The Court of Appeal has recently handed down an important deprivation of liberty (DOLS) decision which represents the first confirmation from the Court that the DOLS regime has, to use the words of the court, "plugged" the Bournewood gap in a lawful manner.
The focus of the arguments in the case of G v E were around Article 5 of the European Convention on Human Rights (ECHR).
Article 5 relates to an individual’s right to liberty and security. The question before the Court of Appeal was whether Article 5 meant that threshold conditions had to be satisfied before a best interests assessment under DOLS could be carried out.
E suffered from a rare and complex genetic condition which had left him with severe learning difficulties. He had been in foster care but had then been moved to a residential unit.
G was E's sister who had applied for declarations/orders concerning his past, present and future care.
The High Court had found that E had been deprived of his liberty without authority in the residential home but that it was in his best interests to remain there.
G had relied on European case law relating to the detention of mentally ill patients in a psychiatric hospital. The Court of Appeal emphasised that in a case like E's to require psychiatric evidence of the necessity of a deprivation would be "simply unreal" and in some cases "irrelevant" under the DOLS regime. However, the court indicated that it would require credible expert evidence that an individual lacks capacity upon which the court could rely. Article 5 provided a safeguard against arbitrary detention and the DOLS Code was compliant with that. The court contrasted this with those patients who fall under the Mental Health Act 1983.
This judgment will confirm the existing practice of many of our clients but it serves as a useful reminder in relation to the need for a thorough assessment of capacity to be undertaken when consideration is being given as to whether a patient might fall under the DOLS scheme.