Background

MB was 80 years old and was a resident at a nursing home. She had dementia of Alzheimer’s type. She had been moved there following an incident with her husband, who had admitted to slapping, holding or restraining her after she had kicked him when agitated and had left marks on her. He had been struggling to cope with her deteriorating condition for some time and it was thought to be in MB’s best interests (at least initially) for her to move to the nursing home. They had been married for over 50 years

An urgent authorisation was given for the first few days of her residency, (22 February to 1 March) and then a standard authorisation was applied for. The standard authorisation was granted on 1 March 2010 and was for an initial period of 28 days.

On 16 March, the Managing Authority requested a further standard authorisation. This time, the Best Interests Assessor determined that, although MB was deprived of her liberty, her best interests were not met by continuing to reside at the nursing home. This was because she had lost a significant amount of weight in the month she had been there, appeared distressed and had lost some functioning skills. However, the best interests assessor did not think it was safe for MB to return home unless 24 hour care was in place for her and her husband was not prepared to accept this.

The Managing Authority did not agree with the bests interests assessor. They issued a second urgent authorisation which was effectively “open ended” and expressed to last until the Court of Protection made its determination. . They then applied to the Court of Protection for a determination of residency for MB

At the time this seemed like the most sensible thing to do, as the other options open to the managing authority were:

  1. continue to detain MB but without any DOLS authorisation,
  2. send MB home without 24 hour support, thereby putting her at risk

The Supervisory Authority purported to grant an extension of the Urgent Authorisation to 13 April 2010.

Judgment

The judge concluded:

  • As there had already been a standard authorisation and an urgent authorisation which related to the same period of deprivation of liberty, there could not be another urgent authorisation granted in relation to it. The only way that deprivation would have been lawful would have been either by Court order or by standard authorisation.
  • The Court cannot provide retrospective authorisation for something which would otherwise have been unlawful. The managing authority should have considered whether it could have taken advantage of the Mental Capacity Act to afford itself protection for continuing to detain MB at the nursing home.
  • The maximum period for an urgent authorisation is 7 days.  

Guidance

Mr Justice Charles gave plenty of guidance on how difficult DOLS cases such as this one should be managed:

  • There can only be one urgent authorisation per “existing detention”. At the end of the first authorisation, continued detention can only be authorised by either another standard authorisation or by a court order
  • The steps to be taken to continue a deprivation or to address problems associated with the deprivation of liberty should be addressed within the timescales for the relevant authorisation.
  • Section 4B of the Mental Capacity Act allows a DOL whilst an application is made to Court. However, 3 conditions need to be fulfilled (that there is a question about whether the deprivation is authorised, that the DOL relates to life sustaining treatment or a vital act and the DOL is necessary for that life sustaining treatment or vital act).
  • You cannot rely, after the event, on sections of the Mental Capacity Act when the evidence shows that the section and its tests were not considered at the time by the decision maker(s).
  • A Court will want to know what a decision maker believed and how they reached their conclusion.
  • Assessors should have regard to the alternatives practically available. They should consider in light of those, whether it would remain in the Best Interests of the person to be detained pursuant to a standard authorisation of limited duration. The best interests assessor should bear in mind their ability to set the maximum length of a standard authorisation.
  • The Court is the appropriate place to resolve issues relating to
    • A breakdown of the authorisation of a deprivation of liberty
    • Whether P can lawfully be deprived of his liberty if an authorisation or further authorisation cannot be granted or the grant is disputed.
  • Section 21A of the Mental Capacity Act allows applications to be made to the Court in respect of authorisations that have been granted but it is unlikely that this section can be used where the problem is that an authorisation or further authorisation cannot be given.
  • Where the issue is that an authorisation or further authorisation cannot be given, consideration should be given to an application to Court under sections 4A, 16, 47 and 48 of the Mental Capacity Act.
  • Urgent applications can be brought before the Court using the out of hours arrangements and supervisory bodies, managing authorities and decision makers should know how to go about this.  

Practical points

Mr Justice Charles suggested the following would be best practice:

  • An Urgent Authorisation comes into force at the exact time at which it is given.
  • A Standard Authorisation comes into force at the exact time at which it is given or at a later time, if this is specified.
  • The current forms in use for authorisations do not have a specific area for recording the time of the authorisation. He suggested they could be amended, the time could be recorded on the form in any event or a separate log of the times when the authorisation is granted could be maintained but there should be a written record of it kept somewhere.
  • The day on which the authorisation expires should be noted. To calculate this, the whole day on which the authorisation was given should be included as day 1.
  • There is no need to record the exact time for expiry, unless the period is shorter than the maximum which is allowed. It will be assumed to expire at the end of the last day of the period.  

Conclusion

He concluded that MB had been deprived of her liberty from the point where the standard authorisation expired (midnight on 29 March 2010) until the making of a court order authorising a continued deprivation of liberty (13 April 2010).

No damages were sought as a declaration was thought to be sufficient.