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A County Council v MB [2010] EWHC 2508 (COP)

Declaration sought by an 80 year old woman (MB) with severe Alzheimer’s that she was unlawfully deprived of her liberty after expiration of a standard authorisation given under Schedule A1 to the Mental Capacity Act 2005 and prior to the making of an order under s.16 MCA authorising her deprivation of liberty at a residential home. Declaration granted.

This period of deprivation had come about firstly by the managing authority (the Home) issuing an urgent authorisation, and secondly by the supervisory authority (the County Council) acceding to a request to extend the period of the urgent authorisation. The need for the urgent authorisation had arisen on account of the receipt of a best interest assessor's report stating that the continued deprivation of MB's liberty at the home was not in her best interests on account of her weight loss and distress at the home. However, the assessor had also concluded that it was unlikely that MB's husband, who had previously injured her while trying to restrain her, would be able to cope with her at home; the judge accepted that it would not be in her interests to return home either. The Home and County Council took the view that MB's best interests would be served by keeping her at the home pending application to the Court of Protection. The question for the court was whether this continued deprivation of liberty was in accordance with Deprivation of Liberty Safeguards (DOLS) provided by MCA 2005, or was otherwise lawful.

Charles J examined in detail the provisions relating to the duration of authorisations of deprivations of liberty contained in Schedule A1 to the Mental Capacity Act 2005, and gave clear guidance on good practice when setting out the periods for urgent and standard authorisations.

The judge also considered whether the provisions of s.4B MCA 2010, regarding the deprivation of liberty in order to provide a person with life-giving treatment,  had any effect on his conclusion that the actions of the Home and the County Council had been unlawful. He decided that the actions had not been taken with a belief that the deprivation was necessary in order to give life-sustaining treatment or in order to carry out an act necessary to prevent a serious deterioration in condition (s.4B(3) and (4)), and that the actions were not thereby rendered lawful. Despite the judge's view that the Home and County Council were acting conscientiously, in MB's best interests, with reasonable speed, and in a non-arbitrary manner, he could not agree that they were acting in accordance with MCA 2005 procedure.

The judge fully accepted that the Home and County Council were in a very difficult position and, at paragraph 100, provided a list of good practice tips to assist such bodies in future. This list emphasises that all bodies involved in such cases should be very aware of the relevant periods of existing authorisations and give careful consideration to the steps needed to continue such authorisations before they expire.

Summary by Gillon Cameron of 14 Gray's Inn Square

__________________________

Neutral Citation Number: [2010] EWHC 2508 (COP)
Case No: 11825360
IN THE COURT OF PROTECTION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 22/10/2010

Before :
Mr JUSTICE CHARLES

Between :
A County Council Applicant
 
- and - 
 
MB 1st Respondent
(by the Official Solicitor as her litigation friend)

and

JB 2nd Respondent

and

A Residential Home 3rd Respondent

Neil Allen (instructed by the County Council) for the Applicant
Bridget Dolan (instructed by the Official Solicitor) for the First Respondent MB

Hearing dates: 7 and 8 September 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment

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

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

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

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

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

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

A timetable and some cross reference to the provisions of Schedule A1 to the MCA 2005  and the issues raised concerning them
7. The Residential Home is the managing authority and the Applicant is the supervisory body.

8. The First Urgent Authorisation.

i) On 22 February 2010, MB was admitted to the Residential Home.

ii) On the same day, the managing authority issued an urgent authorisation of her deprivation of liberty there, under MCA Sch A1 part 5.  This was  recorded on form UA1.

iii) An urgent authorisation can last for a maximum of 7 days (MCA Sch A1 paragraph 78(2)). The UA1 Form provides for recording the date (but not the time) that an urgent authorisation commences.  It was recorded that the authorisation commences on 22 February 2010 and will come to an end on 1 March 2010 (its author having crossed out 29 February 2010 presumably because there was not one in 2010).

iv) Time issues were raised as to the period of the authorisation of the deprivation of liberty given by the first urgent authorisation.  

9. The First Standard Authorisation.

i) On 24 February 2010, the managing authority completed form SA1 requesting a standard DOLS authorisation from the Applicant (as the supervisory body) pursuant to MCA Sch A1 paragraph 24.

ii) The Applicant appointed Ms SP and Dr MK as respectively the best interests and mental health assessors.   

iii) All six assessments were completed by 26 February 2010. 

iv) All of the six qualifying requirements were met and the standard authorisation that was given is dated 1 March 2010 under the words "Accordingly this standard authorisation is given" and the signature of the relevant person. 

v) Earlier in the form under the words "duration of authorisation" it is stated that it "will come into force on Monday 1 March 2010 and will remain in force until Monday 29 March 2010 unless the supervisory body notified otherwise".

vi) The best interests assessment provided that "the maximum period it is appropriate for a standard authorisation to be in force is one month".

vii) Time issues arose as to the period of the authorisation of Mrs B's deprivation of liberty given by this first standard authorisation, but as mentioned above by the end of the hearing it was accepted (in my view correctly) that it ended at midnight on Monday 29 March 2010 (which is within the period of one month set by the best interests assessor as the authorisation is stated to come into force on 1 March).

