P v Surrey County Council and Surrey Downs CCG

Judge: HHJ Cushing

Citation: [2015] EWCOP 54


P was 26 years old with severe learning disability and autistic spectrum disorder. His placement broke down and he was urgently moved into a care home on 5 September 2014. On 24 November 2014 an urgent authorisation was issued and, on 23 December 2014, a standard authorisation was granted by Surrey County Council expiring on 18 October 2015. His mother, acting as relevant person’s representative and litigation friend, successfully challenged the authorisation and the court declared that it was in P’s best interests to move to a Homes Caring for Autism placement after a period of transition.

The court held that P had been unlawfully deprived of liberty prior to the urgent authorisation and between its expiry and the commencement of the standard authorisation. Although the best interests assessor had recommended a maximum of 12 months’ authorisation, HHJ Cushing was very critical of the supervisory body, naming its authoriser, in a number of respects:

With regards to the duration (emphasis added):

“19. What was, in my judgment, not open to the supervisory body was to do what it did, namely to receive un contradicted information from three separate sources that the care home was only suitable in the short term or for a short period and then proceed to grant the standard authorisation for a substantial period, i.e. 80% of the maximum permitted duration. Having regard to the period of time that P had been deprived of his liberty prior to the urgent authorisation, the ultimate decision on duration is drawn into sharper focus. Furthermore, in my judgment, in deciding on the duration of the standard authorisation, Mr Butler placed too much weight on the desirability of avoiding further assessments. There was no evidence that the assessment by the best interests assessor had caused P any actual distress.”

In terms of pursuing a less restrictive alternative:

“27. I cannot speculate how long it would have taken for the alternative proposed by the relevant person’s representative and P’s other parent and his non-appointed advocate to be fully investigated, but, in my judgment, given it was recognised that BR, the relevant person’s representative and his mother, was acting appropriately and in her son’s interests, as is clear from the assessment, it was incumbent on the best interests assessor to investigate her proposal to see whether in fact it offered a less restrictive, more suitable environment in which P could be cared for and, to the extent necessary in his best interests, to have his liberty circumscribed. The alternatives had to be considered by the supervisory body as part of its determination independent of the best interests assessor’s recommendation of the period for which the authorisation of deprivation of liberty would be granted.

29. In my judgment, the best interests assessor and/or the supervisor body failed to analyse the four necessary conditions sufficiently. Had they done so, they would have asked themselves three questions:

  • What harm, if any, may P suffer if his continued detention is authorised? The circumstances were that not less than two‑to‑one staffing ration was considered appropriate and necessary to limit self‑harm.
  • What placement or type of placement would be a more appropriate response?
  • How long will it take to investigate the availability and suitability of a more proportionate response? Mr Butler said in his oral evidence that he had had several discussions with Mr Hill, as undoubtedly was necessary to enable him to approach his task correctly, but it was also necessary that he approach his task as a detached supervisor. It was evident that he did engage with the issue and brought his own judgement to the question, but in my judgment he also failed to ask the three questions. His reasons for authorising deprivation of liberty for 10 months did not relate to the qualifying requirements or the least restrictive principle.

32. The [supervisory body] had the duty to investigate whether a less restrictive alternative was available. It could not delegate its responsibility in this regard to the relevant person’s representative or the non-appointed advocate. It already knew that the care home was not suitable in the medium or longer term because it had been told so by the social worker undertaking the best interests assessment. Being in possession of that knowledge, the obligation was on the first respondent to be proactive, and they failed in that obligation.

33. It was submitted on behalf of the [supervisory body] that it was not unreasonable to authorise P’s deprivation of liberty for 10 months on the basis that P’s relevant person’s representative or his family members could apply to discharge it. That is, in my judgment, the wrong approach. It is for the supervisory body to ascertain the least restrictive alternative, including the question of duration. It is not for the family to apply, although they have the opportunity to do so under the Act.”

CategoryBest interests - Residence, Article 5 ECHR - DOLS authorisations, COP jurisdiction and powers - Interface with public law jurisdiction Date


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