Judge: Henderson J
Citation:  EWHC 2508
Summary: Extensive guidance concerning implementation of DOLS has been given by Charles J in the case of Re MB  EWHC 2508 (COP).
The facts of the case are interesting because they illustrate the problems faced by local authorities when a best interests assessor concludes that a deprivation of liberty is not in P’s best interests, but where there appears to be no suitable alternative to P’s placement, at least in the short term.
Mrs B had been admitted to a care home following concerns about physical assaults by her husband. An urgent authorisation was granted and then a standard authorisation lasting for one month. Prior to the expiry of the standard authorisation, a further standard authorisation was sought, but the best interests assessor concluded that the best interests requirement was no longer met. This was because Mrs B had displayed emotional and physical signs of distress at having been removed from her home. The local authority sought advice as to what they should do, and following some confusion due to difficulty in contacting the Court of Protection urgently, they issued a second urgent authorisation. Charles J found that this was not lawful. Once an urgent authorisation has been given, detention can only lawfully be extended by a standard authorisation or by court order.
Charles J went on to give useful guidance about the duties of managing and supervisory authorities. Where a problem arose such as had occurred with Mrs B, the best interests assessor should carefully consider whether even if the continued deprivation of liberty is not ideal, there are viable alternatives for P’s short term residence. If not, it may be appropriate to continue a standard authorisation for a short period while changes to the arrangements are made, or in order to seek the court’s assistance. Where the issue is that a further authorisation cannot be given under DOLS then it will not be correct to issue an application under s.21A MCA (challenge to an authorisation) as the relief that can be granted by the court will not be adequate. ‘Standard’ COP proceedings will be required. If necessary, pending application to the court, it may be possible to rely on s.4B MCA (defence to a deprivation of liberty where it is necessary to perform a vital act or give life-sustaining treatment) but only if a decision is made with express reference to s.4 and recorded with full reasons in writing.
The court granted a declaration that Mrs B had been unlawfully deprived of her liberty from the expiry of the standard authorisation until the court declared the deprivation of liberty lawful at a subsequent hearing. This declaration was granted notwithstanding the fact that there was no criticism of the local authority or the best interests assessor, although the judge did say that he thought it was right that the Official Solicitor had not also sought damages for the breach of Article 5. It was also granted even though it appears that the judge considered the deprivation of liberty had been in Mrs B’s best interests, as there was no suitable alternative accommodation that it would have been appropriate for her to move to at short notice that would have been a better option. While DOLS requires a deprivation to be in P’s best interests to be lawful, the converse is not true: a deprivation of liberty which is in P’s best interests is not thereby lawful, if there is no lawful authorisation or court order in place.
Comment: The judgment is essential reading for all best interests assessors and those involved in administering DOLS, and includes other pieces of advice, such as recording the time that authorisations start and end, in order that there is no risk of a gap or any confusion about the position.