10. The Second Standard Authorisation.

i) On 16 March 2010, the managing authority requested a further standard authorisation (pursuant to MCA Sch A1 paragraph 29).

ii) Following her second best interests assessment, on 28 March 2010 Ms SP determined that Mrs B was deprived of her liberty but that the best interests requirement was not met.

iii) In the absence of a positive best interests assessment no further standard authorisation was (or could be) issued by the Applicant (as the supervisory body) and the existing standard authorisation remained in force until its expiry (see MCA Sch A1 paragraph 50).

iv) The supervisory body (the Applicant) gave written notice that they were prohibited from issuing a standard authorisation to the managing authority (pursuant to MCA Sch A1 paragraph 58(2)(a)) on 1 April 2010.

v) The managing authority were aware by at the latest 30 March 2010 (and on my reading of the evidence on 28 or 29 March – albeit that I have not found an express reference to this) that the best interests assessment did not support the giving of a further standard authorisation and thus that that essential qualifying requirement for the further standard authorisation it had requested was not met.

11. The Second Urgent Authorisation.

i) On 30 March 2010, at the request of the Applicant (the supervisory body) who had obtained urgent legal advice, the managing authority issued an urgent authorisation.

ii) That second urgent authorisation is dated 30 March 2010 and states that it commences on 30 March 2010 but leaves blank the box on the form UA1 that states when it will come to an end (contrary to MCA Sch A1 paragraph 80(c)). The maximum period of validity for an urgent authorisation is 7 days (MCA Sch A1 para 78(2)).  It records that the purpose for which this urgent authorisation is given is:

"Mrs B's social care team have requested that Mrs B remain at [the Residential Home] until her best interests can be determined by the Court of Protection, she will need to be deprived of her liberty pending the court's decision."

iii) On 31 March 2010 at 7.32pm, Form UA1 (dated 30 March 2010) and Form UA2 (dated 1 April 2010) were faxed to the supervisory body (the Applicant) by the managing authority (the Residential Care Home). By the Form UA2 the managing authority requested (under MCA Sch A1 paragraph 77(3)) that the Applicant (the supervisory body) extend the period of the urgent authorisation pending an application to the Court of Protection.  This request stated that:

"It is essential for the existing detention to continue until the request for a standard authorisation has been disposed of, because:
Social care team have requested that Mrs B remain at the Residential Home pending Court of Protection decision.  A seven day extension is requested so that this might progress."

iv) The form recording the Applicant's (the supervisory body's) determination that an extension to 13 April should be granted is dated 31 March 2010. 

That form records that:

"The exceptional reasons why it has not been possible to dispose of the request for a standard authorisation is that:

An application is to be made to the Court of Protection for an urgent judgment as to Mrs B's best interests

And it is essential for the existing deprivation of liberty to continue until  the request is disposed of because:

The social care team are concerned that Mrs B would be at risk of harm if she were to return home"

v) Part 2 of the Form UA1, which relates to the extension of an urgent authorisation is dated 31 March 2010 and states that the urgent authorisation is varied and will now be in force until 13 April 2010.

vi) The validity of the second urgent authorisation and its extension is challenged. 

vii) Additionally, some timing points relating to them were identified but (understandably) were not argued at any length.

12. The Application to the Court.

i) On 6 April 2010, the Applicant completed the forms required for an application to the Court of Protection, the Official Solicitor was notified of the proceedings and a provisional hearing date of 13 April 2010 was organised with the High Court Listing Officer.

ii) On 7 April 2010, the Applicant lodged an application to the Court of Protection.  In section 3 of the form under the heading "Details of issue to be challenged" the Applicant stated that the date of the decision was 30/3/2010, and in respect of the boxes relating to the introduction "Where an urgent authorisation has been given, the court may determine any question relating to any of the following matters" the Applicant ticked the following:

But did not tick

iii) Under the heading "Other issues in the case" the Applicant asserted (amongst other things) that:

"The view of the best interests assessor was not that held by the multi-disciplinary group which met look at Mrs B's best interests.  It was the decision of that group that Mrs B needed to remain in a care home, where she receives the physical care she needs in a setting where there is no risk of assault or restraint.  The local authority intended to continue the attempt to resolve matters so far as Mr B was concerned by a further best interests meetings.  They met with Mr B and his advocate to explain that, if Mr B remained opposed to Mrs B staying in [ the Residential Home ] following a further bests interest meeting it will be necessary to refer the matter to the Court of Protection.  The further best interests meeting did not take place as it became necessary to refer the matter to the Court of Protection in any event when the best interests assessor felt unable to make a decision.

