to help him make a necessary transition. Staff would guide Z into the car by gently leading him by the elbow or with an arm around his back. If this was ineffective, Z would be allowed to calm down though it was eventually envisaged that staff would physically hold him and lead him to the car. Once Z was in the car, his parents would follow that vehicle in their own car all the way to Z's new school.

Though the parents hoped that the presence of the police would be sufficient to effect Z's removal from the family home, they have concluded that Z may need to be placed into the car by restraint if this was necessary. They recognised that all the professionals involved must be equipped with the authority to move seamlessly to a position of taking Z with them by holding onto him and guiding him into the car if this became necessary.

There was a degree of urgency to effect Z's move to school as: (a) once aware of the plan, Z would become dysregulated; (b) there was an ongoing risk of physical harm to the parents and C occasioned by Z's behaviour; (c) the current safety plan in the family home was ineffective; (d) Z needed to settle into school before the start of the school term at the end of August and before C started secondary school beginning of September; and (e) Z's mother was on holiday in the transition week and would not be able to take holiday thereafter. It was not in Z's best interests for Z to transition to school whilst his mother was at work.

It was obvious from the above that the transition plan foresaw Z being deprived of his liberty during the journey to school and being subject to both physical restraint and chemical restraint by means of medication.
The Legal Framework
Section 100 of the CA requires a local authority to seek the court's permission to apply to invoke the inherent jurisdiction. Section 100(4) provides that permission be granted only if the court is satisfied that:

a) the result which the authority wish to achieve could not be achieved through the making of any order of the kind to which subsection (5) applies; and

b) there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child is likely to suffer significant harm.

The question of leave turns on whether there is an alternative statutory means to achieve the same ends.

Parents can, pursuant to the exercise of their parental responsibility, permit or authorise the use of reasonable force on a child particularly if the child will suffer immediate and significant harm by them not so acting: see A Metropolitan Borough Council v DB [1997] 1 FLR 767 per Cazalet J at 777:

"The local authority, which also has parental authority under the care order, is empowered, like the mother, to take such steps as may be appropriate to protect the best interests of the child; that in my view can permit the use of reasonable force for the purpose of imposing intrusive necessary medical treatment on her where a life-threatening situation arises or where a serious deterioration to health may occur if appropriate treatment is not administered"

In this jurisdiction, I note the ambit of parental responsibility to delegate reasonable and measured chastisement of one's child is long-standing in the common law: see R v Hopley [1860] EW Misc J73; (1860) 2 F&F 202; 175 ER 1024.

The transition plan may amount to a deprivation of liberty pursuant to Article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights). In so far as is relevant, Article 5(1) provides that:

"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 –
d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e) the lawful detention of persons.... of unsound mind...."

In Cheshire West and Chester Council v P and another [2014] AC896, Lady Hale said at [37]:

"... what is the essential character of a deprivation of liberty? ... three components can be derived from Storck..., as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state."

Where all three components of Storck are satisfied, then there is a deprivation of liberty within the meaning of Article 5(1) which therefore engages the state's obligations under Articles 5(2)-(4) ( Storck v Germany (2005) 43 EHRR 6 at paras 74 and 89).

Manifestly, the arrangements proposed were attributable to the state given that the local authority would be arranging the transition plan.

With respect to the objective test, Sir James Munby P (as he then was) held in Re A-F (Children) [2018] EWFC 138 (Fam) at [33] that:

"... whether a state of affairs which satisfies the "acid test" amounts to "confinement" for the purposes of the Storck component (a) has to be determined by comparing the restrictions to which the child in question is subject with the restrictions which would apply to a child of the same "age", "station", "familial background" and "relative maturity" who is "free from disability"."

In [43] Sir James Munby P further held that:

"...the best I can do, by way, I emphasise, of little more than 'rule of thumb', is to suggest that: (i) a child aged 10, even if under pretty constant supervision, is unlikely to be "confined" for the purpose of Storck component (a); (ii) a child aged 11, if under constant supervision, may, in contrast be so "confined", though the court should be astute to avoid coming too readily to such a conclusion; (iii) once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion. That said, all must depend upon the circumstances of the particular case upon the identification by the judge in the particular case of the attributes of the relevant comparator as described by Lord Kerr [in Cheshire West]."

The subjective test is met if there is an absence of valid consent to the arrangements which satisfy the objective test. It is not always permissible to rely on consent of parents in order to show that the subjective test is not met. In Re D (A Child) [2019] UKSC 42, the Supreme Court considered whether it was in the scope of parental responsibility to consent to living arrangements for a 16 or 17-year-old child which would otherwise amount to a deprivation of liberty within the meaning of Article 5. The Supreme Court, by a majority of 3 to 2 (Lord Carnwath and Lord Lloyd-Jones dissenting) determined it was not within the scope of parental responsibility for a parent to consent to living arrangements for a 16 or 17-year-old child which would otherwise amount to a deprivation of liberty. With respect to a child under the age of 16, Lady Hale at [50] said that, logically, the conclusion would also apply to any younger child whose liberty was restricted to an extent which was not normal for a child of his age but that question did not arise in Re D.

34. Furthermore, the reasoning of Mr Justice Keehan, the judge at first instance in Birmingham City Council v D (by his litigation friend, the Official Solicitor) [2016] EWCOP 8, as to the exercise of parental responsibility for those aged under 16, has not been questioned in the Supreme Court. Lord Carnwath noted that Lady Hale did not suggest that there was anything in the Strasbourg jurisprudence which would invalidate that aspect of Keehan J's judgment and concluded "... For the time being his reasoning remains the law, and as such appears to fit well with the new legislative scheme" [159].

In Birmingham City Council v D at [110], Keehan J stated that: "On the facts of Trust A v X, especially the loving and caring relationships that his parents had with him and the close working relationship they enjoyed with D's medical and other professions, I considered their decision to consent to D's confinement in Hospital to be a proper exercise of parental responsibility. To have held otherwise would, in my judgment, have resulted in unwarranted and unnecessary state interference in D's and his parents' family life."

If the court accepts that a deprivation of liberty arises (that is, all three components are satisfied), then the court must be satisfied that one of the cases in Article 5(1) is met. The most applicable in the circumstances of this case are either (d) or (e), namely:

"...No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

e) the lawful detention of persons... of unsound mind..."
Discussion
In this case there was no alternative statutory means to achieve the ends intended by the local authority. The court was asked to invoke the inherent jurisdiction to authorise only Z's move from home to school and not Z's placement at school or the use of force/restraint at school, all of which were covered by parental consent and legislation.

Coupled with the parents' consent, the following statutory schemes addressed the authorisation of any measures and detention of Z at his school placement. First, section 20 of the CA authorised the placement at school and provided Z with the legal status and ensuing protections of a looked after child. Second, section 93 of the Education and Inspections Act 2006, together with the Guidance entitled "Positive and Proactive Care: Reducing the need for restrictive interventions", Department of Health 2014 and "Use of reasonable force - Advice for headteachers, staff and governing bodies", Department for Education, July 2013, and section 550A of the Education Act 1996 provided, in combination, for staff at a school to use reasonable force in relation to a pupil for the purpose of preventing him committing an offence, causing personal injury (including to himself) or damage to property and engaging in any behaviour prejudicial to the maintenance of good order and discipline. Third, as Z was aged under 16 years and in accordance with the decision of the Supreme Court in Re D, the parents could lawfully consent to Z being deprived of his liberty as long as this was an appropriate exercise of parental responsibility.

Pausing there, I recognise that some of the more extreme circumstances that may arise in specialist schools for children with significant behavioural problems could fall outside of the boundaries of parental responsibility, whether delegated or not. Much will depend on the age of the child, the nature of the intervention and the potential for injury to a child or other person. Moreover, the Act contemplates the maintenance of good order or discipline of the school so the measures carried out by a trained behaviour management professional for one purpose may not be objectively reasonable if carried out by a parent for another purpose. There are limits to what a parent can reasonably authorise.

This case turned on the fact that the plan to move Z from his home required the authorisation of the use of force in respect to him. On being told that he had to go to a 52-week residential school, Z said he would lock himself away or defend himself. His parents believed that Z was determined to resist any move out of his home and, in those circumstances and given the history, Z's safety and the safety of everyone involved demanded a short and effective process which led seamlessly through the levels of intervention until Z was safely inside the car taking him to his new school.

I accepted the submissions of all the parties that what was contemplated here strained the boundaries of what was permitted by a parent with respect to the exercise of their parental responsibility. There was no immediacy of significant harm in this case as would be recognised by necessity. However, it was anticipated that Z would resist and that the level of restraint or force required to move him safely into the car would be outside that which might be considered reasonable chastisement of a child.

Additionally, acting to effect the transition plan based solely on parental consent, would deprive Z of any independent objective scrutiny of the proportionality of the measures contemplated. That scrutiny was unavailable under any statutory scheme and its absence provided further justification for invoking the inherent jurisdiction in this case.

I was satisfied that the local authority should be given permission to make the application pursuant to section 100 of the CA.

Turning to the transition plan, it was carefully graduated, and Z would be given every opportunity to go to the placement under his own steam. The restraints contemplated on day five of the plan meant that Z would be confined in a vehicle frame for a not negligible length of time and would be under the continuous supervision of carers. In blunt terms, he would not be free to leave the vehicle. If matters escalated to the worst factual scenario – the determined refusal by Z to leave the parental home -, then the circumstances of Z's removal from home into the secure vehicle and the conveyance against his will for a period of two hours followed by removal from the vehicle into the school represented a continuum of force and restraint when he was outside the care of his parents. The measures contemplated appeared to be at, if not beyond, the limits of what a parent could consent to within the proper exercise of their parental responsibility. Moreover, if the worst-case scenario were reached, the components of the detention that involved force were indivisible from the restraint in a confined place (a secure vehicle with persons and locks to prevent Z leaving that vehicle) so as to render the parents' or the child's own consent (even if competent) beyond the scope of what they could lawfully agree.

I was satisfied that, in relation to the objective test of confinement, the plan satisfied that criterion.

With respect to the subjective test, I was also satisfied that, for the reasons outlined above, it was neither permissible to rely on Z's consent nor that of his parents. Finally, the deprivation of liberty arising out of the transition plan would be attributable to the state given that the local authority would be responsible for the arrangements.

In those circumstances, the plan represented a lawful basis for confinement within the meaning of either Article 5(1)(d) or Article 5(1)(e). It was both necessary and proportionate, being the least restrictive regime for transition which was compatible with Z's welfare.

Z's parents had responsibly made appropriate parenting decisions for their son on the advice of the local authority and his treating psychologist. His school placement had been chosen with great care and all were satisfied that his complex needs could be met at his new school. He had an urgent need to access the support, therapy and education that the school could offer though it was accepted that this was likely to be very upsetting for him initially but would be very beneficial to him in the long term. His parents had given section 20 consent to the local authority to manage the placement.

Considerable thought had been given to the transition plan which required to be urgently implemented. The history indicated the severe pressures on Z's parents and sister arising from Z's behaviour. The transition plan allowed repeated efforts to try and encourage Z to go to his new school willingly but and as a last resort, the plan contemplated the use of the minimum degree of force and restraint to convey Z to his new school.

I was satisfied that I should make declarations authorising (a) that it was lawful and in his best interests for Z to be conveyed from his home address to school and in so far as the conveyance between those two places amounted to a deprivation of his liberty, it was necessary and proportionate to the risk of harm to him; and (b) the local authority its employees, servants and/or agents were authorised to use reasonable restraint will force to give effect to the transition plan approved by the court. Those two declarations were made on the basis that the restrictions authorised were the least restrictive of Z's rights and freedoms and were at all times respectful of his dignity.
Conclusion
Following the hearing, I was informed that, in his own time and in his own way, Z had travelled with his parents to his new school rather than using the transport commissioned by the local authority. That journey was not without some difficulty when L became upset and threatened to jump out of the car. There were also some difficulties in getting Z to enter the school and he did so after about an hour. He toured the school and joined everyone for the evening meal. He remained upset but his parents were of the view that he appeared to be beginning to settle in school.

I very much hope that Z will benefit from his new school and, in due course, overcome his difficulties so that he may safely rejoin his family.

I commend Z's parents for the approach they have taken in what have been uniquely upsetting circumstance for them and their children. The statement made by Z's father radiated love and concern for his son. I wish them well as a family.

I also express my great thanks to the local authority staff and the other professionals who have worked with and supported Z and his family. The thoughtful care taken by them was obvious and commendable.

That is my decision.

