Article 5 of the European Convention on Human Rights provides for a limited right to liberty and security of person (Council of Europe, 1950).
This is incorporated into the Human Rights Act 1998. Article 5 states 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: (e) the lawful detention of persons …. of persons of unsound mind ….’
Human Rights Act 1998, schedule 1, Part 1, article 5
In England and Wales, the Mental Capacity Act 2005 sets out an Article 5-compliant procedure that authorises the deprivation of liberty of a person who lacks capacity.
Section 4A of the Mental Capacity Act 2005 states that the Act does not provide general authority to deprive a person of their liberty. There are two exceptions. A person can deprive another of their liberty if:
- They are giving effect to a court order under section 16(2) of the Mental Capacity Act 2005 or
- They are acting in accordance with an authorisation granted under schedule A1 of the Mental Capacity Act 2005, the administrative deprivation of liberty safeguards process.
Authorising a deprivation of liberty under the safeguards
The deprivation of liberty safeguards are part of an administrative procedure that does not need the involvement of the Court of Protection, where a hospital or care home (the managing authority) responsible for the care of the person applies to a supervisory body for authorisation of that person's deprivation of liberty. The supervisory body would be a local authority in England and Wales, or a health board if the person is in hospital in Wales. The supervisory body commissions assessments to ensure the person meets the requirements for authorisation, and scrutinises those assessments with sufficient independence and care so as to be satisfied that the deprivation of liberty should be authorised.
Depriving a person of their liberty is one of the most serious decisions a public body can make in relation to the care of a vulnerable person. It must be undertaken with the gravitas and seriousness commensurate with the consequences of the authorisation for the person (Hillingdon LB v Neary [2011]).
Errors and omissions
In Hillingdon LB v Neary [2011] the Court of Protection held that by keeping a 21-year-old man with autism and a severe learning disability in its support unit between January and December 2010, rather than returning him home to his father's care, a local authority had acted unlawfully by depriving him of his liberty and failing to take proceedings for a speedy determination of the lawfulness of his detention, contrary to Article 5(1) and (4) of the European Convention on Human Rights and section 4A of the Mental Capacity Act 2005.
Fatal to the lawfulness of the local authority's authorisation of the deprivation of liberty in this case was the supervisory body's acceptance of the assessments on which it based its authorisations. The assessments were held to be flawed and perfunctory by the Court of Protection and should not have passed proper scrutiny by the supervisory body. These flaws and omissions rendered void the authorisation of the deprivation of liberty and the man had been unlawfully detained and awarded compensation.
Assessments commissioned by supervisory bodies must have the forensic rigour to justify its conclusion (Wandsworth LBC v M [2017]). This has remained the case through the COVID-19 restrictions, with the Court of Protection accepting that assessments in relation to the deprivation of liberty safeguards might need to be carried out by remote means (BP v Surrey CC [2020]).
Assessors commissioned to undertake assessments on which deprivation of liberty safeguard authorisations are based and the supervisory body responsible for the authorisation must ensure there is sufficient detail, or forensic rigour, in the assessments to pass the scrutiny required of such a serious decision. Failing to provide assessment reports that meet the requirements to enable authorisation will render that authorisation unlawful.
Do errors in the authorisation documentation always result in unlawful deprivation of liberty?
The question of whether errors in the deprivation of liberty authorisation documentation always result in an unlawful deprivation of liberty was recently considered by the Court of Protection in Re YC [2021]
The case concerned a woman who was 89 years old and had dementia. She had previously lived in her own flat supported by carers but was moved to a residential home after being admitted to hospital 10 times within a year.
A standard authorisation was granted by the local authority as she was found to be deprived of her liberty. However, the authorisation document, form 5, referred to another person instead of the woman some 19 times.
The woman's wish was to return home. Her accredited legal representative challenged the validity of the authorisation, given the nature and number of errors contained within it. However, the legal representative did accept that the underlying assessments and other forms supporting the authorisation were accurately completed in the woman's name. The supervisory body authoriser filed a statement confirming that he had used the other person's name in error, and that the underlying facts in the form related to the woman.
The woman submitted that the nature and sheer number of errors in the form called into question the level of scrutiny of the supervisory body and suggested that there had been gross irregularity that rendered the authorisation void and her deprivation of liberty there unlawful.
The Court of Protection held that circumstances in this current case were to be distinguished from those in the case of Hillingdon LB v Neary [2011] because all the underlying assessments were properly completed; the Court accepted the authoriser's account and there was no suggestion that the outcome differed from that suggested by those commissioned assessments.
The Court of Protection held that the significance of the errors on authorisation form 5 in this case did not render the authorisation void.
Nevertheless, the Court of Protection did recognise that it was most undesirable for the authorisation form 5 to leave any doubt as to whom it referred or whether due process had been followed, even if the errors on the form did not invalidate the authorisation.
Even in the serious domain of authorisation of deprivation of liberty, there had to be room for a degree of pragmatic realism. The woman's argument concerning the scale of the errors, and whether they were errors of form or substance, would be more persuasive if the form were a free-standing document to be read in isolation. However, the section headed ‘Evidence of supervisory body scrutiny’ was only part of the form. The other parts of the form accurately related to the woman and so the judge concluded that the errors were merely typographical.
Best practice guidance
To ensure such errors did not recur, the Court of Protection issued guidance on the procedure to be followed:
- The person granting the authorisation should carefully check that all details on form 5 accurately reflected the other forms and related to the particular patient
- Form 5 should be checked by another member of the authorisation team
- Form 5 should be provided to the relevant person's representative with a covering letter requesting that they check the form, and that all the information accurately related to the relevant person
- Expressly requiring the relevant person's representative to confirm accuracy to the supervisory body would be disproportionate, but the representative could choose do so.
The Court of Protection stressed that this procedure would not delegate the responsibility of the supervisory body for the validity of its authorisations to the representative.
Conclusion
Depriving a person of their liberty calls for rigorous assessment and scrutiny of the requirements and accurate recording of the justification for the authorisation decision and the clarity about to whom the authorisation relates.
Those involved in the deprivation of liberty authorisation process must ensure that the documents supporting the authorisation have the forensic rigour and accuracy to withstand supervisory body scrutiny. Flawed or perfunctory assessment will render the process void and any deprivation of liberty unlawful. However, typographical errors, including using the wrong person's name on the form, are less likely to void the authorisation where the evidence on which it is based is accurate and meets the requirements of the process.
The Court of Protection has issued guidance to avoid such errors or omissions, set out in the Re YC [2021] EWCOP 34 case (https://www.courtofprotectionhub.uk/cases/yc-re-2021-ewcop-34). The Court acknowledges that its guidance would not completely eliminate errors. However, it would improve the opportunity of identifying and addressing errors promptly, including those more serious errors and omissions that might void the authorisation and give the supervisory body the opportunity to initiate a completely new assessment process that would meet the lawful procedural requirements for a deprivation of liberty safeguard to be authorised.
KEY POINTS
- Article 5 of the European Convention on Human Rights provides for a limited right to liberty and security of person
- Deciding to authorise a deprivation of liberty is one of the most serious decisions a public body can make
- Authorisations based on flawed or perfunctory assessments will be unlawful
- Authorisation documentation that contain typographical errors or the name of the wrong person should be avoided but do not necessarily render the process void
- To ensure errors and omissions are detected and corrected and authorisation is lawful, the Court of Protection has issued guidance on the procedure to be followed prior to final authorisation