Deprivation of Liberty authorisations: errors of form, actions for supervisory bodies

The case of Re YC raises important learning points for supervisory bodies when processing and issuing standard authorisations under the deprivation of liberty safeguards.

In this case, a standard authorisation in respect of YC’s living arrangements at FC Care Home was granted by The City of Westminster in June 2020. YC’s legal representatives argued that the authorisation was invalid because of the errors in one section of the Form 5 – the written authorisation.  The concerns related to the 19 out of 25 references made to the subject of the authorisation as being a “Ms Hull” who was not YC and therefore, YC’s legal representatives contended, called into question the validity of the decision granting the standard authorisation by the supervisory body.

YC’s arguments in this regard were dismissed at first instance by the Deputy District Judge in November 2020.

YC’s representatives appealed the Deputy District Judge’s dismissal of the challenge to the DoLS authorisation granted to The City of Westminster. The appeal was dismissed by Her Honour Judge Hilder at a hearing in May 2021.

Key points from HHJ Hilder’s decision:

• Form 5 represents evidence of proper scrutiny and, while it is highly undesirable for Form 5 to leave any doubt as to whom it refers to or whether due process has been followed, the judge did not accept that errors of form necessarily invalidate the authorisation, explaining that:

“Where 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.”  

• YC’s case was put on the basis of there being 19 errors in the Form 5 although the council argued that this could equally be described as a single error, repeated many times. Commenting on this, HHJ Hilder said that the:

“impression is indeed 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.”

• In respect of a “workable and appropriate” procedure for identifying and addressing errors of form in standard authorisations – HHJ Hilder identified four steps supervisory bodies can action as follows:

1."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;

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

3.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;

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

Comment

This case serves as an important reminder for supervisory bodies to improve their administrative practice, including undertaking proper and careful scrutiny when considering granting standard authorisations. There are also important points on communication with RPRs – of note is HHJ Hilder’s comment that while the process of reviewing the Codes of Practice for the new Liberty Protection Safeguards is currently underway, it would be appropriate to include reference to the RPR/appropriate person checking the accuracy of the forms.