Bury Metropolitan Borough Council v EM & Ors [2024] EWCOP 76 (T2)

​Judgment concerning capacity, care planning and deprivation of liberty for EM an 18 year old girl with a diagnosis of ADHD and ASD.

EM was detained in March 2023 under s2 of the MHA after going missing from home. Since then there has been a succession of incidents where EM has self harmed and attempted suicide. Proceedings under the inherent jurisdiction to authorise deprivation of her liberty were started in August 2023 and progressed to the Court of Protection in July 2024.  

A central part of this judgment concerns the differences between deprivation of liberty under the inherent jurisdiction and a DOLS with HHJ Burrows stating at [48-49] that a DOLS 

"48…can be authorised under Schedule A1 of the MCA if the person is 18 or older and is detained in a care home or hospital. These are the DOLS. If the person is not yet 18 or is somewhere other than a hospital or care home, the Court must decide whether to authorise the care plan under ss 15 and 16 MCA.

49. The inherent jurisdiction has been used in Emma’s case to authorise her deprivation of liberty outside a statutory regime. These are also known as DoL or DoLs orders, with good reason."

and concluding at [61]

"At the October hearing, I therefore approved the care plan I was invited to approve at the placement. That care plan amounts to a deprivation of Emma’s liberty not because the Court says it does, but because the restrictions imposed under the care plan are said to be necessary, proportionate and in her best interests according to those involved in her care, and they place Emma under continuous supervision and control and she is not free to leave the placement."

HHJ Burrows also allows the costs application of the Official Solicitor arising from a wasted hearing due to administrative failures by the local authority.

Read the judgment on the National Archive