Court of Protection (DoLS) cases
The Court of Protection is the division of the High Court that deals exclusively with Mental Capacity Act cases. The DoLS are part of the Mental Capacity Act. The rulings of the Court give guidance to professionals and organisations in how to interpret the Act.
We list here some of the most significant rulings of the Court. The list is regularly updated as new cases come in, the most recent cases being nearest the top of the list. If you have any suggestions of cases you would like us to include please let us know.
Many of the links on this page come from the excellent resources on the website of 39 Essex Barristers' Chambers.
We naturally update our DoLS training to take account of all Court rulings.
The Mental Capacity (Amendment) Act 2019
The Mental Capacity (Amendment) Act received the Royal Assent on 16th May 2019. The purpose of the Act is to abolish the Deprivation of Liberty Safeguards (DoLS) and to replace them with a completely new system, which will be called the Liberty Protection Safeguards (LPS).
The implementation date is provisionally 1st October 2020, and the intention is that the LPS and the DoLS will run side-by-side for 12 months thereafter.
In the meantime, the DoLS must continue to be used, and therefore we will continue to deliver DoLS training. And of course we can deliver LPS training too.
Some of the cases below will be relevant to the LPS when they are introduced. But, inevitably, a flurry of LPS-specific cases will also be heard from October 2020 onwards, and we will start listing them here as they appear.
(Not the famous "Acid Test" case!). This one concerns a 24 year old man in supported living who objects to being there. His capacity to consent to his care arrangments fluctuates, and of course a deprivation of his liberty can only be authorised on the basis that he does indeed lack capacity. The Judge here adopts a "longitudinal" approach to this question, ie looking at his behaviour over time, rather than on one specific instance.
CB, a 91 year old woman with dementia, objected to living in a care home, where she had been held for the past 18 months.
A complicated, and confusing, case which went to the Supreme Court. MM wanted to be conditionally discharged back into the community from his detention under the Mental Health Act. He accepted the conditions of the discharge, and was assessed has having the capacity to do so. Those conditions would amount to a deprivation of liberty under Article 5 of the Human Rights Act. The Supreme Court decided that such a discharge would be unlawful, despite MM's compliance and capacity.
Whether a highly restrictive care package (1:1 at night, 2:1 whilst awake) was in RT's best interests, and also whether RT's views were being given sufficient weight in the situation. RT was 17 years old.
An attempt by the court to clarify whether the "Acid Test" of the Cheshire West judgement can apply to a 14 year old.
A 69-year old man was being held in under a Standard DoLS Authorisation in a care home. The care home, which specialised in caring for adults with alcohol-related issues, had a strict no alcohol policy. DM, previously a heavy drinker, having been a resident there for 5 years, claimed he could now drink in moderation, and therefore wished to be moved to a home which allowed residents to drink alcohol. So although it's nominally a DoLS case, in truth it is actually a best interests case.
This was a severely disabled 15-year-old boy who was shortly to turn 16, and the Court was asked to rule on who could authorise the deprivation of liberty of someone of that age. It was a lengthy case, which was heard in the Supreme Court in 2018, and they eventually published their judgement in 2019. The link above is a very in-depth analysis of the case by 39 Essex Chambers (Alex Ruck Keene). This case is sometimes known as "Teen Bournewood".
The Judge in this case said that covert medication should only be used in exceptional circumstances, since it is a very great interference with a person's Article 5 and 8 Human Rights. It can only be used as part of the formal best interests process where the individual lacks capacity. And if the person is also subject to DoLS then the covert medication aspect should be included in the DoLS assessment and authorisation process.
Robert was a 23-year-old man with learning disabilities, epilepsy and autism. His mother, father and brother were deputies (for property/affairs and personal welfare). Haringey Council was heavily involved in his care planning and agreed to fund his placement in Supported Living, which his deputies were fully happy with. Haringey Council argued that a Deprivation of Liberty Authorisation was not necessary because his deputies were agreeing to the placement.
CP, a 90 year old man, was detained in a care home due to a Safeguarding concern for 13 months, despite being assessed more than once as having the capacity to decide where to live and how to care for himself. Essex County Council was ordered to pay all of CP's legal costs, all of his care home fees, and £60,000 compensation.
