Deprivation of Liberty: The implications of improper practice on the validity of a standard authorisation

By Stephen Cardinal and Alexandra Boynton, public law experts at Irwin Mitchell

Judgment was handed down in May 2021 by Her Honour Judge Hilder in the case of Re YC, which raised significant questions regarding how supervisory bodies should evidence their scrutiny of requests for authorisations of deprivations of liberty. 

The facts of this case are relatively straightforward. YC was an 89-year-old woman who was placed in residential care during the Covid-19 pandemic. She was subject to a standard authorisation granted by the City of Westminster in June 2020 under the Deprivation of Liberty Safeguards (“DOLS”) contained in Schedule A1 of the Mental Capacity Act 2005. 

YC representatives applied to the Court of Protection, seeking declarations that the standard authorisation in place was invalid, due to errors contained within the Form 5 authorisation. Their argument was dismissed at first instance by Deputy District Judge Kaufman at a hearing on 2 November, 2020. YC’s representatives appealed that decision and their appeal was heard by HHJ Hilder, Senior Judge of the Court of Protection

It is of note that YC’s representatives accepted that the Form 5 fully and accurately stated all of the “required matters” in respect of YC, but the Accredited Legal Representative expressed concern regarding the single section of the Form 5 headed “Evidence of Supervisory Body Scrutiny”. This section of the authorisation, spanning over two pages, incorrectly stated a name other than YC’s in nineteen out of twenty-five places where the name of the person concerned was required to be stated. 

YC’s ALR was concerned that the repeated references to the incorrect name indicated a lack of adequate scrutiny of the deprivation of YC’s liberty and called into question the validity of the decision made by the supervisory body. 

Judgment

In her judgment, HHJ Hilder accepted the arguments raised by YC’s representatives in respect of the Form 5 being the overall evidence of a proper scrutiny of the process, and agreed that it was highly undesirable for the Form 5 to leave any doubt as to whom it refers to, or whether due process has been followed. However, she considered the scale of error within the Form 5 and determined that it could equally be described as “a single error, repeated many times”, and that the impression was given that standardised phrases were used in the administrative process of writing up a decision which, in her words, was “poor practice” but overall, the error pointed to being more of an administrative, rather than a substantive, inadequacy.

Taking all matters into consideration, HHJ Hilder was satisfied with the conclusions reached by the first instance judge and, therefore, YC’s appeal did not succeed. However, in her judgment HHJ Hilder gave guidance on a “workable and appropriate” procedure to assist in identifying and addressing errors speedily and if necessary, to complete a new assessment process. She outlined the following procedure in her judgment:

• that the person granting the authorisation should carefully check that all details on Form 5 accurately reflect the other DOLS forms and relate to the particular P;
• the Form 5 should be checked for accuracy by another member of the DOLS authorisation team of the supervisory body;
• Form 5 should be provided to the RPR with a covering letter requesting that the RPR carefully checks that the forms, and all the information in them accurately relates to the relevant person; and
• An express requirement for the RPR to confirm accuracy to the supervisory body would be disproportionate but the RPR could do so.

Why judgment is significant

The judgment is significant for a number of reasons.  First, it sets out that errors contained within the authorisation forms do not necessarily deem the authorisation to be invalid. HHJ Hilder recognised the significance of the use of technology when creating these kinds of documents and therefore that it would be entirely disproportionate to conclude that every error would invalidate an authorisation. 

Secondly, HHJ Hilder emphasised the importance of the role that that an RPR has in respect of ensuring that the documents contain entirely accurate information. This adds an extra element of safeguarding and protection and is good practice to try to avoid errors being included within the authorisation documents. 

HHJ Hilder does, however, make it clear in her judgment that the responsibility of the supervisory body for the validity of the authorisation is not delegated to the RPR.

The implications for supervisory bodies

This case has important implications for supervisory bodies in emphasising the importance of authorisation documents being properly created and reviewed accordingly to ensure that errors are mitigated, as well as improving their relationship and communication with RPRs as part of the authorisation process.

If you have any questions or concerns regarding deprivation of liberty more information can be found at the dedicated Protecting Your Rights section on the Irwin Mitchell website.