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Z, Re (A Child: Deprivation of Liberty: Transition Plan) [2020] EWHC 3038 (Fam) (12 November 2020)

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New search] [ Printable PDF version] [ Help] This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.

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Mental Capacity and homelessness research

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Mental Capacity and homelessness research

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Use of the Mental Capacity Act 2005 with people experiencing multiple exclusion homelessness in England

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Funded by the NIHR Health and Social Care Delivery Research Programme (2023–2026)

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Deprivation of Liberty in the Shadows of the Institution

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“Deprivation of Liberty in the Shadows of the Institution” published on 29 Mar 2022 by Bristol University Press.

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INQUEST is the only charity providing expertise on state related deaths and their investigation to bereaved people, lawyers, advice and support agencies, the media and parliamentarians.

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Children and young people deprived of their liberty

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Children and young people deprived of their liberty

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This post began as a talk I gave for White Paper Conferences in February 2021 looking at the complex issues, both legal and practical, around deprivation of liberty orders for children of all ages. I will continue to update it.
The importance of freedom of movement.

Your freedom to come and go as you wish is very important and has been a protected right for centuries. From the ancient common law remedy of 'habeus corpus' we now look to Article 5 of the ECHR - everyone has the right to liberty and security of person. Being deprived of your liberty can only be lawful:

if you consent to it, or someone else is allowed to consent on your behalf, or

there is an existing legal framework that allows it, or

you apply to the court for a declaration that its lawful.

Deprivation of liberty means that someone is under continuous supervision and control and is not permitted to leave. It doesn't make any difference if the conditions are pleasant or necessary. It is defined by using the criteria set out in the case of Storck v Germany 43 EHRR 96, as confirmed in 2014 in the case of Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16

Confinement in a particular restricted place for more than a short period of time

lack of valid consent

attribution of responsibility to the State.

An obvious example of lawful deprivation of liberty is sending someone to prison after conviction of a criminal offence.

The current legal situation regarding depriving children of their liberty is a complex mixture of common law, the inherent jurisdiction, statute and European law. Although a child is defined as a person between 0-18, children aged 16 and over are treated differently to younger children.

We need to look carefully at the reasons behind any decision to restrict a child's liberty in order to identify the correct route to ensure that any detention is lawful. Sadly for family practitioners, The Children Act 1989 does not specifically address mental disorder, does not provide specific powers to enforce treatment, and does not provide specific safeguards for the rights of the detained patient. Family lawyers therefore may have to come out of their comfort zones when dealing with a case where a child needs to be deprived of their liberty. It may be that the family court is not the right place for such decisions to be made.

Why might a child be deprived of their liberty?

There are a variety of reasons why a decision is made to deprive a child of liberty.

Consent and exercise of parental responsibility.

In some circumstances, you can consent to your own confinement. Regarding children, parents may exercise 'parental responsibility' which means they are able to offer their own consent when a child cannot. The younger the child the less likely it is that the acceptable 'zone of parental authority' will be controversial - for example, when parents consent to a five year old receiving medical treatment. However, it has long been accepted by the courts that parental responsibility is a 'dwindling right' that diminishes as the child grows in age and understanding. Parental responsibility must also be exercised in the best interest of the child.

Once a child reaches the age of 16, they are treated differently to younger children - for example, they are presumed to be able to offer consent to medical treatment as if they were an adult. But what if a 16 year old does not have the mental capacity to make decisions? Can a parent then consent to a deprivation of liberty on their behalf? The short answer is no.

The Supreme Court in D (A Child) [2019] UKSC 42 (26 September 2019) held that a parent could not consent to deprivation of liberty once a child was 16, even if the child lacked capacity. Logically this should extend to younger children and require careful examination of what falls within the normal 'zone of parental control'. The key question was Do the restrictions fall within normal parental control for a child of this age or do they not? If they did not, Article 5 was engaged and the parent could not consent on the child's behalf.

However, as an indication of the complexity in this area and reasonable scope for disagreement, the court was split 3:2. The majority of those in support agreed that deprivation of liberty involved a fundamental human right and it could never be within the boundary of acceptable exercise of parental responsibility to deny a child a fundamental human right. Further, the court restated the principle set out in Cheshire West, that the living arrangements of the mentally disabled had to be compared with those of people who did not have the disabilities which they had. They were entitled to the same human rights, including the right to liberty, as any other human being. Even if they were deprived of their liberty for the best possible motives, they were still entitled to the protection of Article 5 so it could be independently ascertained that the arrangements were in fact in their best interests.

But, its interesting to consider one of the minority judgments. At para 151 Lord Carnwath said this:
Later in [Lady Hale's] judgment (para 48) she reinforces that view by equating deprivation of liberty with other "fundamental human rights" such as the right to life or freedom from torture. She argues that it would be a "startling proposition" that it lies within the scope of parental responsibility to authorise violation of such rights. I say at once, with respect, that I am not persuaded that such comparisons are fair or helpful. D's parents were not authorising the state to commit torture or anything comparable to it. They were doing what they could, and what any conscientious parent would do, to advance his best interests by authorising the treatment on which all the authorities were agreed. That this involved a degree of confinement was an incidental but necessary part of that treatment, and no more than that. On the President's view, with which I agree, they were not "authorising a violation of his rights", but rather exercising their parental responsibility in a way which ensured that there was no such violation.
So it looks as if there is scope for that argument to be potentially revived. The case of Re J: Local Authority consent to Deprivation of Liberty, [2024] EWHC 1690 (Fam) is interesting. This concerned J, a 14 year old with complex disabilities, including autism and ADHD. He lived in a care home with a high level of restrictions. The court was concerned as to whether a DoLs order was required and if so, could the parents and the LA consent to it?

The court considered that in reality for J 'imposing the restrictions sought is inevitable, unavoidable and overwhelmingly in his best interests'. The LA were concerned that it could not consent to J's confinement, in light of the Supreme Court's decision set out above. But the court referred to Lincolnshire CC v TGA [2022] EWCH 2323 and held that parents could consent for a child under 16 if the child was not Gillick competent and there was no dispute that deprivation was in the child's best interests. The court rejected the argument that the LA could not consent as it was an organ of the State and therefore any deprivation of an individual's liberty had to be by a procedure prescribed by law and subject to independent checks. The court did not agree that because the LA imposed the restrictions, it could not consent to deprivation as a corporate parent, pointing out that parents could consent to life changing medical treatment which was just as important a decision as one involving deprivation of liberty, and did not carry with it a requirement that the court intervene.

Therefore the LA should simply have regard to the 'core test' under section 33 (3)(b), is the decision one of 'such magnitude' that it cannot be made by the LA but must be made by court.

The Judge concluded
Therefore the decision to "deprive him of his liberty" is not in my view a decision of such magnitude as to fall outside the LA's powers, but rather an exercise of their statutory duties to him. In my view the LA have the power to consent to the restrictions and therefore to the deprivation of his liberty, and no DoLs order is needed.
Necessary treatment for mental illness

A child can be compelled to accept treatment for a mental disorder under the Mental Health Act 1983 or consent to their own informal admission to hospital for treatment section 131(2). Detention under the Mental Health Act provides the child with a number of important safeguards, such as the right to appeal against detention and a duty to ensure an age-appropriate environment (s 131A).

Necessary protection for the mentally incapacitated

The Mental Capacity Act 2005 applies only to children aged 16 or over. If a child over 16 lacks capacity to make decisions about their care or where they live, the Court of Protection can make these decisions for them (see section 16 (2) (a) MCA). This can allow, under sections 4A(3) and (4), that any one can deprive the child of his or her liberty if that is done to give effect to an order made under section 16 (2)(a). As Charles J made clear in Re NRA & Ors [2015] EWCOP 59 at para 41, this is a 'best interests test' so any 'care package' that imposes a deprivation of liberty is unlikely to be in a child's best interests unless it represents the least restrictive interference that is appropriate.

The Court of Protection jurisdiction runs concurrently with the inherent jurisdiction, as confirmed in Re D by Lady Black.

The Mental Capacity Amendment Act 2019 inserted a new Schedule to the MCA to set out a new administrative scheme for the authorisation of deprivation of liberty in order to enable care or treatment of a person who can't consent. Under Schedule AA1, a 'responsible body' will be able to authorise arrangements giving rise to a deprivation of a person's liberty in any setting, if satisfied that the necessary conditions are met, including that the arrangements are necessary and proportionate to prevent harm to the person and proportionate in relation to the likelihood and seriousness of harm to the person. This is now in force - see Part 2 Practice Direction 11A. In essence, it allows judges to decide non-contentious applications 'on the papers'. It is emphatically not a 'rubber stamping' exercise but allows for the 'judicial antennae' to be alert to any particular issues of concern in the case.

Once an authorisation has been given, there are a number of safeguards put in place for the person which include regular reviews of the authorisation by the responsible body or care home and the right to challenge the authorisation before the Court of Protection.

But note what the court have said abut the 'streamlined' procedure for 16/17 year olds in KL (A Minor: deprivation of liberty) [2022] EWCOP 24 . The court noted that the 'streamlined' procedure had not been developed with 16/7 year olds in mind, who are at a critical stage of their development and at the unavoidable cusp of transition from children's services to adults' services. Such cases are likely to require greater scrutiny from the court and local authorities would be unlikely to face criticism if they asked the court to make the orders and declarations needed at an attended hearing, where the child was represented.

There may be further changes ahead - as the Judge discussed in KL above, the 'streamlined' procedure may be replaced by a new scheme of 'Liberty Protection Safeguards' also introduced in the 2019 Act. There is no date yet for the implementation of the LPS but if they come into effect they will apply to people aged 16 or over and will not be restricted to arrangements in a care home or hospital. If LPS are implemented this will render the 'streamlined' process redundant and non-contentious authorisation of deprivation of liberty will become an administrative procedure. The court will retain a role to determine any challenge to the suitability of this procedure but at the moment it is not clear which court would carry out this function - there is a Working Group of the Court of Protection considering all this. Watch this space!

Detention by the police

See section 38 of Police and Criminal Evidence Act 1984. The custody officer must secure that any arrested child is moved to local authority accommodation unless it is not practical to do so, or once the child has reached the age of 12, that no secure accommodation is available and keeping him in other local authority accommodation would not be adequate to protect the public from serious harm.

Secure accommodation under the Children Act 1989

Use of section 25 of the Children Act 1989 and the accompanying regulations is a lawful way of depriving a child of liberty but it has proved not to be a 'straightforward' statutory provision. The inherent jurisdiction can be used to 'fill the gaps' but the courts are very clear - If section 25 applies it must be used as it provides statutory safeguards for the child. See Re X, Re Y [2016] EWHC.

This route has to be endorsed by court order; the consent of any party is not relevant - Re T (A child) (Secure Accommodation Order) [2018] EWCA Civ 2136.

The Regulations set out various safeguards for the child, such as ensuring that parents are informed and that the deprivation of liberty is regularly reviewed.

In essence, section 25 operates to make deprivation of liberty lawful if the child is subject to a care order or is 'looked after' by the LA under section 20 of the Children Act 1989 and:

the child has a history of absconding and is likely to abscond from any other description of accommodation; and

if the child absconds they are likely to suffer significant harm; or

if not placed in secure accommodation, the child is likely to injure themselves or another person.

Relevance of the child's age
A child younger than 13 can only be placed in secure accommodation if this is authorised by the Secretary of State under Regulation 4 - unless the child is 12 and has been arrested by the police.

If the child is 16 or older and lacks capacity under section 2 of the Mental Capacity Act, then the Court of Protection is the more appropriate venue. See B v RM MM AM [2010] EWHC 3801 for further consideration about transfer to and from the Court of Protection and Family Court.

If a child is over 16, a SAO can be made for children who are 'looked after' by way of a care order or under section 20(3) of the CA 1989. Under s 20(3) every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

An alternative route could be to rely on the court's inherent jurisdiction which is theoretically limitless, but cannot be used to circumvent section 100 of the CA, i.e. to put a child in the care of the LA or provide accommodation for the child. Therefore, as made clear in A City Council v LS & Ors (Secure Accommodation Inherent Jurisdiction) [2019] EWHC 1384 (Fam) the inherent jurisdiction could not be used to place a 17 year old who was not subject to a care order nor looked after by the LA.
Scotland and Wales
Wales now has a separate regime for secure accommodation under s.119 of the Social Services and Wellbeing (Wales) Act 2014 ("SSW(W) 2014"), although the provisions are substantially the same as under s.25 of the Children Act 1989.