The court is requested to determine what would be in Mrs B's best interests: to return home to her husband, in familiar surroundings and with her partner of nearly 60 years, but with a risk of being over- restrained, slapped or assaulted; or to remain in a care home, safe from harm but not in her own home or with her husband.

Mr B does visit his wife at the home, and is allowed to take her away from the home, as long as he is accompanied by a responsible family member or a member of staff.  The issue of contact is a further issue for consideration by the court. "

iv) Initial directions were made by District Judge Rogers on 7 April 2010. The court was not asked to make, nor did it make, any order authorising the ongoing deprivation of liberty. The directions order noted that an urgent authorisation was in place.

v) On 13 April 2010, I made an order that authorised Mrs B's deprivation of liberty at the Residential Home pursuant to sections 4A(3)-(4) and 16(2)(a) of the Mental Capacity Act 2005.

vi) No timing points were raised as to when that authorisation became effective, but in writing this judgment it occurred to me that similar points arose in this respect to ones that were raised in respect of the giving of the authorisations.

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

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

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

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

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

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

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

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

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

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

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

i) she was clearly performing her role conscientiously,
ii)  she had a difficult, important and independent  role to play, and
iii) I agree with her views that further assessment and investigation of, for example, (a) whether Mrs B's mental health was being detrimentally affected by her detention (if I add she appreciated that she was being detained), and I add simply by her being away from her home, and (b) how practically her distress, loss of functioning and appetite could be addressed, was appropriate.

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

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

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

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

i) to send her home without 24 hour support, which they and it seems Ms SP agreed and which the Official Solicitor and the court later agreed would place her at risk of harm and would not be in her best interests, or

ii) to remove all restraints on her ability to leave the Residential Home or on Mr B from removing her which again they considered would not be in her best interests and later both the Official Solicitor and the court agreed with this view (and it is unclear whether this is what Ms SP was suggesting for the immediate future).

Unsurprisingly therefore the motivation of the Applicant and the Residential Home was to take a course:

a) which promoted what they believed to be, and which later (and without relevant changes in the circumstances) and the Official Solicitor and the court agreed was  in Mrs B's best interests and which (namely that she remain appropriately detained at the Residential Home), and

b) which was lawful and thus did not involve a breach of Article 5.

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

The positions of the parties in broad terms
29. MB seeks the declaration I have referred to.

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

i) they were authorised to deprive MB of her liberty by s. 4B MCA 2005, alternatively
ii) the deprivation of liberty was authorised by the second urgent authorisation, and
iii) in any event, there was no arbitrary deprivation of liberty and therefore there was no breach of MB's Article 5 rights.

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

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

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

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

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

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

i) the nature of an authorisation and its purpose, because absent express provision this indicates that it should only take effect from the time it is given, and

ii) the express provision that a standard authorisation can provide that it comes into force at a time later than the time it is given but not at an earlier time (see paragraphs 52 and  63(2)), because this provision relating to standard authorisations indicates that authorisations cannot be "back-dated".

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

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

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

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

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

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

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

i) includes the whole of the day on which the relevant period starts, and
ii) ends at the end of the last day,
would produce a result that the maximum period of 7 days allowed was not exceeded. 

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

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

i) at the exact time on the day when it is given (see paragraphs 54 and 63(1)), or
ii) as provided by paragraphs 52 and 63(2) at a later time specified in the document giving the authorisation.

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

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

i) a period of a month or months (which would in my view be calendar months as a matter of the ordinary use of language – and see by analogy s. 5 and Schedule 1 Interpretation Act 1978), or days, is so specified, or

ii) the maximum of one year is the relevant period,

in my view (for the same reasons as given in respect of an urgent authorisation) unless and until it is decided that a maximum period can be set by reference to the exact time when a standard authorisation is given the maximum period that can be included in the authorisation should be calculated by including the whole of the day on which the authorisation is given (or expressed to start) and on the basis that it ends at the end of the last day.

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

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

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

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

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

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

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

• Whether the failure to give an end date rendered the authorisation ineffective and, if it did not, did it last for the maximum period (or until the time when it would have come to an end during that period if it had been specified in the authorisation).
• Whether actual, but not written, notice brings an end to an urgent authorisation pursuant to paragraph 89(4).
• If, contrary to my view, a second urgent authorisation can be and is given because the supervisory body is prohibited from giving the requested authorisation what is the impact or relevance of paragraph 89(4).

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

Guidance on issues relating to the duration of authorisations of deprivations of liberty.     
56. In my view, the issues arguments and conclusions set out above demonstrate that:

• Care needs to be taken in setting out the periods for which urgent and standard authorisations are given
• Authorisations do not run from the beginning of (or from an earlier time on) the day on which they are given
• It would be good practice to record the actual time at which an urgent authorisation and a standard authorisation (which does not run from the expiry of, or a specified time before the expiry of, an existing standard authorisation) was given on the form recording its grant
• In any event a record of the exact time on which all authorisations are given should be kept
• An approach that:

i) includes the whole of the day on which the relevant period starts, and
ii) ends at the end of the last day,

would produce a result that the maximum period(s)

i) allowed for urgent authorisations and their extension of 7 days, and
ii) allowed for standard authorisations, if that is set by a period of days, months or a year,

were not exceeded. 

