Notwithstanding Brexit, a recent EU case highlights the need for up-to-date evidence in support of deprivation of liberty (DOL)

Property and affairs deputies should take note of the requirement, as this may affect the fundamental rights of clients and undermine the safety of a DOL authorisation under the current regime. The case also provides context for the impending Liberty Protection Safeguards (LPS) which enable a DOL to be authorised for up to 3 years.

Miklic v Croatia 41023/19 [2022] ECHR 311 7 April 2022, concerned a child who had committed a number of offences at a period when he lacked capacity. He was detained on the basis of psychiatric evidence obtained at the time of the offences. Regrettably, his requests for fresh expert opinion into his circumstances were refused and his detention continued, which he successfully claimed was a breach of his Article 5(1)(e) rights.

The Court pointed out that the case law on Article 5(1)(e) requires that medical evidence in support of a deprivation of liberty must be both objective and recent. On the facts of this case, independent medical evidence indicated the child's presentation had changed and evolved, making fresh assessment crucial in determining whether detention should have continued.

Schedule AA1 of the Mental Capacity (Amendment) Act 2019 sets out the new authorisation arrangements for DOL. Part 3 deals with the duration, renewal, variation and review of authorisations. Paragraph 32(1)(b) enables a renewal period of 3 years or less, there having already been an initial renewal period of up to 12 months. For many individuals this process could be engaged as soon as the LPS come into effect, as their DOL will almost certainly have been subject to ongoing review and renewal in the preceding years.

All renewals under the LPS (Part 3 paragraphs 34 and 35) are subject to the consultation condition at paragraph 23, Schedule AA1 Part 2. The property and affairs deputy must be alive to the need to respond to any consultation. It is helpful that the consultation condition provides an active check on proposals for a lengthy authorisation period of say 2 years or more. Either the responsible body or the care home manager must provide a statement confirming consultation has taken place, along with evidence of the same, as per para 36(1) and (2) of Part 3.

As the current DOL regime has required little or no involvement from the property and affairs deputy in the renewal process, the requirement to participate in this exercise under the LPS constitutes a significant change. In responding to the consultation, the deputy should be mindful of the ruling in Miklic, particularly if a lengthy authorisation period is proposed.

More prosaically, the professional property and affairs deputy will want to ensure any work on DOL for a client is clearly presented in the context of satisfying the requirements of the LPS, to avoid any issues around recovery.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.