A shortage of available secure accommodation in England lead to some children being placed in Scotland. This caused some problems about jurisdiction. Just because an order is lawfully made in England, does not mean it automatically is lawful in Scotland. See the judgment of the President of the Family Division in Re X, Re Y [2016] EWHC 2271 (Fam), para 1.

This problem has now been dealt with by The Children and Social Work Act 2017, Schedule 1 which simply amends section 25 of the Children Act to extend it to Scotland.
An application of last resort
This is a serious application and should only be made when there is no alternative - for example, it should never be used to punish a child for running away or being a nuisance. The courts have confirmed it is an order of 'last resort'

If there isn't a court order a child can only be held in secure accommodation for 72 hours every 28 days: see Children (Secure Accommodation) Regulations 1991, reg. 10. If the court makes an order, the first order can be made for an initial maximum period of 3 months and after that for further periods of up to six months. Time starts running from the date of the order.

Once the order is made, it can't be discharged unless the order was made incorrectly. If the child's circumstances change and the local authority think the secure accommodation order is no longer needed the courts have decided that the way forward is to apply for a writ of habeas corpus under RSC Order 54 . If the parents and the local authority disagree about whether or not it is still needed, the parents can make an application for judicial review.

How will the child make his wishes known to the court?

Under section 25(6) the court can't consider making a secure accommodation order if a child is not legally represented in court, unless the child decides not to apply for legal representation.

However, the court should usually appoint a guardian to represent the child under section 41(1) of the Children Act. The guardian will speak to the child and will give instructions to a solicitor; this will allow the court to say that the child is legally represented.

The guardian will recommend to the court what he thinks is in the child's best interest, but the child's welfare is NOT the ' paramount consideration' in these proceedings.

Rule 12.14 (3) of the Family Procedure Rules 2010 gives the court power to exclude a child who wants to attend court if it is in their interest to do so and they are represented although Rule 12.14(4) requires the court to give the guardian, the child's solicitor and child, if of sufficient understanding, the opportunity to make representations about the child's attendance.

When deciding whether or not a child should come to court, the starting point should be an evaluation of the consequences of attending or not attending upon the child's welfare taking into account the following factors. See Re K (A Child) [2011]

the age and level of understanding of the child

nature and strength of the child's wishes

the child's emotional and psychological state

the impact of influence from others

the matters to be discussed

practical and logistical considerations - how far would child have to travel?

the impact on proceedings - is the child likely to need to be restrained in court? If so that is usually a sufficient ground to refuse to allow the child to attend.

Issues to consider when applying for a secure accommodation order

There have been many practical difficulties in applications for secure accommodation and the courts have had to look very carefully about what 'secure accommodation' means, the relevant criteria under section 25 that justify the order, to what extent the child's welfare is considered in the balance and the over arching demands of proportionality.

The complex interplay of various statutory provisions must then be seen in the context of the nationwide shortage of accommodation which is designated as 'secure' to meet the necessary statutory requirements.

The case of B (Secure Accommodation Order) [2019] EWCA Civ 2025, tackled these questions head on. The court was very concerned that the lack of designated secure accommodation meant that the court was increasingly being asked to use its inherent jurisdiction to make it lawful to deprive a child of their liberty.

The court took a wide ranging review of available case law and considered submissions from the Association of Lawyers for children and set out the questions that a court must ask and answer before making a secure accommodation order. See para 98.

(1) Is the child being "looked after" by a local authority under section 20 of the Children Act 1989 or, alternatively, does the child fall within one of the other categories specified in regulation 7 (which are children accommodated by health authorities, NHS trusts, local educational authorities and children in residential care homes or nursing homes).

(2) Is the accommodation where the local authority proposes to place the child "secure accommodation", i.e. is it designed for or have as its primary purpose the restriction of liberty?

(3) Is the court satisfied (a) that (i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and (ii) if he/she absconds, he/she is likely to suffer significant harm or (b) that if kept in any other description of accommodation, he/she is likely to injure himself or other persons?

(4) If the local authority is proposing to place the child in a secure children's home in England, has the accommodation been approved by the Secretary of State for use as secure accommodation? If the local authority is proposing to place the child in a children's home in Scotland, is the accommodation provided by a service which has been approved by the Scottish Ministers?

(5) Does the proposed order safeguard and promote the child's welfare?

(6) Is the order proportionate, i.e. do the benefits of the proposed placement outweigh the infringement of rights?

However, this did not end the confusion of many practitioners and required further guidance from the President of the Family Division in February 2020. This guidance focused on the discussion by the Court of Appeal about the definition of 'secure accommodation' which was found to be "any 'accommodation designed for, or having as its primary purpose, the restriction of liberty'"

However, the President was clear that this does not mean that an application to place a child in such a unit must be determined via a s 25 secure accommodation application and he referred back to the questions asked and answered in the Court of Appeal judgment, stating that question 4 was the 'clincher'.
"It follows that, although an unregistered and/or unapproved secure placement may come within the definition of 'secure accommodation' within s 25, that accommodation cannot satisfy item (4) in the 'relevant criteria' with the result that a s 25 order cannot be made to authorise placement in that unit. In such a case any court approval would need to be sought under the inherent jurisdiction.
The bottom line is that Re B does NOT signal a need for the court to use s 25 to process applications for deprivation of liberty in a unit which is unapproved by the Secretary of State as 'secure accommodation'. Such applications should continue to be considered under the inherent jurisdiction. If the s 25 criteria are met, then, of course, s 25 should be used.

The inherent jurisdiction

If section 25 doesn't apply then the courts could rely on the inherent jurisdiction which is in theory a 'limitless' power of the High Court to make decisions if there is an apparent 'gap' in the statute law.

The case of Wakefield Metropolitan District Council & Anor v DN & Anor [2019] EWHC 2306 (Fam). Mr Justice Cobb provided a clear overview of how the inherent jurisdiction is used to authorise a deprivation of liberty of a vulnerable adult.

The court has found there is jurisdiction to make an order with regard to a 17 year old under the court's inherent jurisdiction, given the extraordinary circumstances of that case. See Re B (Secure Accommodation: Inherent Jurisdiction) [2013] The judge accepted the submission that the inherent jurisdiction of the High Court is theoretically limitless and in circumstances where the statutory code under section 25 is satisfied in relation to a 17-year old child (with the exception of the requirement that the child is looked after by the local authority), it is open to the court to exercise its inherent jurisdiction to direct that a child be detained in secure accommodation.

However, A City Council v LS & Ors (Secure Accommodation Inherent Jurisdiction) [2019] EWHC 1384 (Fam) points out there are problems when there is no care order as the inherent jurisdiction used when a child is 17 would have the effect of 'grant[ing] authority to the local authority to accommodate a child where the local authority would not otherwise be able to do so under the statutory scheme'

The court considered that Re B ought to be treated with caution.

First, the requirements of s 100(2) do not appear to have been the subject of detailed argument before the court. Second, whilst the court appears to have entertained doubts about whether the child could be said to be accommodated at [9] to [14], and to have perceived the significance of an answer in the negative, no final conclusion appears to have been reached by the court on that issue. Third, and importantly, before coming to its decision the court does not appear to have been referred to the decision of the Court of Appeal in Re E (A Child). Within this context, I am satisfied that there are reasons to doubt that Re B (Secure Accommodation: Inherent Jurisdiction)(No 1) was correctly decided

In re T (A Child) (Secure Accommodation) [2018] EWCA Civ 2136, the court was clear that it is fundamentally unsatisfactory that many young people were being placed in secure accommodation outside the statutory scheme in units that by definition had not been approved by the secretary of state as secure children's homes.

The appellant, T, was a 15-year-old child who was subject to a care order. The local authority wished to place T in secure accommodation but there were no places available in any registered secure children's homes. So the LA applied to the High Court for orders under its inherent jurisdiction authorising T's placement in non-statutory accommodation. T had consented to the restrictions on her liberty in the placements sought and submitted that the orders restricting her liberty were unnecessary. The Court of Appeal found that consent was not a relevant issue for the exercise of the inherent jurisdiction. T appealed to the Supreme Court, wishing to be recognised as capable of consenting in law.

The Supreme Court was asked to consider the following issues:

In circumstances where insufficient places are available in registered secure children's homes, is the exercise of the inherent jurisdiction to authorise a child's placement in unregistered secure accommodation lawful?

If it is, what legal test should the courts apply when determining whether to exercise the inherent jurisdiction?

Is a child's consent to the confinement of any relevance when determining whether to exercise the inherent jurisdiction?

JULY 30th 2021 - Judgment handed down
The Supreme Court dismissed the appeal and determined that use of the inherent jurisdiction IS permissible but expressed grave concerns about its use to fill gaps in the child protection system, due to lack of resources. The child's consent or lack of it did not determine the decision about whether a deprivation of liberty was permissible. Placement of a child in unregistered or unregulated accommodation must be a temporary solution, only if no other alternative available and reflects a 'scandalous lack' of provision. The full judgment is here

Children's homes and unregulated placements

The difficulties and tensions in relying on the inherent jurisdiction in this area, is the extent to which this may undermine a statutory or regulatory framework to make sure that accommodation provided for children by the state is fit for purpose and that the child's rights are protected. As a general rule, the more an area of law is controlled by statute and regulations, the more extreme the circumstances must be to justify the use of the inherent jurisdiction.

The Supreme Court noted the distinctions between 'secure accommodation' 'children's homes' and 'unregulated placements'

Secure accommodation is a secure children's home, designed and developed as such and approved by the Secretary of State for such use (the court comment at para 134 that it is 'hoped' no such homes would be in use without approval of the Secretary of State but that it was theoretically possible). This involves a 'locked setting' with a 'custodial complexion' - i.e. locked doors and windows, perimeter fences, high quality digital CCTV.

A children's home is defined as a place that provides care and accommodation wholly or mainly for children (excluding hospitals and most schools). Under the Care Standards Act 2000 and accompanying regulations, children's homes must be registered and it can be a criminal offence under section 11 of the Act to run an unregistered children's home

The Supreme Court found that this does not relieve the court from authorising placing a child in an unregistered placement if a failure to do so risks breach article 2 of the ECHR (the right to life) where there must be absolutely no alternative and the child or someone else is likely to come to grave harm if the court does not act (para 145). This must not be seen as the court authorising a criminal act. Practice Guidance issued by the President of the Family Division in 2019 made it clear that if a child is placed in an unregistered children's home then steps must be taken immediately to secure registration and keep the court informed of the registration process, which the court must oversee. If registration is refused and the home continues to operate, this does raise a risk of criminal prosecution.

An unregulated placement is one that is NOT a children's home, as it doesn't meet the definition of providing accommodation wholly or mainly for children - for example, a caravan or outward bound centre. The court was doubtful that such places could ever be suitable to deprive a child of liberty.

Regulation 27 of the Care Standard Act Registration Regulations 2010 puts a duty on a LA who is placing a child in unregulated accommodation to be satisfied that the accommodation is suitable. A new Reg 27A comes into force in September 2021 which limits the circumstances in which the LA can place a child under 16 in unregulated accommodation.

Section 22C(6)(d) deals with placement of children by the LA when they cannot be safely or practically placed with a parent or other person with PR. The LA then have to find a placement that it considers 'the most appropriate'. This can be with a friend or relative, a foster carer, a registered children's home OR subject to section 22D 'placement in accordance with other arrangements which comply with any regulations made for the purposes of this section'.

Section 22D confirms that a LA can make arrangements to place a child in an 'appropriate placement' when it is necessary and required as a matter of urgency.

Regulation 27A provides that a LA may only place a child under 16 in accommodation in England 'in accordance with' other arrangements under section 22C(6)(d) of the Children Act 1989 where the accommodation is in a

a care home, defined by section 105(1) of the Children Act 1989 as the same definition as the Care Standards Act - an establishment is therefore a care home if it provides accommodation and nursing/personal care for persons who are or have been ill, who have or have had a mental disorder, who are disabled or infirm and who are or have been dependent on alcohol or drugs

a hospital (defined by section 275(1) of National Health Service Act 2006

a residential family centre as defined in section 4(2) of Care Standards Act

A school, defined by section 4 of the Education Act 1996

a holiday scheme for disabled children, as defined in Reg 2(1) of the Residential Holiday Schemes for Disabled Children (England) Regulations 2013

To summarise; the court will need to know, if a child can't be placed with family or foster carers:

is the proposed placement is a children's home - which must be registered or immediately applying for registration

OR one of the establishments set out above in Regulation 27A for a child under 16

OR if no children's home or regulation 27A placement is available for a child under 16, if its urgent and necessary then the court may authorise a placement outside the regulations, in order not to be in breach of article 2 ECHR (right to life).

