Challenging deprivations of liberty in care homes and hospitalsDOLS:no authorisation granted, whereDOLS:challenging in care homes and hospitalsDOLSDOLS:no authorisation granted, whereDOLS:challenging in care homes and hospitalsDOLSDOLS:no authorisation granted, whereDOLS:challenging in care homes and hospitalsDOLSDeprivation of liberty:meaningDOLS:no authorisation granted, whereDOLS:challenging in care homes and hospitalsDOLSDeprivation of liberty:meaningDOLS:reviewsDOLS:challenging in care homes and hospitalsDOLS:authorisation granted, whereDOLSDOLS:reviewsDOLS:challenging in care homes and hospitalsDOLS:authorisation granted, whereDOLSDOLS:challenging in care homes and hospitalsDOLS:authorisation granted, whereDOLS:application or reviewDOLS(reproduced in full in appendix B):r3DOLS:challenging in care homes and hospitalsDOLS:authorisation granted, whereDOLS:application or reviewDOLSDOLS:challenging in care homes and hospitalsDOLS:authorisation granted, whereDOLS:application or reviewDOLSDOLS:challenging in care homes and hospitalsDOLS:authorisation granted, whereDOLS:application or reviewDOLS
Where no authorisation has been granted
21.9Schedule A1 provides a useful mechanism which allows a third party who is an ‘eligible person’ to require that the supervisory body decides whether there is an unauthorised deprivation of liberty.
1MCA 2005 Sch A1 paras 67–73. An eligible person is defined as ‘any person other than the managing authority of the relevant hospital or care home’.
2MCA 2005 Sch A1 para 68(5). An eligible person could therefore include:
•the individual who is being detained;
•a member of that individual’s family;
•a professional working with the individual.
21.10An unauthorised deprivation of liberty arises where a person is a ‘detained resident’ in a hospital or care home, and where this has not been authorised under MCA 2005 s4A.
3MCA 2005 Sch A1 para 67. A ‘detained resident’ is defined at MCA 2005 Sch A1 para 6 as:
… a person detained in a hospital or care home – for the purpose of being given care or treatment- in circumstances which amount to deprivation of the person’s liberty.
21.11This will require consideration of whether the person satisfies the ‘acid test’ in
Cheshire West, as a part of deciding whether or not they are deprived of their liberty At this stage, however, no consideration is required as to whether the person fulfils any of the other qualifying requirements for an authorisation.
4Described at paras 3.176–3.188.21.12To exercise the right to involve the supervisory body, the eligible person must first notify the managing authority that it appears to them that there is an unauthorised deprivation of liberty,
5MCA 2005 Sch A1 para 68(2). and must ask the managing authority to request a standard authorisation in relation to the detention. If the managing authority does not request the authorisation within a ‘reasonable period’
6MCA 2005 Sch A1 para 68(4). then the eligible person may request that the supervisory body decides whether or not there is an unauthorised deprivation of liberty. Unless the supervisory body considers the request to be frivolous or vexatious, or unless the question has already been decided and there has been no change in circumstances,
7MCA 2005 Sch A1 para 69 (4)–(5). then the supervisory body must select and appoint a person to assess whether the relevant person is, in fact, detained.
8MCA 2005 Sch A1 para 69(2). If that assessment concludes that the relevant person is detained, this triggers an obligation for the supervisory body to assess the qualifying requirements for an authorisation, as if the supervisory body had requested it in the usual way.
9MCA 2005 Sch A1 para 71(2).Where an authorisation has been granted
Reviews
21.13The supervisory body may carry out a review of a standard authorisation at any time. The supervisory body must carry out a review of a standard authorisation if requested by an eligible person.
10MCA 2005 Sch A1 para 102. For the purpose of reviews, an ‘eligible person’ means P, the RPR or the managing authority.
11MCA 2005 Sch A1 para 102. There is no equivalent procedure for urgent authorisations. The process is set out in detail in MCA 2005 Part 8, Sch A1.
21.14If, following the review process, the supervisory body concludes that one of the qualifying requirements is not met, it should terminate the authorisation with immediate effect.
12MCA 2005 Sch A1 para 117.Application or review?
21.15There is no requirement to request a review before making an application to the court under MCA 2005 s21A. The Part 8 review process is internal and does not provide P with independent scrutiny of whether the criteria for the authorisation are met. Nor does the review process include the considerations of liability available under MCA 2005 s21A(6) and (7). The review process does not and is not intended to meet the requirements of ECHR Article 5(4), namely the entitlement of a detained person ‘to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’.
21.16Practitioners should seek to resolve issues without litigation if at all possible. This stems from the overriding objective and the parties’ duty to assist the court in furthering the overriding objective.
13COPR rr3 and 4/COPR Prr1.3 and 1.4. It may be appropriate to advise the supervisory body of the issues taken with the authorisation before making an application under section 21A. However, as set out in paragraph 21.2 above, section 21A applications are not on the personal welfare pathway for the purposes of the Case Management Pilot and the obligations in the ‘pre-issue’ stage do not apply. Equally, applicants are not required to seek a review before commencing proceedings under section 21A and in our view a decision to proceed directly to an application under section 21A, without requesting a review first, should not attract criticism.
21.17In particular in any case where P is known to be objecting to all or part of his or her care and treatment, or to residence in the relevant hospital or care home, one of the lessons of AJ is that practitioners should be proactive in bringing applications to the court. This advice applies to those advising P, P’s RPR, members of P’s family, as well as those advising the supervisory body.
21.18There may, however, be some cases where practitioners may wish to advise requesting a review before proceeding to court. In the authors’ view, the factors below may point to the use of the review process first:
•There is reason to believe, from correspondence or initial discussion with the supervisory body or their advisers, that there is a realistic possibility that agreement to terminate or vary the authorisation will be reached.
•The practitioner is advising a third party who is not P’s RPR and is unlikely to be appointed as P’s litigation friend, and that third party is not financially eligible for legal aid.
•In both cases, there is no risk that P will suffer distress and/or harm if the status quo continues pending the review.