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Substance or form?

When do repeated errors invalidate a Deprivation of Liberty Safeguards (DoLS) authorisation? Alex Ruck Keene examines a recent Court of Protection ruling.

What happens when the paperwork authorising a deprivation of liberty under the DoLS regime repeatedly refers to the wrong person? This question was posed before Senior Judge Hilder in Re YC [2021] EWCOP 34, in the context of appeal against the dismissal of a challenge to a DoLS authorisation purportedly granted by the City of Westminster in respect of a woman, YC. The ‘Form 5‘ document, containing – in effect – the record of authorisation, referred to the wrong name 19 out of 25 times, leading her representatives to question the extent to which her circumstances had been properly scrutinised.

On the facts of the case, in circumstance where it was accepted on behalf of YC that the underlying assessments had been properly conducted, Senior Judge Hilder (at paragraph 74) noted that:

The impression is […] created that standardised phrases have been used in the administrative process of writing up a decision – which, I would suggest, is very poor practice – but overall, the frequency with which the same error appears points much more clearly to administrative, than substantive, inadequacy.

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The wider headline points are that:

  • There is a material difference between the situation where assessments have been completed correctly but there are mistakes made in the form in which the authorisation is recorded, and where the ‘outcome leads the process,’ as in the Neary case (and also, although not brought to Senior Judge Hilder’s attention, this disciplinary case before Social Work England where repeated plagiarisation of forms by a BIA gave rise to a risk that individuals had been – substantively – unlawfully deprived of their liberty);
  • Errors of form do not necessarily invalidate the authorisation. Even in the serious domain of authorisations of deprivation of liberty, there is room for a degree of pragmatic realism, as is recognised in the ECHR decisions contrasting ex facie invalid orders and prima facie valid ones, and by the ‘correcting’ provisions of the Mental Health Act. As Senior Judge Hilder noted at paragraph 75: “[w]here there are standardised documents, and inevitable use of information technology (including the availability of ‘cut and paste’), it would be disproportionate to conclude that every error of form invalidates Form 5.”
  • Senior Judge Hilder endorsed the following “workable and appropriate” procedure as good practice to improve the prospects of identifying and addressing errors promptly, if necessary by a completely new assessment process:

a. Firstly, 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;

b. The Form 5 should be checked for accuracy by another member of the DOLS authorisation team of the supervisory body;

c. 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;

d. An express requirement for the RPR to confirm accuracy to the supervisory body would be disproportionate but the RPR could do so.

Comment

We will discuss the case and its implications in more detail in 39 Essex Chambers' June 2021 Mental Capacity Report, but for present purposes supervisory bodies will no doubt be checking (1) their administrative processes to seek to eliminate cut and paste disease; and (2) their communications with RPRs.

One important point to note is that Senior Judge Hilder was emphasising that the RPR has an important practical role in making sure that the paperwork is, in fact, in order. However, she was not holding that this is required as a matter of law so that if the RPR misses something the authorisation it becomes invalid. Of course, it becomes clear that an RPR – especially a paid RPR – has simply put the authorisation in a drawer without noticing errors, especially glaring errors, that should be a red flag for whether the RPR is actually able to undertake their tasks under paragraph 140 of Schedule A1 DoLS of representing and supporting the person.

Alex Ruck Keene is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.

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