‘Deprivation of liberty’ guidance

Posted: 15th January 2013

In an important ruling for the medical profession and the private care homes industry, a High Court judge has given guidance on the circumstances in which it is legitimate to deprive patients of unsound mind of their liberty and the correct procedures to be followed in such cases.

The case concerned a ‘very seriously challenged’ patient who suffers from a constellation of mental disorders including paedophilia which makes him a risk to the public. He had been placed by a local authority in a private care home where his liberty is necessarily restricted.

The local authority and the care home owners, in conjunction with an NHS Trust and the Care Quality Commission (CQC), had agreed a 52-page policy document in relation to the patient’s care regime, which, inter alia, allowed restraint of his movements and permitted him to be personally searched and to have his telephone calls and correspondence monitored.

Prior to formulation of the policy, the Official Solicitor, on the patient’s behalf, had raised concerns that the restrictions on his liberty were insufficiently prescriptive, carried insufficient safeguards and were neither validated nor overseen by an organ of the state.RCJ

In ruling that the policy is compliant with the patient’s right to liberty, enshrined in Article 5 of the European Convention on Human Rights (ECHR), Mr Justice Mostyn said that he was being lawfully detained as a person of unsound mind. However, more difficult issues were raised as to whether the policy was compliant with Article 8 of the ECHR, which guarantees the right to respect for privacy and family life.

Approving the policy document, the judge said that its operation will be overseen by the NHS Trust and the CQC and will also be subject to annual review by the Court of Protection. He said that it was not every case involving a deprivation of liberty that would be required to have such a detailed policy in place with oversight by a public authority.

Giving guidance for the future in such cases, the judge added: ‘Sometimes, particularly where the issue is a one-off, such as authorising an operation, an order from the Court or Protection will suffice and will provide a sufficient basis in law. But where there is going to a be a long-term restrictive regime accompanied by invasive monitoring of the kind with which I am concerned, it seems to me that policies overseen by the applicable NHS trust and the CQC akin to those which have been agreed here are likely to be necessary if serious doubts as to Article 8 compliance are to be avoided.’