Commentary on Sections Part 2 – Lack of Capacity: Protection from Liability, and Safeguards CHAPTER 4 – ADDITIONAL SAFEGUARD: AUTHORISATIONS ETC and CHAPTER 6 – EXTENSION OF PERIOD OF CERTAIN AUTHORISATIONS Sections 24 – 27 - Deprivation of liberty
Sections 24-27 make provision in respect of an act or acts that together amount to a deprivation of liberty (defined in section 306 by reference to Article 5 of the ECHR so as to attract relevant case law). The Act aims to address the legislative gap in Northern Ireland for such deprivations of liberty of persons who lack capacity in relation to them, in a way that avoids many of the difficulties encountered in other jurisdictions and takes account of developments in ECHR and domestic case law. Section 24 provides that only certain kinds of deprivation of liberty can have the protection from liability afforded by section 9 and, even then, they must be authorised by either a HSC trust panel under Schedule 1 or by the making of a report under Schedule 2 (relating to a short term detention for examination) unless the situation is an emergency. The criteria for detention are set out in paragraph 10 to Schedule 1 and paragraph 2(3) to Schedule 2. The prevention of serious harm condition set out in section 25 – a further safeguard - must also be met. This applies even if the situation is an emergency.
There are three types of deprivation of liberty that may be authorised under Part 2. First, the detention of P in circumstances amounting to a deprivation of liberty in a place in which care or treatment is available for P. This is the main type of deprivation of liberty falling within the scope of Part 2.
The two remaining types of deprivation of liberty that can be authorised under Part 2 are set out in section 25, namely detention while being taken to a place in which care or treatment is available, and detention in pursuance of a condition imposed during a period of permitted absence from a relevant place (as defined in section 27 and which that section makes clear fall within the scope of section 9). Paragraph 22 to Schedule 1 and paragraph 18 to Schedule 2 ensure that such detention is covered by an authorisation under those Schedules granted in respect of the detention of P in a specified place in which care or treatment is available for P. In the case of the latter detention, however, only the detention of P in pursuance of such conditions lasting 7 days or less is covered by the authorisation.
Section 26 deals with the scenario in which there is a need to take P to a place where P is to be detained in circumstances amounting to a deprivation of liberty, and the act of taking P there does not amount to a deprivation of liberty. In this case, section 26 makes it clear that any act which is, or is done in the course of, taking P to such a place is only covered by section 9, and therefore lawful under the Act, if the deprivation of liberty in that place has been authorised under the Act (unless the situation is an emergency) and the prevention of serious harm condition as defined in section 25 has been met.