The ‘acid test’ is whether people are under constant supervision and control and whether they are prevented from leaving. Compliance or lack of objection are irrelevant as to whether there is deprivation of liberty.

The court had to determine what amounted to deprivation of liberty as opposed to being restrained (for treatment) in the case of DE, who was treated within an institution.

The key question was whether DE was free to leave and live wherever and with whomever he chose. Not being free to leave would amount to deprivation of liberty.

HL, who was autistic with profound learning disabilities, regularly visited a day centre. After becoming agitated, he was admitted as an informal patient under section 131 of the MHA 1983. His carers appealed. The House of Lords found in favour of the hospital, but the ECtHR found that HL had been deprived of his liberty and that there were inadequate safeguards for voluntary patients.

The lacuna of statutory safeguards for voluntary patients is known as the ‘Bournewood gap’. This was addressed through the DoLS in the MCA 2005.

The patient was re-sectioned after an MHRT decision for discharge. The patient challenged the lawfulness of this.

The House of Lords determined that re-sectioning would be appropriate only if new material facts came to light and should not be used to trump the tribunal’s decision for any other purpose.

A person who was detained for schizophrenia was provided with treatment under section 63 of the MHA 1983. In the meantime, he developed a psychopathic disorder and required treatment. This was challenged on the basis that he had been detained for schizophrenia and not for the latter condition.

The House of Lords ruled that if the patient had been detained for treatment of a mental disorder and then developed a secondary psychiatric condition, the latter could be treated under the terms of the first detention, which was already in place.

These cases considered the suicide risk of patients with mental disorders and their right to life under Article 2 ECHR.

For mentally disordered patients where there was a real risk of suicide, hospital authorities have an operational duty to protect such patients, both for informal and formal patients.