However, it is clear that no family court can override the operation of the criminal law so it remains to be seen what kind of risk of criminal prosecution would be faced by those operating unregulated placements. Hopefully a defence of necessity would be available. It is therefore very important that LA follow the Supreme Court guidance about what evidence the court needs to authorise an unregulated placement under the inherent jurisdiction.

See paras 155 and 172: the court must have evidence about

If the placement is a children's home, is it registered? If not registered, application must be made without delay and the court will oversee this process. If registration is refused but child remains in the placement then risk of criminal prosecution is more likely.

the provider of the service has confirmed it can meet the child's needs

the steps the LA are taking to assure itself that the premises and those who work there can give safe and suitable care

the proposed regime

justification of why proposed regime is necessary and proportionate

the child's views

Lord Stephens says at para 178:

I agree with Lady Black that recourse to the inherent jurisdiction in the fact of this scandalous lack of provision should be a temporary measure... I add my name to the list of judges who have called attention to this issue which is a scandal containing all the ingredients for a tragedy

See also the case of Tameside MBC v L (Unavailability of Regulated Therapeutic Placement) [2021] EWHC 1814 (Fam) where the court decided that it remains open to the High Court to use the inherent jurisdiction to authorise the deprivation of liberty of a child under 16, where the child will be living in a placement which is outside the statutory or regulatory scheme, provided that everyone followed the President's Guidance of November 2019 entitled Placements in unregistered children's homes in England or unregistered care home services in Wales and the addendum thereto dated December 2020.

The court set out the relevant principles to be applied in such cases:

It remains open to the High Court to authorise under its inherent jurisdiction the deprivation of liberty of a child under the age of 16 where the placement in which the restrictions that are the subject of that authorisation will be applied is prohibited by the terms of the Care Planning, Placement and Case Review (England) Regulations 2010 as amended.

In deciding whether to grant a declaration authorising the deprivation of liberty, the existence or absence of conditions of imperative necessity will fall to be considered in the context of the best interests analysis that the court is required to undertake when determining the application for a declaration on the particular facts of the case.

Whilst each case will turn on its own facts, the absence of conditions of imperative necessity will make it difficult for the court to conclude that the exercise of the inherent jurisdiction to authorise the deprivation of the liberty of a child under the age of 16 in an unregulated placement is in that child's best interests in circumstances where the regulations render such a placement unlawful.

It is not appropriate to define what may constitute imperative considerations of necessity. Again, each case must be decided on its own facts.

The court must ensure the rigorous application of the terms of the President's Guidance, which will include the need to monitor the progress of the application for registration in accordance with the Guidance. Where registration is not achieved, the court must rigorously review its continued approval of the child's placement in an unregistered home. Ofsted should be notified immediately of the placement. Ofsted is then able to take immediate steps under the regulatory regime.

The Judge said

However, I can observe that, in the experience of this court, the prohibition on placing children under the age of 16 in unregulated accommodation contained in the amended statutory regime is not coming into force on 9 September 2021 in the context of local authorities choosing to utilise such placements for vulnerable children in great need. Rather, it is coming into force in the context of local authorities having no choice but to employ such unregulated provision due to the well-recognised acute lack of appropriate provision.

Exercise of the inherent jurisdiction if a placement is in Scotland

The placing local authority will need to make application to the Scottish Court of Session within six weeks of the placement starting under the 'Nobile Officium' procedure, which will enable the English order to be approved by the Scottish courts. These applications appear to proceed without opposition but the LA will probably need to instruct a firm of solicitors in Scotland to make the application.

So what happens if a child under 16 is placed in an unregulated placement but there is no issue of deprivation of liberty?

I think this is an interesting and important point and at some time soon, the court is going to have to grapple with it head on. I had to deal with this issue in a recent case and gave the following advice to the local authority
The background

The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 prohibit placing a child under 16 in an unregulated or unregistered placement.

The courts have directed a great deal of energy and attention to those cases where an unregulated/unregistered placement for a child under 16 involved a deprivation of liberty (DoL), deciding that the court may authorise the DoL using the inherent jurisdiction (IJ) but this does not operate as a defence to any criminal proceedings that then arise because of the unlawfulness of the placement itself.

The courts have been asked to consider the application of the IJ more widely, but have refused. I note the reasons given in Tameside; the parties had insufficient time to prepare their arguments and the wider issue did not need to be determined in that particular case.

An issue arose in these present proceedings of a child who was too young to be subject to a DoL. At his young age, restriction of his liberty to safeguard him is within 'zone of parental authority' and does not require court authorisation.

This child was placed in an unregulated and hence unlawful placement. The court was asked to authorise this placement pursuant to the IJ and this was refused on the basis that the case law did not support this. The court suggested that urgent application was made to the High Court if the local authority wished to pursue that argument. The local authority did not consider it proportionate to do so, given that the unlawful placement would be ending soon.

The problem

The local authority is acting unlawfully in placing a child under 16 in such a placement. There is no ambiguity about this. The will of Parliament is clear. The reasons behind the law are also clear. We must be able to trust that placements for vulnerable and traumatised children are safe and well ordered.

However, the court is willing to make a care order even when the order sought is underpinned by an unlawful placement.

I think this raises doubt as to the legality of the care order itself. A care order should not be made to achieve an unlawful end. If the care order is made because in reality there is no other option but to keep the child safe, even though by so doing the will or Parliament is subverted, then this needs formal recognition by the court, using the IJ to authorise what the local authority is doing.

This ensures that the proper focus is kept on the decision to effectively 'endorse' an unlawful placement. I appreciate it cannot be offered as a 'defence' to any subsequent criminal or regulatory proceedings, but I suggest that the necessary analysis which underpins any operation of the IJ would be powerful evidence to advance as a reason of public policy why a prosecution should not proceed.

I am firmly of the view that by refusing to consider the exercise of the IJ in a case of this nature, this risks
the integrity of the court process and respect for the rule of law

making the local authority and other organisations more vulnerable to legal action

The Tameside case
MacDonald J in Tameside MBC [2021] EWHC 2472 (Fam) sets out a number of broad and general principles regarding the IJ which ought to be raised in cases of this nature.

The Secretary of State conceded [para 4] that where it is necessary to place a child in a particular place in order to prevent a breach of Art 2 or 3 rights, the local authority has a power, and possibly a duty, to place the child there. There is a 'positive operational duty' to protect life [para 66].

Where an area is 'populated by intense statutory regulation' the IJ should only be used in cases where there is a high degree of necessity [para 65]

The court must identify the legislative intent to exclude the IJ and should be slow to hold that an inherent power has been abrogated or restricted by Parliament [para 70]

The IJ has 'seminal importance' in respect to children [para 69], playing 'an essential role in meeting the need as a matter of public policy for children to be properly safeguarded'.

As recognised by Lady Black in the Supreme Court [para 77] it is 'unthinkable' that the High Court could not use its prerogative powers to protect a child where otherwise the child is at risk of significant harm

Local authorities are not choosing to break the law, but have no other choice. There are simply not enough secure, residential or foster placements for children who have no where else to safely be [para 93].

In short, I do not understand why the High and Supreme Courts are willing to grapple so minutely with issues of deprivation of liberty in unregulated or unregistered placements, but are not willing to grapple with the issue of the placements itself. The court is thus prepared to make a care order which is underpinned by an unlawful placement. A care order is also a draconian order, which breaches article 8 rights. I appreciate that the local authority did not consider it proportionate in this case to make further representations to the High Court and I do not disagree with that position. But I am sadly confident that this issue will not be restricted to this one case and it will at some point soon have to be taken head on.

Refusal to make a deprivation of liberty order

In An NHS Trust v ST (Refusal of Deprivation of Liberty Order) [2022] EWHC 719 (Fam) the court refused to authorise further deprivation of liberty for a 14 year old who ended up in hospital not due to any medical need but because her family could no longer cope with her violent behaviour and frequent absconding. She was subject to 4:1 supervision by staff on five day rolling contracts which meant she was unsettled and afraid by frequent changes of staff which led to further deterioration in her behaviour. She was admitted to hospital in February 2022 but no application was made to authorise the deprivation of her liberty until March 2022. The court found the placement in hospital was 'brutal and abusive' and offered not a single positive for the child - there was no plan for educational provision, no 'exit plan'. The court refused to authorise continuing deprivation of liberty at the hospital, commenting

it is deeply uncomfortable to refuse authorisation and to contemplate future uncertainties that will now pertain for ST. However, ST is now a looked after child and the local authority must find her an alternative placement pursuant to its statutory duty to provide accommodation for her and to safeguard and promote her welfare whilst in its care, under Part III of the Children Act 1989.

The local authority then provided a bespoke placement for ST and applied for authorisation to deprive her of liberty in that placement.

Beware 'mission' creep. In the case of Peterborough City Council v Mother & Ors [2024] EWHC 493 (Fam) (06 March 2024) the court was asked to determine if a severely disabled child was deprived of liberty due to the actions of the state, or as a consequence of the severe disabilities. The court determined that it was the latter, saying at para 31

This is a case where the LA's application takes the principles set out in Cheshire West to a logical but extreme conclusion that, in my view, defies common sense and is not required by the terms of the Supreme Court decision. It is important to note that Cheshire West was concerned with the three individuals' inability to consent to the deprivation of their liberty, and their apparent compliance with the restraints placed upon them. They were all physically capable of leaving the property, and would have been stopped if they had tried to do so. That is not the facts of the present case.

Further reading

Report from the Nuffield Family Observatory February 2022 summarising what we know about children and young people deprived of their liberty across welfare, youth justice and mental health settings in England and Wales from national administrative data and recent research studies.

AB (A Child : human rights) [2021] EWFC B100 (01 April 2021) A case where a 13 year old was unlawfully deprived of their liberty in a residential unit

Protection of Children Who are 17 - Family Law Week

June 2023 Research from the Nuffield Foundation Legal outcomes of cases at the National Deprivation of Liberty Court - serious concerns raised about the number of unregulated placements and the severity of the degree of restrictions on children.
REVISED PRACTICE GUIDANCE ON THE COURT'S APPROACH TO UNREGISTERED PLACEMENTS

This Guidance replaces the 2019 Practice Guidance: Placements in unregistered children's homes in England or unregistered care home services in Wales, and the 2020 Addendum.

Those documents set out Guidance in respect of the registration and regulation structure applicable for residential care facilities for children and young persons. As is well known, the number of applications for Deprivation of Liberty orders has grown very significantly in recent years and a significant number of orders are made in respect of placements which are not registered under the relevant statutory regimes.

The 2019 Guidance sets out the steps that the judges were encouraged to take in respect of establishing whether a placement was registered, and if not, in the process towards registration. This included at paragraph 19 the Court providing that an application for registration should be submitted within 7 days of the Order being made and then further oversight of the process by the Court.

This process places very considerable burdens on the Court system, but more importantly, is not part of the Court's functions. Ofsted and CIW are the regulatory bodies, with statutory powers as to oversight of children's homes, including where a child is placed in an unregistered home.

It is not for the Court to become a regulatory body or the overseer of the regulatory process. The Court's role in deprivation of liberty applications, is to exercise its inherent jurisdiction to ensure that any deprivation of liberty is not itself unlawful, whether as an unlawful detention under the common law, or a breach of Article 5 of the ECHR. That is the extent of the Court's powers, and the Court's role should not go beyond those powers.

The Court of Appeal in Re A Mother v Derby City Council [2021] EWCA Civ 1867 held that the inherent jurisdiction may be used to authorise a deprivation of liberty in an unregistered children's home, so long as the requirements set out by the Supreme Court in are met.

The withdrawal of the 2019 Guidance does not mean that there are not usually great benefits for the child or young person in being placed in a registered rather than unregistered placement. The regulatory regime provides very considerable safeguards for the child. This revised Guidance does not detract from that principle. However, the Court should restrict its considerations and orders to its own functions.
Guidance issued by Sir Andrew McFarlane President of the Family Division September 2023 Revised National Listing Protocol for Applications that seek Deprivation of Liberty Orders Relating to Children under the Inherent Jurisdiction What the LA needs to do when issuing the application and in any event prior to the first hearing in the RCJ/NDL NATIONAL DoL LIST ('NDL') October 2023 6. CASE MANAGEMENT Role of the s.9 NDL judge at the first hearing in the RCJ (Replacing the National DoL Court)INTRODUCTION

The Courts when considering a DoL application should enquire into whether the proposed placement is registered or unregistered. If it is unregistered it should enquire as to why the local authority considers an unregistered placement is in the best interests of the child.