The validity of the second urgent authorisation and whether the steps taken between the end of the first standard authorisation and the order made on 13th April authorised Mrs B's continued deprivation of liberty.
57. In interpreting the relevant provisions of the MCA 2005 and its Schedules in respect of this and the other aspects of the case I accept the submission made on behalf of the Applicant that the underlying principles applied by the ECHR to Article 5 support the view that a strict and inflexible interpretation of them that requires managing authorities, supervisory bodies and the courts to take a course that might fail to protect a detained resident's best interests, should not be adopted.  Also I have not forgotten s. 3 of the Human Rights Act 1998.

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

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

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

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

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

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

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

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

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

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

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

i) the request made for the second standard authorisation, or
ii) an obligation to make a further request under paragraph 24 (the third case) or paragraph 25 (which applies on a move and not here). 

In my view it cannot be either.

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

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

71. No further request for a standard authorisation was made. 

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

73. This is because:

i) for the reasons given such a request could not be the trigger to the giving of a further urgent authorisation (see paragraph 77 of Schedule A1 and above), and

ii) it would not have founded an application under s. 21A as that section is directed to authorisations that have been given rather than requests and no point arose under the first urgent and standard authorisations.  

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

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

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

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

Does section 4B render Mrs B's continued deprivation of liberty between the end of the first standard authorisation and the order made on 13th April lawful?
78. Sections 4A and 4B provide (with my emphases):

4A Restriction on deprivation of liberty
(1)  This Act does not authorise any person ("D") to deprive any other person ("P") of his liberty.
(2)  But that is subject to

(a)  the following provisions of this section, and
(b)  section 4B.

(3)  D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.
(4)  A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P´s personal welfare.
(5)  D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).

4B Deprivation of liberty necessary for life-sustaining treatment etc
(1)  If the following conditions are met, D is authorised to deprive P of his liberty while a decision as respects any relevant issue is sought from the court.
(2)  The first condition is that there is a question about whether D is authorised to deprive P of his liberty under section 4A.
(3)  The second condition is that the deprivation of liberty–

(a) is wholly or partly for the purpose of

(i) giving P life-sustaining treatment, or  
(ii) doing any vital act , or

(b) consists wholly or partly of

(i) giving P life-sustaining treatment, or
(ii) doing any vital act.

(4)  The third condition is that the deprivation of liberty is necessary in order to–

(a)  give the life-sustaining treatment, or 
(b)  do the vital act.

(5)  A vital act is any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in P´s condition.

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

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

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

80. In my view, it is therefore clear from:

i) the language of the definitions of life sustaining treatment and vital acts, and
ii) the context in which they describe purposes that protect persons doing acts whilst decisions are sought by the court,

that they are far from being synonymous with a best interests test, albeit that they could found a best interests decision. 

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

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

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

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

i) the evidence shows that (a) the section, and (b) the tests it contains were not considered by the relevant decision makers at the time, 

ii) the evidence is not directed to, and does not indicate, whether the best interests reasoning of the relevant decision makers in fact encompassed the test set by s. 4B, namely whether the deprivation of Mrs B's liberty was in their view necessary to prevent a serious deterioration in her condition, and consequently

iii) the evidence was not directed to whether that belief was, or would have been, reasonably held by the relevant persons.

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

i) they do not show or establish that this is what the relevant persons  believed and/or that in reaching their conclusions (later shared by the Official Solicitor and the court) on best interests their reasoning included that belief (albeit that they did not address it expressly), and

ii) they do not enable the court to properly evaluate the reasonableness of the belief by reference, for example, to the impact on Mrs B's condition of (a) a move back home (whether or not followed shortly by another move to residential care) or (b) the lifting of her deprivation of liberty at the Residential Home, and thus whether it was (or would have been) reasonable to believe that such changes would result (or be likely to result) in a serious deterioration of her mental health (which sadly deteriorated to an extent that she was  detained under s. 3 Mental Health Act in May 2010) or her physical health and functioning because of the change in placement, her wandering away from home or her treatment at home.

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

i) was multi-faceted and involved the consideration of a number of matters that could have different causes or results, and
ii) need not be, and in my view was not, dependent on a view that any of the alternatives (including a return home and the risks it carried) would bring about in the short term a serious deterioration in Mrs B's condition or its symptoms and manifestations. 

Indeed the best interests assessment is not focused on that point as the test set by s. 4B has to be.

