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 Chambers.
We naturally update our DoLS training to take account of all Court rulings.
The Mental Capacity (Amendment) Bill
As many of you will know, the Mental Capacity (Amendment) Bill started its journey through Parliament in July 2018. The purpose of the Bill is to replace the DoLS with a new system, provisionally called the "Liberty Protection Safeguards" or LPS. You can follow the progress of the Bill here and some of the debates are televised live on the Parliament TV channel here.
There is no indication yet as to when (if at all) the Bill will be passed by Parliament. And even when it is passed, presumably there will be some delay before it is implemented, in order to give everyone time to adjust.
As soon as the Bill is passed we will start delivering training on the LPS (or whatever they end up being called). But there is no point in doing so now, because the situation is so fluid.
In the meantime, the DoLS must continue to be used, and therefore we will continue to deliver DoLS training.
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.
RT being a 17 year old male, 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.
An attempt by the court to clarify whether the "Acid Test" of the Cheshire West judgement can apply to a 14 year old.
Trying to clarify who can authorise the deprivation of liberty of people under the age of 18. The Appeal Court has partially overruled the judgements of the Court of Protection.Was appealed further to the Supreme Court on 3rd & 4th October 2018, click here for details. The Supreme Court has not yet published its ruling. This case is sometimes know as "Teen Bournewood".
The Judge in this case said that wherever covert medication is used as part of a package of care then consideration must be given as to whether the covert medication needs to be authorised under DoLS.
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 detailed 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.
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).
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.
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 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 a 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.