A Primary Care Trust v LDV & Ors

A deprivation of liberty under Article 5 requires confinement in a limited space for more than a negligible time, absence of valid consent, and State responsibility. Whether confinement exists objectively depends on the person’s concrete situation, including its type, duration, effects, implementation, supervision, control, and the appropriate comparator. The factors in paragraph 2.5 of the Deprivation of Liberty Safeguards Code of Practice 2008 are non-exhaustive and need not all be present. When assessing capacity to consent to accommodation amounting to a deprivation of liberty, clinicians should assess understanding of the concrete situation. Courts should not ordinarily prescribe the precise information in advance, since capacity is decision-specific and fact-sensitive.

The proceedings concerned L, a woman with a learning disability who remained at a private psychiatric hospital after her deferred discharge under the Mental Health Act 1983. She was informally admitted, but subject to extensive restrictions on movement, supervision, treatment, searches, medication and contact. The applicant sought clarification of whether those arrangements amounted objectively to a deprivation of liberty and what information was relevant when assessing L’s capacity to consent to her accommodation.

The remaining issues, including capacity and the legal authorisation of any deprivation, were adjourned. The court therefore determined two preliminary questions.

1. Objective deprivation of liberty. The court held that L’s circumstances plainly amounted to a deprivation of liberty. The Article 5 analysis required consideration of three conditions: an objective confinement in a limited space for a non-negligible period, lack of valid consent, and State responsibility. The objective question had to be assessed by examining the whole concrete situation, including the type, duration, effects and manner of implementation of the restrictions.

2. The factors in paragraph 2.5 of the Deprivation of Liberty Safeguards Code of Practice 2008 were non-exhaustive. It was unnecessary for every factor to be present. Here, hospital staff exercised complete and effective control over L’s care, treatment, medication, contacts, residence and movement. She could not leave without permission and would be prevented from leaving or returned if necessary.

3. The appropriate comparator was a person properly placed in a residential community setting of the kind recommended for L. The concepts of relative normality and relevant comparator could not be used to exclude cases falling within the core safeguards identified in HL v United Kingdom (2005) 40 EHRR 32. The restrictions were at the severe end of the spectrum.

4. Capacity to consent. Although the court should approach the issue as if considering the mental capacity requirement in paragraph 15 of Schedule A1 to the Mental Capacity Act 2005, the ordinary principles in sections 1, 2 and 3 applied. The clinician should assess the person’s understanding of the concrete circumstances. The court should then decide, on all the evidence, whether practicable assistance had been provided and whether incapacity was proved on the balance of probabilities.

5. The court should not routinely identify in advance a precise list of information required for capacity. In this case, the relevant information included the hospital admission for mental-disorder care and treatment, supervision, restraint, medication, searches, the requirement to obtain permission to leave, supervised departure, and steps to locate and return L if she left without permission. The case-specific formulation was intended to assist the parties and was not stated as a general precedent.

6. The parties were invited to agree wording for a recital and directions were given for a later hearing on the remaining issues.