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

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

i) the Residential Home did not issue the proceedings,

ii) it seems that the Applicant (who did issue the proceedings) was relying only on s. 21A rather than ss. 4A and 16 MCA 2005 in issuing the proceedings, and in them

iii) the Applicant did not raise expressly whether the second urgent authorisation lawfully authorised a deprivation of Mrs B's liberty and thus whether the Residential Home and/or the Applicant were so entitled to deprive Mrs B of her liberty,
that it is arguable that ss. 4B(1) and (2) would have been satisfied in this case, if the existence of the belief referred to in subsections 4B(3) and (4) had been established by the evidence. 

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

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

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

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

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

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

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

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

Lessons to be learned / guidance
97. Background.  The Applicant correctly pointed out that problems can arise:

i) in the event of disagreement between a best interests, or other, assessor and those involved in a detained resident's care, and

ii) in respect of the appropriate time to end a deprivation of liberty of a person who is to be (and is) discharged from a residential home, or hospital, where he has been deprived of his liberty.

The Applicant invited the court to give guidance in respect of them.
98. As a background to this invitation, and the submissions made on behalf of the Applicant concerning the actions taken in the light of the difficulties in this case, counsel for the Applicant drew my attention to the following points, which I accept, namely:

i) In the present case, it would not have been in Mrs B's best interests to immediately return home, or to remain at the Residential Home without a continuation of safeguards which prevented her leaving or being removed therefrom, other than in agreed circumstances, and therefore the Applicant and the Residential Home faced a number of difficulties concerning what should be done in, and to promote, Mrs B's best interests as a result of the best interests assessment relating to the request for the second standard authorisation.

ii) In relation to discharge from Article 5(1)(e) detention, the jurisprudence has typically involved situations where:

a) the person is mentally ill and requires treatment but, under appropriate conditions, such treatment can be provided in the community (see R (K) v Camden and Islington Health Authority [2002] QB 198); or

b) the person is no longer suffering from mental illness, is not in need of treatment but needs to be discharged into a controlled environment in order to reduce the stress involved, to make sure that he is indeed free of the illness and to reduce the risk that the illness may recur (see Johnson v United Kingdom (1997) 27 EHRR 296).

According to domestic and European law, neither scenario leads inevitably to that person's immediate and unconditional discharge from detention, although in the latter, discharge must not be unreasonably delayed. As the Master of the Rolls stated in R (K) v Camden and Islington Health Authority [2002] QB 198, at paragraphs 33-34:

"Where (i) a patient is suffering from mental illness, and (ii) treatment of that illness is necessary in the interests of the patient's own health or for the protection of others, and (iii) it proves impossible or impractical to arrange for the patient to receive the necessary treatment in the community, it seems to me that the three criteria identified by the European Court of Human Rights in Winterwerp's case 2 EHRR 387 are made out. Whether or not it is necessary to detain a patient in hospital for treatment may well depend upon the level of facilities available for treatment within the community. Neither article 5 nor European Court of Human Rights jurisprudence lays down any criteria as to the extent to which member states must provide facilities for the care of those of unsound mind in the community, thereby avoiding the necessity for them to be detained for treatment in hospital.

If a health authority is unable, despite the exercise of all reasonable endeavours, to procure for a patient the level of care and treatment in the community that a tribunal considers to be a prerequisite to the discharge of the patient from hospital, I do not consider that the continued detention of the patient in hospital will violate the right to liberty conferred by article 5."

The House of Lords has subsequently endorsed this reasoning in R v Secretary of State for the Home Department, ex parte IH [2003] UKHL 59 at paragraph 28 (and see R (W) v Doncaster MBC [2004] EWCA Civ 378 where detention prolonged by a Local Authority's failure to procure after-care services did not breach Article 5).

iii) In G v E and others [2010] EWHC 1115, Baker J. ruled that a best interests approach should be adopted to govern an incapacitated person's discharge from detention. His Lordship stated that:

" … it would be quite contrary to [E]'s best interests to insist upon his immediate return home because of a narrow, inflexible interpretation of Article 5".

In those circumstances, discharge was delayed in his best interests whilst preparations for his return home could be made.

iv) To immediately discharge a detained resident from a care home, or to remove the provisions relating to his deprivation of liberty there, may engage, and risk violating, his other human rights even when the change of residence that is planned would not, when it is ready to be implemented, involve a deprivation of his liberty. 

v) Detained residents are owed a duty of care by the relevant authority and immediate discharge or removal of the provisions relating to deprivation of liberty might expose that authority to the risk of liability in negligence for the foreseeable consequences of such actions.

vi) In accordance with s.47(1) of the NHS and Community Care Act 1990, a Local Authority is duty bound to carry out a community care assessment of detained residents and, having regard to the results, then decide whether those needs call for the provision of any community services and to construct a care plan to detail how those needs will be met by the specified services.

vii) The existence of the common law doctrine of necessity and its interface with the power to issue urgent authorisations under Schedule A1 has not been judicially explored since the Bournewood litigation.  (I add that this is not the case in which this should be done and no argument was addressed to me on it).