The Court may order the local authority to inform Ofsted/CIW within 7 days if it is placing a child in an unregistered placement.

Following the conclusion of the initial pilot scheme in July 2023 and the extensive consultation with judges and other stakeholders which followed, the organisation and listing of DoL orders relating to children under the inherent jurisdiction is being revised. The National DoL Court will no longer operate under that title. In future, all initial applications will be dealt with as part of the National DoL List ("NDL") which will continue to be overseen as part of the work of the Family Division. As from 2 October 2023, all C66 applications seeking orders to deprive any child of their liberty ('DoL orders') shall continue to be issued centrally in the Royal Courts of Justice via the following email address: ([email protected] ). The C66 application must state (with brief reasons in support) whether the application needs to be heard in A - 4 hours; B - 24 hours; C - 3 days; or D - 5 days.

Experience over the last 12 months has shown that Fridays are particularly difficult days for the Listing Team at the RCJ. Every effort must be made to avoid issuing urgent applications on a Friday. Unless the matter is one of exceptional urgency, first applications for a DoL order must be made between Monday and Thursday. Renewals or extensions of existing orders can, and must, be made in a timely manner. This should not present local authorities with any difficulty, as it will be known well in advance when the renewal or extension will be required.

A fee of £183 is payable on submission of the application. Payment should be made by fee account (PBA). If this is not possible and payment is to be made by another method, the applicant must contact the RCJ Fees Office, [email protected] for a card payment.

Applications listed in the NDL will be dealt with by a NDL judge who will be either a Judge of the Family Division or a s.9 Deputy Judge of the High Court. The current system for inviting s.9 judges to sit at the RCJ for 5 or 10 day slots to deal with applications in the NDL will continue as before. It is important work, and I am grateful to all our volunteers for the time and effort which goes into these sittings.

All first applications will be listed in the RCJ in the NDL before a NDL judge. This will be the default position unless the local authority is requesting an immediate transfer out to the local Family Court for the first hearing, and it has confirmed to the NDL administrative team in the RCJ that a s.9 judge is available and willing to deal with the matter within 24 hours or such shorter period as may be required for the first hearing.

The NDL judge will make the first order and fix the review date.

The expectation will be that, where there are, or will be, parallel public law proceedings concerning the same child/young person and/or where there has been prior judicial involvement at a local level, the case will be sent back to the local court for further reviews. This should ensure a much greater level of judicial continuity than is achieved presently where specific permission is required to release a case back to the local court of origin. In effect, the presumption will be that local Family Courts are better placed to deal with the continuation and/or regulation of the terms of a DoL order which affects a child or young person who is the subject of ongoing care or related proceedings.

When fixing the first review date, the NDL judge sitting in the RCJ must bear in mind that the public law proceedings which are, or will be, ongoing in the local court may not be listed before a s.9 judge for the ICO/FHDRA hearing. It is essential that there is prior liaison between the local authority seeking the DoL order and the local court listings officer. Experience has shown that, without such communication, local courts can find themselves in difficulty if they are required to list a scheduled review before the DFJ or another s.9 judge in circumstances where the parallel public law proceedings are listed before a DJ or non-ticketed CJ. The local authority will be expected to inform the NDL judge for the purposes of the first hearing that there will be a s.9 judge available to review the DoL order when the case returns to the local court.

All efforts must be made to make the application in a timely manner.

It is critical that the local authority is ready for the case to be heard within the time frame stipulated in the initial C66 application. This includes the availability of both counsel (or another legal representative with appropriate rights of audience) and an electronic bundle.

The electronic bundle must be sent to the RCJ by 12 noon the day before the hearing unless the case falls into the exceptional category of cases which require a hearing within 4 hours. The bundle should include the originating application, a draft order, (where possible) position statements, and any local authority evidence relied on.

The local authority's statement must cover -

the child's background;

whether there are related care proceedings - ongoing, to be issued or completed;

details of the proposed placement including background to both provider and property, staffing, training and whether regulated or unregulated;

education plan;

CAMHS or other NHS involvement and services;

proposed contact arrangements.

Particularly complex cases should be referred by the NDL judge to the relevant Family Presider for allocation locally.

consider whether the order sought amounts to a deprivation of liberty within the meaning of Article 5 ECHR;

consider the extent to which the restrictions sought are necessary and proportionate in relation to the perceived risks to the child or others;

consider the nature of the placement and its suitability to meet the needs of the child concerned. The provision of ongoing education is crucial. It will only be in exceptional circumstances that a child will be subject to a DoLs order without education.

Where the application is being made on an urgent basis on short notice in circumstances where the local authority has not yet identified a suitable longer term placement for the child, the judge must give careful consideration to the conditions under which the child's liberty will be restricted in the short term pending an urgent review hearing.

If the short-term placement is unregulated, the revised guidance issued by the PFD in September 2023 must be followed:

Any initial directions given at the first hearing in the RCJ may include the following matters:

directions for the listing of any urgent hearing on transfer back to the local court including the provision of notice to other persons or parties to ongoing care proceedings;

the filing of further evidence;

joinder of the child as a party to the proceedings allocated to a Children's Guardian in the local area where the child lives;

whether there are any particular reasons why the proceedings should remain in the RCJ for the next review hearing (for example the unavailability of a s.9 judge in the local court if the next review is urgent).

Interrelationship with the Court of Protection 7. If the child or young person is 16 or 17 years old and there is reason to believe they may lack capacity and would be likely to be transferred to the Court of Protection at the age of 18 years, then the court should transfer the case to the Court of Protection in accordance with the guidelines. The draft order made at the first hearing in the RCJ ("the first order") 8. The draft order should cover -

the scope of the DoL restrictions;

the name/identity of the placement;

any specific requirements or pre-conditions (e.g. one female member of staff to be on site at all times);

notification to Ofsted if placement is unregulated;

contact;

education;

appointment of Guardian;

review / next hearing and before whom? (i.e. where possible the s.9 judge to whom the case has been/will be allocated in the local court should be identified in the first directions order).

Transfer of proceedings 9. The NDL administrative team in the RCJ will, on receipt of the approved first order, deal with the arrangements for transferring the DoL file to the designated local court together with a copy of the sealed first order. Liaison between the RCJ and the local court 10. Once an application has been issued in Form C66, and following transfer back to the local court, there is a designated route for urgent communication between the local court and the NDL administrative team in the RCJ:- [email protected] Telephone: 0207 947 6335 11. Where the s.9 judge dealing with the initial hearing at the RCJ considers that there are particular issues or difficulties with the case which may warrant departure from this Listing Protocol, the judge shall consult with either Mrs Justice Roberts, the Family Division Lead DoL judge, or the relevant Family Presider or the Urgent Applications Judge. Sir Andrew McFarlane President of the Family Division & Head of Family Justice September 2023

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This post began as a talk I gave for White Paper Conferences in February 2021 looking at the complex issues, both legal and practical, around deprivation of liberty orders for children of all ages. I will continue to update it. Your freedom to come and go as you wish is very important and has been a protected right for centuries.

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Law society - identifying deprivation of liberty

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Law society - identifying deprivation of liberty

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Draft Regulations laid before Parliament under section 65(4B) of the Mental Capacity Act 2005, for approval by resolution of each House of Parliament.

Draft Statutory Instruments

Mental Capacity, England

Coming into force

3rd November 2008

The Secretary of State for Health makes these Regulations in exercise of the powers conferred by section 65(1) of, and paragraphs 31, 33(4), 47, 70, 129(3), 130 and 183(6) and (7) of Schedule A1 to, the Mental Capacity Act 2005( 1).

A draft of this instrument has been laid before Parliament in accordance with section 65(4B)( 2) of that Act, and approved by resolution of each House of Parliament.

Citation, commencement and application

1.-(1) These Regulations may be cited as the Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 and shall come into force on 3 rd November 2008.

(2) These Regulations apply in relation to England only.

Interpretation

2. In these Regulations-

"approved mental health professional" means a person approved under section 114(1) of the Mental Health Act 1983( 3) to act as an approved mental health professional for the purposes of that Act;

"best interests assessor" means a person selected to carry out a best interests assessment under paragraph 38 of Schedule A1 to the Act;

"General Social Care Council" has the meaning given by section 54(1) of the Care Standards Act 2000( 4); and

"the Act" means the Mental Capacity Act 2005.

PART 2 Eligibility to carry out assessments

Eligibility - general

3.-(1) In addition to any requirement in regulations 4 to 9, a person is eligible to carry out an assessment where paragraphs (2) to (4) are met.

(2) The person must-

(a) be insured in respect of any liabilities that might arise in connection with carrying out the assessment; and

(3) The supervisory body must be satisfied that the person has the skills and experience appropriate to the assessment to be carried out which must include, but are not limited to, the following-

(b) the ability to keep appropriate records and to provide clear and reasoned reports in accordance with legal requirements and good practice.

(4) The supervisory body must be satisfied that there is in respect of the person-

Eligibility to carry out a mental health assessment

4.-(1) A person is eligible to carry out a mental health assessment( 9) if paragraphs (2) and (3) are met.

(2) The person must be-

(b) a registered medical practitioner who the supervisory body is satisfied has at least three years post registration experience in the diagnosis or treatment of mental disorder.

(3) The supervisory body must be satisfied that the person has successfully completed the Deprivation of Liberty Safeguards Mental Health Assessors training programme made available by the Royal College of Psychiatrists( 11).

(4) Except in the 12 month period beginning with the date the person has successfully completed the programme referred to in paragraph (3), the supervisory body must be satisfied that the person has, in the 12 months prior to selection, completed further training relevant to their role as a mental health assessor.

Eligibility to carry out a best interests assessment

5.-(1) A person is eligible to carry out a best interests assessment( 12) if paragraphs (2) and (3) are met.

(2) The person must be one of the following-

(a) an approved mental health professional;

(b) a social worker registered with the General Social Care Council;

(3) The supervisory body must be satisfied that the person-

(a) is not suspended from the register or list relevant to the person's profession mentioned in paragraph (2);

(b) has at least two years post registration experience in one of the professions mentioned in paragraph (2);

(d) except in the 12 month period beginning with the date the person has successfully completed the training referred to in sub-paragraph (c), the supervisory body must be satisfied that the person has, in the 12 months prior to selection, completed further training relevant to their role as a best interests assessor; and

(e) has the skills necessary to obtain, evaluate and analyse complex evidence and differing views and to weigh them appropriately in decision making.

Eligibility to carry out a mental capacity assessment

6. A person is eligible to carry out a mental capacity assessment( 17) if that person is eligible to carry out-

(a) a mental health assessment; or

(b) a best interests assessment.

Eligibility to carry out an eligibility assessment

7. A person is eligible to carry out an eligibility assessment( 18) if that person is-

(a) approved under section 12 of the Mental Health Act 1983 and is eligible to carry out a mental health assessment; or

(b) an approved mental health professional and is eligible to carry out a best interests assessment.

Eligibility to carry out an age assessment

8. A person is eligible to carry out an age assessment( 19) if that person is eligible to carry out a best interests assessment.

Eligibility to carry out a no refusals assessment

9. A person is eligible to carry out a no refusals assessment( 20) if that person is eligible to carry out a best interests assessment.

PART 3 Selection of Assessors

Selection of assessors - relatives

10.-(1) A supervisory body must not select a person to carry out an assessment if the person is-

(b) a relative of a person who is financially interested in the care of the relevant person.

(2) For the purposes of this regulation a "relative" means-

(a) a spouse, ex-spouse, civil partner or ex-civil partner;

(b) a person living with the relevant person as if they were a spouse or a civil partner;

(e) a child of a person falling within sub-paragraphs (a), (b) or (d);

(f) a grandparent or grandchild;

(g) a grandparent-in-law or grandchild-in-law;

(i) a brother-in-law or sister-in-law;

(j) a son-in-law or daughter-in-law;

(l) a half-brother or half-sister.

(3) For the purposes of this regulation-

(a) the relationships in paragraph (2)(c) to (k) include step relationships;

(c) financial interest has the meaning given in regulation 11.

Selection of assessors - financial interest

11.-(1) A supervisory body must not select a person to carry out an assessment where the person has a financial interest in the case.

(2) A person has a financial interest in a case where-

(b) the managing authority is a care home() or independent hospital().

(3) A major shareholder means-

(a) any person holding one tenth or more of the issued shares in the managing authority, where the managing authority is a company limited by shares; and

(b) in all other cases, any of the owners of the managing authority.