RB was a 37-year old man with a history of homelessness, offending and alcoholism. A few years previously he had sustained serious head injuries (not clear whether this was an assault, or a road traffic accident). He objected to being detained under DoLS in a care home, claiming he had capacity to make decisions about his own residence and care.
Manuela Sykes was 89 years old in 2014. She was a political activist who had stood several times for Parliament as a Liberal, and later a Labour candidate. She was described as a "firebrand". By 2014, suffering from dementia and self neglect, she was subject to a standard DoLS authorisation in a residential care home in central London. She objected to being there, and also objected to any attempt to hide her identity in reports of her court case.
39 year old man with learning disabilities, case went to Supreme Court to decide whether he was being deprived of his liberty, led to the "Acid Test" judgement (along with MIG and MEG below).
2 sisters with learning disabilities, case went to Supreme Court to establish whether they were being deprived of their liberty. "MIG and MEG" are also referred to as "P and Q" in the reports.
X was a very intelligent retired lawyer who had Korsakoff's Syndrome, which caused fluctuating capacity. He challenged the professionals' assessment that he lacked capacity to decide where to live and how to care for himself. He was being held under a DoLS authorisation, which in turn rested on that assessment of his lack of capacity.
Milton Keynes Council was heavily criticised for removing RR (an 81 year old woman) from her own home due to a Safeguarding concern, but then not telling her son, delaying the DoLS authorisation and letting the investigation drag on for too long.
A 67 year old woman objected strongly to being detained under DoLS in a care home. The local authority was reluctant to allow her to return home because they felt she would not manage her diabetes properly, and there would be a high risk of death.
A man with a mild learning disability was sexually attracted to children, and was therefore being held against his will in a secure residential facility. He regularly objected to being there, and to the restrictions that were placed on his everyday life in order to prevent him from acting upon his feelings.
An 82-year-old woman being held in a care home challenged the DoLS authorisation on the grounds that she did understand the risks of caring for herself at home (ie that she had capacity).
Stanev was a man with schizophrenia, who was placed in a care home by the Bulgarian authorities in a remote location 8km from the nearest village. He shared a room with four other residents, conditions were poor and there was little access to the community. Some years later he argued in the European Court of Human Rights that this amounted to a breach of his right to liberty (Article 5). Although the UK is no longer bound by the ECtHR (as it has its own Supreme Court) it does have to pay due regard to decisions taken by the ECtHR. So this case is sometimes mentioned in the UK courts when considering deprivation of liberty.
Peggy and her partner Norman has been together for over 20 years, but with Peggy having developed dementia social services decided it was too risky to allow her to go on a cruise with Norman. Peggy was subject to a Standard DoLS Authorisation, and took the Council to Court to challenge that authorisation.
PH, a man with Huntington's Disease, challenged his detention in a care home run by Z Ltd, a private provider. The Judge went into considerable detail in explaining what is, and is not, relevant in determining whether a person has capacity to make a particular decision.
An 18 year old man with severe learning disabilities and autism was regularly restrained and placed in a seclusion cell called the "Blue Room", This happened as frequently as 6 times per day, but there was no DoLS authorisation in place.
19 year old man with autism and learning disabilities was unlawfully deprived of his liberty for 12 months by local authority.
Another early case, this time from Germany, which is often used as a reference point for working out whether someone has been unlawfully deprived of their liberty by the state. Waltraud Storck was an in-patient in a psychiatric hospital in the 1970s. She was not detained under the German equivalent of the Mental Health Act, but when she tried to escape she was shackled and returned to the hospital by the police. Whilst in hospital she was under continuous supervision and control. Many years later her case was heard in the European Court of Human Rights.
48 year old man with autism and learning disabilities was unlawfully deprived of his liberty for 6 months. The case went all the way to the European Court of Human Rights, and ultimately led to the introduction of DoLS in England and Wales in 2009.
Well before the DoLS, but an interesting case that went to the European Court of Human Rights, concerning a suspected Mafia boss who was obliged to live on an island by the Italian government. It brings up the difference between restriction and deprivation of liberty, and was referenced in the Cheshire West/MIG & MEG cases in 2014.