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

i) do not found the conclusion

a) that the course taken by the Applicant and the Residential Home of giving and extending a further urgent authorisation and applying to the court were in accordance with DOLS, or

b) that the continued deprivation of liberty was authorised by s. 4B MCA 2005, and

ii) could have been addressed within the procedure provided by the MCA 2005 and its Schedules.

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

• In the case of an "existing detention" there can only be one urgent authorisation and therefore after the end of the first urgent authorisation it can only be authorised by either (a) a standard authorisation, or (b) a court order.

• All involved should be very aware of the relevant periods of an existing authorisation and time the steps to be taken to continue it, or address problems as to the continuation of a deprivation of liberty, before it expires.

• The "period of grace" or extension to the end of the existing standard authorisation (see paragraph 62(3)) is the period provided by DOLS to take appropriate steps if the supervisory body is precluded from giving a standard authorisation if all of the assessments are not positive.  It is therefore the period provided to the supervisory body and the managing authority to take the appropriate steps to address a difference of opinion with an assessment.

• Assessors should have regard to the alternatives that are practically available and in the case of the best interests assessor their ability to set the maximum length of any standard authorisation (see paragraph 51(2)).  This is relevant to the continuation of a standard authorisation, for a short time, whilst changes or assessments are considered or carried out.

• The court is the forum identified by DOLS and the MCA to resolve (i) a breakdown of the authorisation of a deprivation of liberty by the authorisation process set by Schedule A, and (ii) whether P can lawfully be deprived of his liberty if an authorisation (or a further authorisation) cannot be granted or is disputed.

• Applications can be made to the court under s. 21A in respect of authorisations that have been granted and the section specifies the limited extent of the relief that can be given thereunder.

• It is unlikely that s. 21A will be applicable where the problem is that an authorisation or a further authorisation cannot be given.  But then, and in other circumstances, an order that authorises a deprivation of liberty can be sought under ss. 4A, 16, 47 and 48 from the court.

• If they are urgent, such applications to the court can be brought before the High Court Judge in the Family Division designated to hear urgent applications in and out of court hours.

• Supervisory bodies and managing authorities should take steps (i) to bring the statutory provisions relating to applications to the court to the notice of their decision makers, and (ii) to ensure that they are aware that pending a court decision they can either:

i) rely on s. 4B, and that to do so they should expressly address the test set out therein and record their reasoning as to why they believe it  is satisfied, or

ii) seek an interim order from the court to authorise a continuation of an existing detention.

• An application to the court can be made and dealt with as a matter of urgency and supervisory bodies and managing authorities should take steps to ensure that their decision makers know, or have easy access to the current methods to contact (i) the Court of Protection and the DoL team at the court (as to which the telephone number in the Practice Direction supplementing Part 10A of the COP Rules is out of date), and (ii) the Family Division of the High Court to make an urgent application to the Applications judge during court hours and the Duty judge out of court hours   

Was the period of the unauthorised deprivation of liberty not a breach of Article 5 because it was not arbitrary?
101. The relevant parts of Article 5 of the ECHR provide: 

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

(e) the lawful detention … of persons of unsound mind …;

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

102. As submitted on behalf of the Applicant:

i) these paragraphs provide 'distinctive and cumulative protections.' Article 5(1) 'strictly regulates the circumstances in which one's liberty can be taken away' whereas Article 5(4) 'requires a review of its legality thereafter' (see HL v United Kingdom (2004) 40 EHRR 761,  at paragraph 123),

ii)  the key purpose of Article 5 is to prevent arbitrary or unjustified deprivations of liberty (see  McKay v United Kingdom (2007) 44 EHRR 41,  at paragraph 30),

iii) the phrase 'in accordance with a procedure prescribed by law' refers back to domestic law. The European Court of Human Rights ('ECtHR') has stated that 'the conditions for deprivation of liberty under domestic law must be clearly defined' (see Kawka v Poland (Application No. 25874/94, 9th January 2001), at paragraph 49).

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

i) define the DOLS process and within it how, and the periods for which, a deprivation of liberty can be authorised by an urgent and a standard authorisation,

ii) empower the court to authorise a deprivation of liberty when the authorisation process does not apply or breaks down and if the authorisation process is challenged, and

iii) provide through (a) s. 4B MCA 2005 and (b) interim order of the court a process by which an existing detention can continue to be authorised pending the final decision of the court.

They therefore provide a procedure that enables existing and expected deprivations of liberty to be authorised whilst they continue.

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

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

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

107. I accept that:

i) the Applicant and the Residential Home acted conscientiously, in what they considered to be Mrs B's best interests and with reasonable speed (having regard to the route they took of giving, extending and relying on the second urgent authorisation),

ii) the Applicant (and the Residential Home) were seeking an order from the court, and thus that

iii) in a general sense they were not acting in an arbitrary manner.