Selection of best interests assessors

12.-(1) A supervisory body must not select a person to carry out a best interests assessment if that person is involved in the care, or making decisions about the care, of the relevant person.

(2) Where the managing authority and supervisory body are both the same body, the supervisory body must not select a person to carry out a best interests assessment who is employed by it or who is providing services to it.

Time frame for assessments

13.-(1) Except as provided in paragraph (2), all assessments required for a standard authorisation must be completed within the period of 21 days beginning with the date that the supervisory body receives a request for such an authorisation.

(2) Where a supervisory body receives a request for a standard authorisation and the managing authority has given an urgent authorisation under paragraph 76 of Schedule A1 to the Act, the assessments required for that standard authorisation must be completed within the period during which the urgent authorisation is in force.

Time limit for carrying out an assessment to decide whether or not there is an unauthorised deprivation of liberty

14. Subject to paragraph 69(3) to (5) of Schedule A1 to the Act, an assessment required under that paragraph must be completed within the period of 7 days beginning with the date that the supervisory body receives the request from an eligible person.

Relevant eligibility information

15.-(1) This regulation applies where an individual is being assessed and the eligibility assessor and the best interests assessor are not the same person.

(2) The eligibility assessor must request that the best interests assessor provides any relevant eligibility information that the best interests assessor may have.

(3) The best interests assessor must comply with any request made under this regulation.

(4) In this regulation "eligibility assessor" means a person selected to carry out the eligibility assessment under paragraph 46 of Schedule A1 to the Act.

PART 5 Requests for a standard authorisation

Information to be provided in a request for a standard authorisation

16.-(1) A request for a standard authorisation must include the following information-

(a) the name and gender of the relevant person;

(b) the age of the relevant person or, where this is not known, whether the managing authority believes that the relevant person is aged 18 years or older;

(c) the address and telephone number where the relevant person is currently located;

(d) the name, address and telephone number of the managing authority and the name of the person within the managing authority who is dealing with the request;

(e) the purpose for which the authorisation is requested;

(f) the date from which the standard authorisation is sought; and

(g) whether the managing authority has given an urgent authorisation under paragraph 76 of Schedule A1 to the Act and, if so, the date on which it expires.

(2) Except as provided for in paragraph (3), a request for a standard authorisation must include the following information if it is available or could reasonably be obtained by the managing authority-

(a) any medical information relating to the relevant person's health that the managing authority considers to be relevant to the proposed restrictions to the relevant person's liberty;

(c) any relevant care plans and relevant needs assessments;

(d) the racial, ethnic or national origins of the relevant person;

(e) whether the relevant person has any special communication needs;

(f) details of the proposed restrictions on the relevant person's liberty;

(h) where the purpose of the proposed restrictions to the relevant person's liberty is to give treatment, whether the relevant person has made an advance decision that may be valid and applicable to some or all of that treatment;

(i) whether the relevant person is subject to-

(i) the hospital treatment regime,

(ii) the community treatment regime, or

(j) the name, address and telephone number of-

(i) anyone named by the relevant person as someone to be consulted about his welfare,

(ii) anyone engaged in caring for the person or interested in his welfare,

(iii) any donee of a lasting power of attorney granted by the person,

(iv) any deputy appointed for the person by the court, and

(k) whether there is an existing authorisation in relation to the detention of the relevant person and, if so, the date of the expiry of that authorisation.

(3) Where-

(a) there is an existing authorisation in force in relation to the detention of the relevant person; and

(b) the managing authority makes a request in accordance with paragraph 30 of Schedule A1 to the Act for a further standard authorisation in relation to the same relevant person,

the request need not include any of the information mentioned in paragraph (2)(a) to (j) if that information remains the same as that supplied in relation to the request for the existing authorisation.

(4) In this regulation "existing authorisation" has the same meaning as in paragraph 29 of Schedule A1 to the Act.

PART 6 Supervisory bodies: care homes

Disputes about the Place of Ordinary Residence

Application and Interpretation of Part 6

17.-(1) This Part applies where-

(i) a care home for a standard authorisation under paragraph 24, 25 or 30 of Schedule A1 to the Act, or

(ii) an eligible person to decide whether or not there is an unauthorised deprivation of liberty in a care home under paragraph 68 of Schedule A1 to the Act;

(b) local authority A wishes to dispute that it is the supervisory body; and

(c) a question as to the ordinary residence of the relevant person is to be determined by the Secretary of State under paragraph 183 of Schedule A1 to the Act.

(2) In this Part-

(a) "local authority A" has the meaning given in paragraph (1); and

(b) "local authority C" has the meaning given in regulation 18(2).

Arrangements where there is a question as to the ordinary residence

18.-(1) Local authority A must act as supervisory body in relation to a request mentioned in regulation 17(1)(a) until the determination of the question as to the ordinary residence of the relevant person.

(2) But where another local authority ("local authority C") agrees to act as the supervisory body in place of local authority A, that local authority shall become the supervisory body until the determination of the question as to the ordinary residence of the relevant person.

(3) When the question about the ordinary residence of the relevant person has been determined, the local authority which has been identified as the supervisory body shall become the supervisory body.

Effect of change in supervisory body following determination of any question about ordinary residence

19.-(1) Where the question of ordinary residence of the relevant person is determined in accordance with paragraph 183(3) of Schedule A1 to the Act, and another local authority ("local authority B") becomes the supervisory body in place of local authority A or local authority C, as the case may be, paragraphs (3) to (6) shall apply.

(2) Where the question of ordinary residence of the relevant person is determined in accordance with paragraph 183(3) of Schedule A1 to the Act and local authority C remains the supervisory body, paragraphs (7) to (9) shall apply.

(3) Local authority B shall be treated as the supervisory body that received the request mentioned in regulation 17(1)(a) and must comply with the time limits specified in -

(a) regulation 13 for carrying out the assessments required for a standard authorisation; or

(b) regulation 14 for carrying out an assessment required under paragraph 69 of Schedule A1 to the Act,

as the case may be, where the assessments have still to be completed.

(4) Anything done by or in relation to local authority A or local authority C in connection with the authorisation or request, as the case may be, has effect, so far as is necessary for continuing its effect after the change, as if done by or in relation to local authority B.

(5) Anything which relates to the authorisation or request and which is in the process of being done by or in relation to local authority A or local authority C at the time of the change may be continued by or in relation to local authority B.

(6) But-

(a) local authority A or local authority C does not, by virtue of this regulation, cease to be liable for anything done by it in connection with the authorisation or request before the change; and

(b) local authority B does not, by virtue of this regulation, become liable for any such thing.

(7) Local authority C shall be treated as the supervisory body that received the request mentioned in regulation 17(1)(a) and must comply with the time limits specified in -

(a) regulation 13 for carrying out the assessments required for a standard authorisation; or

(b) regulation 14 for carrying out an assessment required under paragraph 69 of Schedule A1 to the Act,

as the case may be, where the assessments have still to be completed.

(8) Anything done by or in relation to local authority A in connection with the authorisation or request, as the case may be, has effect, so far as is necessary for continuing its effect after the change, as if done by or in relation to local authority C.

(9) Anything which relates to the authorisation or request and which is in the process of being done by or in relation to local authority A at the time of the change may be continued by or in relation to local authority C.

(10) But-

(a) local authority A does not, by virtue of this regulation, cease to be liable for anything done by it in connection with the authorisation or request before the change; and

(b) local authority C does not, by virtue of this regulation, become liable for any such thing.

Signed by authority of the Secretary of State

Name

Department of Health

Date

EXPLANATORY NOTE

The Mental Capacity Act 2005 ("the Act") provides for the deprivation of liberty of people lacking capacity to consent to the arrangements made for their care or treatment, who are receiving care or treatment in care homes and hospitals, where authorisation under section 4A of and Schedule A1 to the Act ("Schedule A1") exists.

Where it appears that a person who lacks capacity is detained, or is likely to be detained, in a care home or hospital, the managing authority of the care home or hospital must request an authorisation from the supervisory body. "Managing authority" is defined in paragraphs 176, 177 and 179 of Schedule A1 to the Act. The identity of the supervisory body is determined in accordance with paragraphs 128, 180 and 182 of Schedule A1. In the case of a care home, the supervisory body will usually be the local authority in which the person is ordinarily resident and in the case of a hospital, it will usually be the relevant Primary Care Trust for the area in which it is situated or the Primary Care Trust that commissions the care or treatment.

On receiving such a request the supervisory body must ensure that various assessments are carried out in relation to the individual concerned in order to determine whether it is appropriate to grant the authorisation. The supervisory body must select people to carry out those assessments in accordance with paragraph 129 of Schedule A1 and may only select people who are eligible in accordance with these Regulations.

These Regulations, together with the Act, provide the eligibility requirements for people who carry out the assessments. These Regulations require that-

(a) all assessors are adequately insured and that the supervisory body is satisfied that they have suitable skills and have undergone a Criminal Record Bureau check (regulation 3);

(b) mental health assessments can only be carried out by medical practitioners who have been approved under section 12 of the Mental Health Act 1983 ("Mental Health Act") or registered medical practitioners who have similar mental health experience to practitioners approved under section 12 of the Mental Health Act and the supervisory body is satisfied that the person has the required training (regulation 4);

(c) best interests assessments can only be carried out by mental health practitioners who have been approved under section 114(1) of the Mental Health Act, certain health professionals or social workers, with specialised and relevant skills and with at least two years post registration experience. The supervisory body must be satisfied that the person has the required training (regulation 5);

(d) mental capacity assessments can only be carried out by people who are eligible to carry out a mental health assessment or a best interests assessment (regulation 6);

(e) eligibility assessments can only be carried out by medical practitioners who have been approved under section 12 of the Mental Health Act or an approved mental health professional and the supervisory body is satisfied that the person has the required training (regulation 7);

(f) are eligible to carry out a best interests assessment (regulations 8 and 9).

These Regulations provide some limitations on the ability of a supervisory body to select people to carry out assessments, even if the person meets the eligibility requirements. They do so by preventing the selection of-

(a) people who have, or are related to a person who has, a personal financial interest in the care of the individual in need of assessment or are a relative of the individual (regulations 10 and 11); and

(b) a best interests assessor who is involved in the care of the individual in need of assessment, or is employed by the supervisory body where the managing authority and the supervisory body are the same (regulation 12).

These Regulations contain provisions relating to the assessments required in response to a request for-

(a) a standard authorisation by requiring that all of the required assessments be completed within 21 days from the date on which the supervisory body receives the request, except where an urgent authorisation is in force, in which case assessments must be completed during the period of the urgent authorisation (regulation 13); and

(b) a decision as to whether or not there is an unauthorised deprivation of liberty by requiring that the assessment be completed within 7 days from the date the supervisory body receives the request (regulation 14).

Regulation 15 enables the person carrying out the eligibility assessment to require the person conducting the best interests assessment to provide them with information relevant to their assessment.

Regulation 16 specifies the information that must be included in a request for a standard authorisation and information that must be included if it is available or could reasonably be obtained by the managing authority.

Paragraph 182 of Schedule A1 makes provision for identifying the supervisory body where the managing authority is a care home. In the case of a care home the supervisory body will be the local authority in which the person is ordinarily resident. Part 6 of these Regulations applies in specified circumstances where a local authority wishes to dispute that it is the supervisory body (regulation 17).

Regulation 18 sets out who is to act as supervisory body until the question of ordinary residence is determined. Regulation 19 provides for the effect of a change in supervisory body following the determination of a question as to the ordinary residence of a relevant person.

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The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008

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The Mental Capacity Act 2005 ("the Act") provides for the deprivation of liberty of people lacking capacity to consent to the arrangements made for their care or treatment, who are receiving care or treatment in care homes and hospitals, where authorisation under section 4A of and Schedule A1 to the Act ("Schedule A1") exists.

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Please use the links below to access the suite of DoLS forms updated by WM-ADASS in Autumn 2023 except where stated

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Regulation 9A: Visiting and accompanying in care homes, hospitals and hospices - Care Quality Commission

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Statutory Instruments

Mental Capacity, England

Coming into force

3rd November 2008

Citation, commencement and application

1.-(1) These Regulations may be cited as the Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person's Representative) Regulations 2008 and shall come into force on 3 rd November 2008.

(2) These Regulations apply in relation to England only.

Interpretation

2. In these Regulations-

"best interests assessor" means a person selected to carry out a best interests assessment under paragraph 38 of Schedule A1 to the Act;

"donee" is a person who has a lasting power of attorney conferred on them by the relevant person, giving that donee the authority to make decisions about the relevant person's personal welfare;

"the Act" means the Mental Capacity Act 2005; and

"the relevant person's managing authority" means the managing authority( 2) that has made the application for a standard authorisation( 3) in respect of the relevant person( 4).

