In this case the Court examined the extent of a local authority's duties when issuing a standard DoLS authorisation and found that local authorities should proactively and independently review the relevant person's situation rather than simply adopt the views of the best interests assessor.

The facts

P was 26 years old with severe learning disabilities and autistic spectrum disorder. His placement broke down and he was urgently moved into a local authority care home on 5 September 2014. In November 2014 P was assessed as being eligible for NHS Continuing Healthcare Funding.

On 24 November 2014 an urgent authorisation was issued. By that time, P had been in the home for almost 12 weeks without any authorisation in place. The urgent authorisation expired after seven days and a standard authorisation was granted by Surrey County Council on 23 December (almost three weeks after the urgent authorisation had expired). In all, P was deprived of his liberty without authorisation for just over 14 weeks.

The standard authorisation was granted until 18 October 2015, a period of 10 months; it being accepted by all that the care home would not be suitable in the long term.

P’s mother, acting as a relevant person’s representative and litigation friend, successfully challenged the authorisation. The Court declared that it was in P’s best interests to move to a specialist autism placement after a period of transition.

The issues

The main issue raised in this case was whether the local authority had been right to issue a standard DoLS authorisation of 10 months' duration when, at the time of the application, a best interests assessment indicated that the home was not suitable for P. The undisputed evidence was that although it had been in his best interests for a short period, P would be better placed at an alternative care home which offered specialist autism services.

The Court also considered whether P’s detention at the care home between 5 September 2014 and 23 December 2014 and again from 23 December throughout the remaining period of the authorisation was lawful or whether this was in breach of Article 5 (Right to liberty and security of person) and/or Article 8 (Right to respect for private and family life) ECHR.

The decision

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.

In respect of the appropriateness of the period of authorisation granted by the supervisory body the judge considered that:

  • It was not open to the supervisory body to grant a standard authorisation for a substantial period (in this case 80% of the maximum permitted duration of one year) where it had undisputed evidence from a number of sources that the care home was only suitable in the short term.
  • The supervisory body had placed too much weight on the desirability of avoiding further assessments where there was no evidence that those assessments had caused P any actual distress.
  • The best interests assessor should have investigated the proposals made by those concerned with P’s welfare, to see whether they offered a less restrictive, more suitable environment in which P could be cared for particularly where it was recognised that those persons were acting appropriately and in P’s best interests.
  • Alternatives should be identified (where possible) so that the supervisory body could consider those alternatives 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.
  • Both best interests assessors and supervisory bodies should ask themselves the following questions:
  1. What harm, if any, may P suffer if [his] continued detention is authorised?
  2. What placement or type of placement would be a more appropriate response?
  3. How long will it take to investigate the availability and suitability of a more proportionate response?
  • The supervisory body, with knowledge that the current placement was unsuitable, had a duty to be proactive and investigate whether a less restrictive alternative was available. It could not delegate its responsibility in this regard.
  • Although other persons concerned with P’s welfare may apply to the Court of Protection if they wish to challenge the standard authorisation, it is the duty of the supervisory body to ascertain the least restrictive alternative, including the question of the appropriate duration of any authorisation.

Comment

The Court highlighted in this case that when a supervisory body is deciding upon the appropriate duration of any standard authorisation, it must have due regard to whether there are questions over the suitability of the placement or indeed disputes as to whether it is in P’s best interests to remain at that placement. The Court suggested that where this is the case the authorisation should be ‘for a short period of time only’. In addition judgesuggested that a request could be made for ‘further detailed information about more suitable alternatives to accompany any fresh application for deprivation of liberty in respect of P’s stay at the care home to be supplied’.

This judgment enforces the importance of scrutiny by local authorities when considering an application for a standard authorisation. It also highlights the importance of, where possible, investigating whether any less restrictive alternatives are available prior to granting a standard authorisation. Where it is not possible to conduct those investigations prior to granting a standard authorisation, local authorities should give proper consideration to the duration of any authorisation ensuring this is for the shortest possible time.

It is likely that following this decision there will be an increase in local authorities placing conditions on authorisations. Conditions are likely to include the need for full investigation of alternatives, proper consultation with all those concerned with P’s welfare and provisions for best interests meetings to take place together with who will be responsible for this, before further authorisations are sought.

The judgment further confirms that even when a CCG has funding responsibilities, the local authority, as the supervisory body, should take the lead.

The implications for organisations making applications for DoLS authorisation is that there will be greater scrutiny around whether the hospital or care home has complied with any conditions set before any further authorisations are given.

In practice this could potentially lead to situations where local authorities refuse to grant applications for authorisations where conditions previously set have not been complied with. It is likely that, where granted, authorisation, particularly in hospital settings, will be for shorter periods of time and more focus will be placed on ensuring that those responsible for commissioning care are pro-active in identifying and placing patients within the most appropriate setting to meet their needs.

In situations where a patient is CHC funded this could mean that the CCG is required to make an application to the court for authorisation for the patient to be deprived of their liberty if an authorisation is not granted or risk leaving themselves open to claims which may include breaches of human rights and false imprisonment.