But, in my view, this does not mean that they were acting in accordance with the procedure prescribed by the MCA 2005 and its schedules (and thus by domestic law) for the purposes of Article 5.  Also, as I have pointed out, that procedure includes provisions that the Applicant (and the Residential Home) could have considered and possibly applied (s. 4B MCA), or taken (application to the court for an interim order) to authorise the continuation of the existing detention of Mrs B on and after the expiry of the first standard authorisation.

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


SCHEDULE TO JUDGMENT
PART 1
Issues relating to the duration of authorisations
The most relevant paragraphs of Schedule A1, with my emphasis in italics, are set out below.
i) In respect of Urgent Authorisations:
"78 (1) If the managing authority decide to give an urgent authorisation, they must decide the period during which the authorisation is to be in force.

(2) That period must not exceed 7 days.

79 An urgent authorisation must be in writing.

80 An urgent authorisation must state the following things–

(a) the name of the relevant person;
(b) the name of the relevant hospital or care home;
(c) the period during which the authorisation is to be in force;
(d) the purpose for which the authorisation is given.

82 (1) This paragraph applies if an urgent authorisation is given.
(2) The managing authority must keep a written record of why they have given the urgent authorisation.
(3) As soon as practicable after giving the authorisation, the managing authority must give a copy of the authorisation to all of the following–

(a) the relevant person;
(b) any section 39A IMCA.

84 (1) This paragraph applies if the managing authority make a request under paragraph 77 for the supervisory body to extend the duration of the original authorisation.
(2) The managing authority must keep a written record of why they have made the request.
(3) The managing authority must give the relevant person notice that they have made the request.
(4) The supervisory body may extend the duration of the original authorisation if it appears to them that–

(a) the managing authority have made the required request for a standard authorisation,
(b) there are exceptional reasons why it has not yet been possible for that request to be disposed of, and
(c) it is essential for the existing detention to continue until the request is disposed of.

(5) The supervisory body must keep a written record that the request has been made to them.
(6) In this paragraph and paragraphs 85 and 86–

(a) "original authorisation" and "existing detention" have the same meaning as in paragraph 77;
(b) the required request for a standard authorisation is the request that is referred to in paragraph 76(2) or (3).

85 (1) This paragraph applies if, under paragraph 84, the supervisory body decide to extend the duration of the original authorisation.
(2) The supervisory body must decide the period of the extension.
(3) That period must not exceed 7 days.
(4) The supervisory body must give the managing authority notice stating the period of the extension.
(5) The managing authority must then vary the original authorisation so that it states the extended duration.
(6) Paragraphs 82(3) and 83 apply (with the necessary modifications) to the variation of the original authorisation as they apply to the giving of an urgent authorisation.
(7) The supervisory body must keep a written record of–

(a) the outcome of the request, and
(b) the period of the extension.

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

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

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

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

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

(5) In this paragraph–

• "required request" means the request referred to in paragraph 76(2) or (3);
• "requested authorisation" means the standard authorisation to which the required request relates
.

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

ii) In respect of standard authorisations:
"42 (1) The assessor must state in the assessment the maximum authorisation period.  {Note: this is the best interests assessment}

(2) The maximum authorisation period is the shorter of these periods

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

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

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

(a) all assessments are positive, and
(b) the supervisory body have written copies of all those assessments.

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

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

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

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

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

54 A standard authorisation must be in writing.

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

(a) the name of the relevant person;
(b) the name of the relevant hospital or care home;
(c) the period during which the authorisation is to be in force;
(d) the purpose for which the authorisation is given;
(e) any conditions subject to which the authorisation is given;
(f) the reason why each qualifying requirement is met.

58 (1) This paragraph applies if–

(a) a request is made for a standard authorisation, and
(b) the supervisory body are prohibited by paragraph 50(2) from giving the standard authorisation.

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

(a) the managing authority of the relevant hospital or care home;
(b) the relevant person;
(c) any section 39A IMCA;
(d) every interested person consulted by the best interests assessor.

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

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

(a) the standard authorisations that they have given;
(b) the requests for standard authorisations in response to which they have not given an authorisation;
(c) in relation to each standard authorisation given: the matters stated in the authorisation in accordance with paragraph 55.

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

(a) paragraph 25 (change in place of detention);
(b) paragraph 30 (existing authorisation subject to review).

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

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

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

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

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

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

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

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

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

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

(a) the managing authority of the relevant hospital or care home;
(b) the relevant person;
(c) the relevant person´s representative;
(d) every interested person consulted by the best interests assessor.

(4) The supervisory body must give that notice as soon as practicable after the authorisation ceases to be in force. 66 A request for a standard authorisation is to be regarded for the purposes of this Schedule as disposed of if the supervisory body have given

(a) a copy of the authorisation in accordance with paragraph 57, or
(b) notice in accordance with paragraph 58."

iii) In respect of both authorisations:

"169 Any notice under this Schedule must be in writing."