PART 1 Selection of representatives

Selection of a person to be a representative - general

3.-(1) In addition to any requirements in regulations 6 to 9 and 11, a person can only be selected to be a representative if they are-

(b) able to keep in contact with the relevant person;

(c) willing to be the relevant person's representative;

(e) not a relative of a person who is financially interested in the managing authority;

(2) For the purposes of this regulation a "relative" means-

(a) a spouse, ex-spouse, civil partner or ex-civil partner;

(b) a person living with the relevant person as if they were a spouse or a civil partner;

(e) a child of a person falling within sub-paragraphs (a), (b) or (d);

(f) a grandparent or grandchild;

(g) a grandparent-in-law or grandchild-in-law;

(i) a brother-in-law or sister-in-law;

(j) a son-in-law or daughter-in-law;

(l) a half-brother or half-sister.

(3) For the purposes of this regulation-

(a) the relationships in paragraph (2)(c) to (k) include step relationships;

(c) a person has a financial interest in a managing authority where-

(i) that person is a partner, director, other office-holder or major shareholder of the managing authority that has made the application for a standard authorisation, and

(d) a major shareholder means-

(i) any person holding one tenth or more of the issued shares in the managing authority, where the managing authority is a company limited by shares, and

(ii) in all other cases, any of the owners of the managing authority.

Determination of capacity

4. The best interests assessor must determine whether the relevant person has capacity to select a representative.

Selection by the relevant person

5.-(1) Where the best interests assessor determines that the relevant person has capacity, the relevant person may select a family member, friend or carer.

(2) Where the relevant person does not wish to make a selection under paragraph (1), regulation 8 applies.

Selection by a donee or deputy

6.-(1) Where-

(a) the best interests assessor determines that the relevant person lacks capacity to select a representative; and

the donee or deputy may select such a person.

(2) A donee or deputy may select himself or herself to be the relevant person's representative.

(3) Where a donee or deputy does not wish to make a selection under paragraph (1) or (2), regulation 8 applies.

Confirmation of eligibility of family member, friend or carer and recommendation to the supervisory body

7.-(1) The best interests assessor must confirm that a person selected under regulation 5(1) or 6(1) or (2) is eligible to be a representative.

(2) Where the best interests assessor confirms the selected person's eligibility under paragraph (1), the assessor must recommend the appointment of that person as a representative to the supervisory body.

(3) Where the best interests assessor is unable to confirm the selected person's eligibility under paragraph (1), the assessor must-

(a) advise the person who made the selection of that decision and give the reasons for it; and

(b) invite them to make a further selection.

Selection by the best interests assessor

8.-(1) The best interests assessor may select a family member, friend or carer as a representative where paragraph (2) applies.

(2) The best interests assessor may make a selection where-

(a) the relevant person has the capacity to make a selection under regulation 5(1) but does not wish to do so;

(b) the relevant person's donee or deputy does not wish to make a selection under regulation 6(1) or (2); or

(c) the relevant person lacks the capacity to make a selection and-

(i) does not have a donee or deputy, or

(ii) has a donee or deputy but the donee's or deputy's scope of authority does not permit the selection of a representative.

(3) Where the best interests assessor selects a person in accordance with paragraph (2), the assessor must recommend that person for appointment as a representative to the supervisory body.

(4) But the best interests assessor must not select a person under paragraph (2) where the relevant person, donee or deputy objects to that selection.

(5) The best interests assessor must notify the supervisory body if they do not select a person who is eligible to be a representative.

Selection by the supervisory body

9.-(1) Where a supervisory body is given notice under regulation 8(5), it may select a person to be the representative, who-

(a) would be performing the role in a professional capacity;

(b) has satisfactory skills and experience to perform the role;

(c) is not a family member, friend or carer of the relevant person;

(d) is not employed by, or providing services to, the relevant person's managing authority, where the relevant person's managing authority is a care home;

(e) is not employed to work in the relevant person's managing authority in a role that is, or could be, related to the relevant person's case, where the relevant person's managing authority is a hospital; and

(f) is not employed to work in the supervisory body that is appointing the representative in a role that is, or could be, related to the relevant person's case.

(2) The supervisory body must be satisfied that there is in respect of the person-

PART 2 Appointment of representatives

Commencement of appointment procedure

10. The procedure for appointing a representative must begin as soon as-

(a) a best interests assessor is selected by the supervisory body for the purposes of a request for a standard authorisation; or

(b) a relevant person's representative's appointment terminates, or is to be terminated, under regulation 14 and the relevant person remains subject to a standard authorisation.

Appointment of representative

11. Except where regulation 9 applies, a supervisory body may not appoint a representative unless the person is recommended to it under regulations 7 or 8.

Formalities of appointing a representative

12.-(1) The offer of an appointment to a representative must be made in writing and state-

(a) the duties of a representative to -

(i) maintain contact with the relevant person,

(ii) represent the relevant person in matters relating to, or connected with, the deprivation of liberty, and

(iii) support the relevant person in matters relating to, or connected with, the deprivation of liberty; and

(b) the length of the period of the appointment.

(2) The representative must inform the supervisory body in writing that they are willing to accept the appointment and that they have understood the duties set out in sub-paragraph (1)(a).

(3) The appointment must be made for the period of the standard authorisation.

(4) The supervisory body must send copies of the written appointment to-

(c) the relevant person's managing authority;

(d) any donee or deputy of the relevant person;

(e) any independent mental capacity advocate() appointed in accordance with sections 37 to 39D of the Act(), involved in the relevant person's case; and

(f) every interested person named by the best interests assessor in their report as somebody the assessor has consulted in carrying out the assessment.

Termination of representative's appointment

13. A person ceases to be a representative if-

(b) the person informs the supervisory body that they are no longer willing to continue as representative;

(c) the period of the appointment ends;

(d) a relevant person who has selected a family member, friend or carer under regulation 5(1) who has been appointed as their representative informs the supervisory body that they object to the person continuing to be a representative;

(e) a donee or deputy who has selected a family member, friend or carer of the relevant person under regulation 6(1) who has been appointed as a representative informs the supervisory body that they object to the person continuing to be a representative;

(f) the supervisory body terminates the appointment because it is satisfied that the representative is not maintaining sufficient contact with the relevant person in order to support and represent them;

(g) the supervisory body terminates the appointment because it is satisfied that the representative is not acting in the best interests of the relevant person; or

(h) the supervisory body terminates the appointment because it is satisfied that the person is no longer eligible or was not eligible at the time of appointment, to be a representative.

Formalities of termination of representative's appointment

14.-(1) Where a representative's appointment is to be terminated for a reason specified in paragraphs (c) to (h) of regulation 13, the supervisory body must inform the representative of-

(a) the pending termination of the appointment;

(b) the reasons for the termination of the appointment; and

(c) the date on which the appointment terminates.

(2) The supervisory body must send copies of the termination of the appointment to-

(b) the relevant person's managing authority;

(c) any donee or deputy of the relevant person;

(d) any independent mental capacity advocate appointed in accordance with sections 37 to 39D of the Act, involved in the relevant person's case; and

(e) every interested person named by the best interests assessor in their report as somebody the assessor has consulted in carrying out the assessment.

Payment to a representative

15. A supervisory body may make payments to a representative appointed following a selection under regulation 9.

EXPLANATORY NOTE

The Mental Capacity Act 2005 ("the Act") provides for the deprivation of liberty of people who lack capacity to consent to arrangements proposed for their care in care homes and hospitals where authorisation under section 4A of and Schedule A1 to the Act ("Schedule A1") exists.

Paragraph 139 of Schedule A1 requires that the supervisory body appoint a representative to a person in respect of whom a standard authorisation has been issued. Supervisory bodies are only able to appoint representatives who have been selected for that purpose. The role of the representative is to maintain contact with the person and to support and represent them in matters relating to their deprivation of liberty.

These Regulations provide for the selection and appointment of representatives and the circumstances in which they may be paid, by-

(a) detailing the eligibility requirements for appointment as a representative (regulation 3);

(b) enabling the best interests assessor to determine whether the person deprived, or potentially deprived of, liberty ("the relevant person") has capacity to select a person to be their representative (regulation 4);

(c) enabling the relevant person to select a family member, friend or carer to be their representative, where they have capacity to make that decision (regulation 5);

(d) enabling a donee or deputy of a relevant person who lacks capacity to select a representative, to select a family member, friend, carer or him or herself to be the representative, where their scope of authority permits that (regulation 6);

(e) requiring that the best interests assessor confirms the eligibility for appointment of any selection made by a relevant person, donee or deputy. Where confirmation is given, the best interests assessor must recommend the selected person for appointment. Where confirmation cannot be given, the selector must be advised why that is the case and invited to make another selection (regulation 7);

(f) enabling the best interests assessor to select a relevant person's family member, friend or carer as the representative when one is not, or cannot, be selected by the relevant person, a donee or a deputy (regulation 8);

(g) enabling the supervisory body to select a person in a professional capacity to be a representative where one cannot be selected from the relevant person's family, friends or carers (regulation 9);

(h) requiring that the procedure for appointing a representative begin as soon as a best interests assessor is selected in relation to a request for a standard authorisation or as soon as an existing representative's appointment terminates or is about to terminate (regulation 10);

(i) requiring that the supervisory body only appoints a person approved by the best interests assessor, unless such approval cannot be given (regulation 11);

(j) detailing the formalities of appointment and termination of appointment (regulations 12 to 14); and

(k) enabling the supervisory body to pay a person who has been selected to be a representative in a professional capacity (regulation 15).

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The Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) Regulations 2008

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The Mental Capacity Act 2005 (“the Act”) provides for the deprivation of liberty of people who lack capacity to consent to arrangements proposed for their care in care homes and hospitals where authorisation under section 4A of and Schedule A1 to the Act (“Schedule A1”) exists.

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This schedule has no associated Explanatory Notes

those circumstances are to be taken into account as they are expected to be at the later time.

for him to be a detained resident.

to meet all of the qualifying requirements.

to meet all of the qualifying requirements.

they may vary the conditions to which the standard authorisation is subject in such ways (if any) as they think are appropriate in the circumstances.

they must vary the conditions to which the standard authorisation is subject in such ways as they think are appropriate in the circumstances.

this Part does not require the supervisory body to take any action in respect of the standard authorisation so far as the best interests requirement relates to it.

the provision that the regulations may make in relation to a person's training may provide for particular training to be specified by otherwise than in the regulations.

which the assessor considers may be relevant to the assessment which is being carried out.

the supervisory body must give the copies of the assessment when they give copies of the authorisation in accordance with paragraph 57.

the supervisory body must give the copies of the assessment when they give notice in accordance with paragraph 58.

the extent to which a representative is maintaining contact with the relevant person.

the F8... F9... Local Health Board or Special Health Authority responsible for the administration of the hospital;

if the hospital is vested in a ... National Health Service trust or NHS foundation trust, that trust;

in relation to Wales, the person registered, or required to be registered, under Part 2 of the Care Standards Act 2000 in respect of the hospital. ]

in relation to Wales, the person registered, or required to be registered, [ under Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 in respect of the care home ]

where the relevant person and another person are not married to each other, nor in a civil partnership with each other, but are living together as if they were a married couple

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An Act to make new provision relating to persons who lack capacity; to establish a superior court of record called the Court of Protection in place of the office of the Supreme Court called by that name; to make provision in connection with the Convention on the International Protection of Adults signed at the Hague on 13th January 2000; and for connected purposes.

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Check for LPA through Office of Public Guardian (OPG)

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Check for LPA through Office of Public Guardian (OPG)

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Download and fill in this form to find out if someone has an attorney or deputy acting for them.

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Download and fill in this form to find out if someone has a lasting power of attorney (LPA), an enduring power of attorney (EPA) or a court-appointed deputy acting on their behalf.

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International Classification of Disease (ICD) 11

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International Classification of Disease (ICD) 11

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web services to get programmatic access to ICD-11

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An Act to make new provision relating to persons who lack capacity; to establish a superior court of record called the Court of Protection in place of the office of the Supreme Court called by that name; to make provision in connection with the Convention on the International Protection of Adults signed at the Hague on 13th January 2000; and for connected purposes.

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Ask Anything about DoLS / MCA here in the comments section

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Ask Anything about DoLS / MCA here in the comments section

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Sorry, we couldn’t find that page | Care Quality Commission

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The Local Government and Social Care Ombudsman (LGSCO) has recommended that Peterborough City Council pay more than £2,900 after its delay in revising the housing priority of a vulnerable man.

