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Deprivation of Liberty - Getting it Right

By Principal Lawyer, Court of Protection

The Court of Protection continues to be busy dealing with the issue of deprivation of liberty and the Deprivation of Liberty Safeguarding authorisation (DoLS) scheme.

JusticeAnother week and another case highlighting the important safeguards in the DoLS process.

The case of P v Surrey County Council & Surrey Downs Clinical Commissioning Group [2015] EWCOP 54 emphasises the importance of best interests and the least restrictive option when dealing with DoLS, particularly in relation to the period for which someone is to be deprived of their liberty.

P is a young man of 26 with severe learning disabilities and autistic spectrum disorder. He was subject to a DoLS and the court was asked to consider whether the deprivation of his liberty was unlawful.

A seven day urgent DoLS had been put in place when his previous residential placement broke down, but it was some eleven weeks before a standard DoLS was issued – and on the basis of a ten-month deprivation of liberty, despite best interests assessments suggesting that a lesser period would be appropriate.

The court was asked to consider whether the deprivation of P’s liberty – after expiry of the urgent DoLS and under the ten-month standard DoLS – was a breach of his human rights under Articles 5 and 8 of the European Convention on Human Rights.

Numerous decisions of the European Court of Human Rights naturally make plain that the deprivation of a person’s liberty is a significant issue and that all proportionate and lawful steps to authorise a deprivation of liberty must be followed.

The Court of Protection also goes to lengths to carefully investigate the circumstances in which vulnerable and incapacitated people are deprived of their liberty and P cites the important and memorable case of Neary [2011] EWCOP 1377, when tackling the question of whether the necessary conditions for a DoLS were adequately addressed with P.

In P, the judge considered that the best interests assessor and the supervisory body had failed to analyse the necessary conditions for a DoLS sufficiently, stating succinctly:

“...had they done so, they would have asked themselves three questions:

1. What harm, if any, may P suffer if his continued detention is authorised?

2. What placement, or type of placement, would be a more appropriate response?

3. How long will it take to investigate the availability and suitability of a more proportionate response?’’

The judge considered that there was a failure to address these three questions adequately or proactively, and thus a failure to properly address the least restrictive principle.

Like a good many recent cases, P highlights the need for local authorities and NHS bodies, to act proportionately, proactively and swiftly in addressing deprivation of liberty, bringing matters to court if need be, but always focusing squarely on best interests, the least restrictive principle and what it is that a deprivation of liberty seeks to achieve.

It is a welcome reminder of the core principles of the DoLS process as we consider the Law Commission’s Consultation on proposed changes to that very process.

And more on the Consultation shortly!

Richard Copson is a Principal Lawyer in Slater and Gordon’s Court of Protection team, specialising in mental capacity law and human rights law.

For a consultation with a human rights solicitor, call Slater and Gordon Lawyers 24/7 on freephone 0800 916 9046 or contact us online and we’ll be happy to help you.

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