PART 2
The validity of the second urgent authorisation

The most relevant paragraphs of Schedule A1, with my emphasis in italics, are set out below.

Duty to request authorisation: basic cases

24 (1) The managing authority must request a standard authorisation in any of the following cases.
(2) The first case is where it appears to the managing authority that the relevant person–

(a) is not yet accommodated in the relevant hospital or care home,
(b) is likely – at some time within the next 28 days – to be a detained resident in the relevant hospital or care home, and
(c) is likely–

(i) at that time, or
(ii) at some later time within the next 28 days,
to meet all of the qualifying requirements.

(3) The second case is where it appears to the managing authority that the relevant person–

(a) is already accommodated in the relevant hospital or care home,
(b) is likely – at some time within the next 28 days – to be a detained resident in the relevant hospital or care home, and
(c) is likely–

(i) at that time, or
(ii) at some later time within the next 28 days,
to meet all of the qualifying requirements.

(4) The third case is where it appears to the managing authority that the relevant person

(a) is a detained resident in the relevant hospital or care home, and
(b) meets all of the qualifying requirements, or is likely to do so at some time within the next 28 days.

(5) This paragraph is subject to paragraphs 27 to 29.

Duty to request authorisation: change in place of detention

25 (1) The relevant managing authority must request a standard authorisation if it appears to them that these conditions are met.
(2) The first condition is that a standard authorisation–

(a) has been given, and
(b) has not ceased to be in force.

(3) The second condition is that there is, or is to be, a change in the place of detention.

(4) This paragraph is subject to paragraph 28.

26 (1) This paragraph applies for the purposes of paragraph 25.
(2) There is a change in the place of detention if the relevant person–

(a) ceases to be a detained resident in the stated hospital or care home, and
(b) becomes a detained resident in a different hospital or care home ("the new hospital or care home").

(3) The stated hospital or care home is the hospital or care home to which the standard authorisation relates.

(4) The relevant managing authority are the managing authority of the new hospital or care home.

Other authority for detention: request for authorisation
27 (1) This paragraph applies if, by virtue of section 4A(3), a decision of the court authorises the relevant person to be a detained resident.

(2) Paragraph 24 does not require a request for a standard authorisation to be made in relation to that detention unless these conditions are met.

(3) The first condition is that the standard authorisation would be in force at a time immediately after the expiry of the other authority.

(4) The second condition is that the standard authorisation would not be in force at any time on or before the expiry of the other authority.

(5) The third condition is that it would, in the managing authority´s view, be unreasonable to delay making the request until a time nearer the expiry of the other authority.

(6) In this paragraph–

(a) the other authority is–

(i) the decision mentioned in sub-paragraph (1), or
(ii) any further decision of the court which, by virtue of section 4A(3), authorises, or is expected to authorise, the relevant person to be a detained resident;

(b) the expiry of the other authority is the time when the other authority is expected to cease to authorise the relevant person to be a detained resident.

Request refused: no further request unless change of circumstances
28 (1) This paragraph applies if

(a) a managing authority request a standard authorisation under paragraph 24 or 25, and
(b) the supervisory body are prohibited by paragraph 50(2) from giving the authorisation.

(2) Paragraph 24 or 25 does not require that managing authority to make a new request for a standard authorisation unless it appears to the managing authority that

(a) there has been a change in the relevant person´s case, and
(b) because of that change, the supervisory body are likely to give a standard authorisation if requested.

Authorisation given: request for further authorisation
29 (1) This paragraph applies if a standard authorisation–

(a) has been given in relation to the detention of the relevant person, and
(b) that authorisation ("the existing authorisation") has not ceased to be in force.

(2) Paragraph 24 does not require a new request for a standard authorisation ("the new authorisation") to be made unless these conditions are met.

(3) The first condition is that the new authorisation would be in force at a time immediately after the expiry of the existing authorisation.

(4) The second condition is that the new authorisation would not be in force at any time on or before the expiry of the existing authorisation.

(5) The third condition is that it would, in the managing authority´s view, be unreasonable to delay making the request until a time nearer the expiry of the existing authorisation.

(6) The expiry of the existing authorisation is the time when it is expected to cease to be in force.

Part 5 Urgent authorisations
Managing authority to give authorisation
74 Only the managing authority of the relevant hospital or care home may give an urgent authorisation.

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

76 (1) The managing authority must give an urgent authorisation in either of the following cases.
(2) The first case is where–

(a) the managing authority are required to make a request under paragraph 24 or 25 for a standard authorisation, and
(b) they believe that the need for the relevant person to be a detained resident is so urgent that it is appropriate for the detention to begin before they make the request.

(3) The second case is where–

(a) the managing authority have made a request under paragraph 24 or 25 for a standard authorisation, and
(b) they believe that the need for the relevant person to be a detained resident is so urgent that it is appropriate for the detention to begin before the request is disposed of.

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

(5) This paragraph is subject to paragraph 77.

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

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

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

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

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