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Power of Attorney | Legal issues | Age UK

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There are a number of reasons why you might need someone to make decisions for you, or act on your behalf. A power of attorney can make decisions for you.

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There are many occasions where an individual may be unwilling or unable to engage with a mental capacity assessment. It is not a rare event by any means, and there are many possible reasons why this may occur. For example, there may be an issue with the specific context of the situation, the individual's health conditions, the professional's approach to the test, or even the adaptations that have been made to support.

It is therefore important to know what to do when such an instance occurs, seeking to distinguish the cause - knowing how to respond appropriately, while continuing to maintain an individual's rights and work in line with legislation and appropriate best practice guidance.

Consent to assess

In a previous blog we discussed the process of explaining what a mental capacity assessment is, what it involves and why it is important. This helps set the scene for the assessment, supporting the individual to know what is going on and why, ensuring they are actively involved in the process and are aware of their rights. It also gives the assessor some initial insight into the individual's ability to process and understand information, while also helping to establish a professional therapeutic working relationship.

Most importantly, this process gives the individual the opportunity to consent to be assessed. This is both a necessary and important part of any healthcare treatment or intervention, and is part of the ethical codes of practice for healthcare professionals.

The Mental Capacity Act does not overwrite the need for consent by any means. Rather, it safeguards and protects those who are unable to give consent, while further supporting future decisions of those who have mental capacity to anticipate specific decisions.

Indeed, Mr Justice Hayden advocates this as a core requirement, stating: 'It seems to me to be fundamental to the assessment process that P is informed of the purpose of the assessment' LB Wandsworth v M & Ors (2017, EWHC 2435, paragraph 47).

Forms of consent

The best form of consent is informed consent, which means the individual is aware of what the decision is, they are able to understand the relevant information and retain it in order to weigh up the risks and benefits in order to make a decision. This is determined based on the balance of probabilities in terms of where this threshold lies.

A lesser form of consent is known as 'implied' consent. This is the action of choosing to take part or engage in a process, implying some form of agreement. An example might be an individual choosing between two options such as tea or coffee. By gesturing towards the choice for 'coffee', there is implied consent to the process of making a decision between the two.

But what if the individual does not engage, and does not give either form of consent? Are we still able to proceed with an assessment?

The role of context

Context is important, as it helps to aid understanding and communication on both sides. This means taking into account a range of wider factors including:

What is their first language and how do they best communicate? Is an interpreter required?

Can they hear adequately? Do they wear hearing aids or need to sit in a different environment in order to take part?

Are they unwell with an infection or other health condition?

Do they prefer a particular time of day?

What is the physical environment like? Are there any distractions or influences to engagement? What is the individual's preferred routine?

Has something happened to cause decreased motivation or mood?

Where would the individual prefer to speak? Do they prefer more structure? Had they been aware you were attending?

Do they prefer to 'walk with purpose' to aid processing and engagement? Do they require a dynamic assessment on the move?

Does the individual take time to trust a new person? Would they prefer a chosen person (who is not a part of the decision being assessed, or a known influence) to attend to provide emotional support?

What else may be impacting their engagement?

Supporting capacity

As we have often mentioned across our blogs, supporting capacity can take many forms and is a core principle of the Mental Capacity Act that must be upheld. Therefore, every effort must be made to consider all possible factors that may be affecting an individual's engagement with the process, and steps should be taken to enable participation.

Each adaptation should be documented in the assessment document - whether the adaptation is successful or not. This helps to build a picture of the individual's needs and provides evidence of the process of supporting capacity.

There is no formal limit on how many times an assessment should be attempted. However, I would suggest an assessor make as many attempts as reasonably possible in order to support participation.

Next steps

Once all avenues have been established, explored and exhausted, it is then down to the assessor and any associated professionals to determine if this lack of participation is down to an individual choice to decline, or a lack of capacity to participate. If the former, the individual should be informed of their rights and it should be clarified if any other legislation would be appropriate to refer to and correct processes to follow depending upon the decision.

Meanwhile, if the individual is determined to lack capacity to participate in the assessment then a Best Interest decision should be pursued and the assessment process thoroughly documented. A mental capacity assessment can be done on the available information from these interactions, with emphasis on support, presentation and response of the individual. Depending upon the situation, it may be that a Court of Protection decision is required.

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Dealing with clients who are unwilling or unable to engage

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There are many occasions where an individual may either choose to, or be unable to, engage with a mental capacity assessment.

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Presumption of capacity - A person must be presumed to have the capacity to make decisions unless it can be shown that they lack it

Assisted Decision-Making - A person should not be treated as unable to make a decision unless all practicable steps for them to do so have been taken without success (e.g. simplifying information, presenting non-verbal information, giving time to understand)

Unwise Decisions - People have the right to make unwise or eccentric decisions, and a person should not be treated as unable to make a decision just because that decision is not a sensible one

Best Interest - A decision made under the Mental Capacity Act must be made in the person's best interest.

Least Restrictive Option - Anyone making a decision on behalf of someone who lacks capacity must consider if there is a less restrictive option - is there something else that could be done that would not restrict the person's rights and freedom as much?

Assessing Mental Capacity is a two-stage test, the first stage being to ask the question, "Is there an impairment of or disturbance in the person's mind or brain?" If the answer is yes, then it needs to be established whether that impairment or disturbance is such that the person lacks capacity to make that particular decision - i.e. if they are unable to:

Understand information relevant to the decision.

Retain information related to the decision.

Use or weigh up that information as part of the process of making the decision.

Communicate the decision by any means.

People with ARBD may appear to have capacity based on retention - they may remember things they are told or asked for a short period of time, giving the impression that they understand, but may have completely forgotten ever having the conversation an hour later. Frontal-lobe impairment may also make people suggestible, meaning that their answers may be a response to the way the questions are asked - in a sense, the brain may be trying to give the 'right' or expected answers to questions.

Deprivation of Liberties Safeguards (DOLS) were introduced because decisions about care for an individual who lacks capacity can lead to depriving them of their liberties in their best interests. DOLS can only apply to a person deemed to lack capacity in a hospital setting or a care home, and does not apply to people detained under the Mental Health Act 1983. A DOLS authorisation can be used to authorise the care and treatment of someone lacking capacity due to ARBD.

This fact sheet was written by our predecessor organisation Alcohol Concern with the support of Garfield Weston Foundation.

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Alcohol-related brain damage legal issues - using the Mental Capacity Act | Alcohol Change UK

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The Mental Capacity Act 2005 provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves.

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All adults are presumed to have sufficient capacity to decide on their own medical treatment, unless there's significant evidence to suggest otherwise.

What is capacity?

Capacity means the ability to use and understand information to make a decision, and communicate any decision made.

A person lacks capacity if their mind is impaired or disturbed in some way, which means they're unable to make a decision at that time.

Examples of how a person's brain or mind may be impaired include:

Someone with such an impairment is thought to be unable to make a decision if they cannot:

understand information about the decision

remember that information

use that information to make a decision

communicate their decision by talking, using sign language or any other means

How capacity is assessed

As capacity can sometimes change over time, it should be assessed at the time that consent is required.

This will usually be done by an appropriately trained and experienced healthcare professional who's either:

recommending the treatment or investigation

involved in carrying it out

If the healthcare professional feels you have the capacity to give your consent, your decision will be accepted and your wishes will continue to be respected, even if you lose capacity at a later stage.

If the healthcare professional feels you do not currently have the capacity to give consent and you have not made an advance decision or formally appointed anyone to make decisions for you, they'll need to carefully consider what's in your best interests before making a decision.

Respecting personal beliefs

If someone makes a decision about treatment that other people would consider to be irrational, it does not necessarily mean they have a lack of capacity, as long as they understand the reality of their situation.

For example, a person who refuses to have a blood transfusion because it's against their religious beliefs would not be thought to lack capacity.

They still understand the reality of their situation and the consequences of their actions.

But someone with anorexia who's severely malnourished and rejects treatment because they refuse to accept there's anything wrong with them would be considered incapable.

This is because they're regarded as not fully understanding the reality of their situation or their consequences.

Determining a person's best interests

If an adult lacks the capacity to give consent, a decision about whether to go ahead with the treatment will need to be made by the healthcare professionals treating them.

To make a decision, the person's best interests must be considered.

There are many important elements involved in trying to determine what a person's best interests are.

These include:

considering whether it's safe to wait until the person can give consent if it's likely they could regain capacity at a later stage

involving the person in the decision as much as possible

trying to identify any issues the person would take into account if they were making the decision themselves, including religious or moral beliefs - these would be based on views the person expressed previously, as well as any insight close relatives or friends can offer

If a person is felt to lack capacity and there's nobody suitable to help make decisions about medical treatment, such as family members or friends, an independent mental capacity advocate (IMCA) must be consulted.

Involving the Court of Protection

In situations where there's serious doubt or dispute about what's in an incapacitated person's best interests, healthcare professionals can refer the case to the Court of Protection for a ruling.

This is the legal body that oversees the operation of the Mental Capacity Act (2005).

Situations that must always be referred to the courts include:

sterilisation for contraceptive purposes

donation of organs or regenerative tissue, such as bone marrow

withdrawal of nutrition and hydration from a person who's in a permanent vegetative state or minimally conscious state

Changes in capacity

A person's capacity to consent can change. For example, they may have the capacity to make some decisions but not others, or their capacity may come and go.

In some cases, people can be considered capable of deciding some aspects of their treatment but not others.

For example, a person with severe learning difficulties may be capable of deciding on their day-to-day treatment, but incapable of understanding the complexities of their long-term treatment.

Some people with certain health conditions may have periods when they're capable and periods when they're incapable.

For example, a person with schizophrenia may have psychotic episodes when they cannot distinguish between reality and fantasy, during which they may not be capable of making certain decisions.

A person's capacity can also be temporarily affected by:

shock

panic

extreme tiredness (fatigue)

medication

Advance decisions and power of attorney

If a person knows their capacity to consent may be affected in the future, they can choose to draw up a legally binding advance decision, also known as a living will.

This sets out the procedures and treatments that a person refuses to undergo.

You can also choose to formally arrange for someone, often a close family member, to have lasting power of attorney (LPA) if you wish to anticipate your loss of capacity to make important decisions at a later stage.

Someone with LPA can make decisions about your health on your behalf, although you can choose to specify in advance certain treatments you'd like them to refuse.

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Consent to treatment - Assessing capacity

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Find out what capacity is and how it's assessed. Also, read about how a person's best interests are determined, plus advance decisions and power of attorney.

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Our Mental Capacity Reports (formerly our Mental Capacity Newsletters) have provided authoritative summaries and commentaries upon all matters mental capacity related since Victoria Butler-Cole KC and Alex Ruck Keene KC (Hon) established them in 2010. The links below take you to the full versions ('compendiums') or the specific tailored reports covering particular areas of interest. You will also find our series of headnoted reports of particularly significant cases, launched in April 2023. To sign up to the reports or case reports, for free, please click on the link at the bottom of the page.

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Our Mental Capacity Reports (formerly our Mental Capacity Newsletters) have provided authoritative summaries and commentaries upon all matters mental capacity related since Victoria Butler-Cole KC and Alex Ruck Keene KC (Hon) established them in 2010. The links below take you to the full versions ('compendiums') or the specific tailored reports covering particular areas of interest.

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(Older version) ADASS DoLS forms and guidance

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(Older version) ADASS DoLS forms and guidance

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Resources for local authorities to support their roles as supervisory bodies for the Mental Capacity Act Deprivation of Liberty Safeguards (DoLS).

Documents

Details

The Department of Health and ADASS (Association of Directors of Adult Social Services in England) have produced these documents to help local authorities acting as supervisory bodies for the Mental Capacity Act Deprivation of Liberty Safeguards (DoLS).

ADASS reviewed the guidance following the AJ v A Local Authority legal judgement, as explained on ADASS.

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Deprivation of liberty safeguards: resources

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Skip to main content We use some essential cookies to make this website work. We'd like to set additional cookies to understand how you use GOV.UK, remember your settings and improve government services. We also use cookies set by other sites to help us deliver content from their services.

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39 Essex Street Chambers - guidance on relevant information for different decisions

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39 Essex Street Chambers - guidance on relevant information for different decisions

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Access a live court of protection hearing remotely or in person

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Access a live court of protection hearing remotely or in person

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Promoting Open Justice in the Court of Protection

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Promoting Open Justice in the Court of Protection