RSS Feed

Tag Archives: deprivation of liberty

Deprivation mmmmeltdown

 

The case of MOD & Others (Deprivation of Liberty) 2015   http://www.bailii.org/ew/cases/EWCOP/2015/47.html   involved nine unrelated cases where Local Authorities were seeking test cases under the President’s new scheme for ‘fast-tracking’ Deprivation of Liberty authorisations.

 

You may recall that the Court of Appeal dealt with the President’s scheme as it was laid out in Re X  (saying that he did not have the power to do this in a judgment, but as it wasn’t really a judgment they had no jurisdiction to overturn it on appeal, but that in any event, a scheme which didn’t include a voice for P  – the person being detained, would almost certainly be wrong)   http://www.bailii.org/ew/cases/EWCA/Civ/2015/599.html

 

There’s a Practice Direction for the fast track process now, which will need some slight tweaking in light of Re X.

 

Anyway, this is the first reported authority on how these ‘fast track’ cases will work in practice.  The answer, in short would be  “not well” and “not fast”

 

The problem here is that the current scheme for P to be represented is through the Official Solicitor.   The Official Solictor told the Court that in the month after the Court of Appeal decided Re X  (which was effectively the green light to start bringing the DoLs cases) requests doubled.

 

District Judge Marin said this:-

I understand that at present, about 100 applications have been issued since the Court of Appeal’s decision three weeks ago with more arriving each week. At the hearing, one local authority told me that they alone have “hundreds” that are to be issued imminently.

 

[If anything, that’s something of an understatement. The ballpark figure nationally is that up to 100,000 such cases might be issued in a year, as a result of the wider definition for restriction of liberty settled on by the Supreme Court in Cheshire West]

 

20….the Official Solicitor wrote a letter which is not only referable to the cases before me but also to all other similar cases where he has been invited to act.

  1. The Official Solicitor said this:

    “..I am not currently in a position to accept the invitations to act as litigation friend in the ‘referrals’ in these cases.

    I am most unlikely, on my current understanding of my budgetary position, to be able, even when I have established a light touch process for this class of case, which is nevertheless consistent with my duties as litigation friend, and the external outsourcing to fund them, to be able to accept invitations to act in more than a relatively small proportion of the total expected numbers of these former streamlined procedure cases.

    Even before the dramatic increase for the month of June 2015 …. and these 43 actual and impending invitations to me to act as litigation friend in this class of case, in resource terms my CoP Healthcare and Welfare team was then running at or beyond full stretch, ‘fire fighting’ in a way that was unlikely to be sustainable beyond the short term.”

  2. He went on to elaborate:

    “There has been an increase in the number of invitations to me to act as litigation friend (‘referrals’) for P in Court of Protection welfare applications, including applications for orders the giving effect to which deprives P of their liberty.

    For the three calendar years 2011, 2012 and 2013 the number of new referrals a month averaged 28 cases. In 2014 this increased to an average monthly referral rate of 50 cases. In the five months to the end of May 2015, the monthly referral rate was in excess of 53 cases. In resource terms my CoP Healthcare and Welfare team was then running at or beyond full stretch, ‘fire fighting’ in a way that was unlikely to be sustainable beyond the short term.

    There has been a dramatic increase for the month of June 2015 with 99 new referrals to the end of the month. But that number for June does not include the 43 new invitations to act to which I am responding. As at the end of May I had 137 referrals in my CoP Healthcare and Welfare team, in the ‘pre-acceptance’ stage (which clearly did not include these former streamlined procedure cases).

    From time to time, I have taken those steps I have been able to take, having regard to budgetary constraints and balancing the needs of all my teams, to increase staff available to the work of the healthcare and welfare team as its caseloads have risen.

    But, as has been frequently noted publicly, I do not have the staff resources to manage the expected significant additional increase in caseload arising from the decision of the Supreme Court in Cheshire West.”

      1. Despite reference in the letter to a light touch scheme to allow cases to be processed quickly, the Official Solicitor nonetheless commented that:
        1. “But the simple facts are that:
  • I am not currently in a position to accept the invitations to act as litigation friend in the referrals in these cases; and,
  • I am most unlikely, on my current understanding of my budgetary position, to be able, even when I have established a light touch process, which is nevertheless consistent with my duties as litigation friend, and the external outsourcing to which have I referred above, to be able to accept invitations to act in more than a relatively small proportion of the total expected numbers of these former streamlined procedure cases.”
  1. As if to emphasise the seriousness of the matter, the Official Solicitor copied his letter to the President and Vice President of the court, the local authority applicants in the cases and the Ministry of Justice as his “sponsoring department”.

 

 

The Supreme Court have made a ruling that means there will be thousands more of this case, probably tens of thousands. The Court of Appeal has said that P must have a voice. The organisation who are responsible for P having a voice say that they are already operating at a referral rate four times that which they can actually take (and the deluge hasn’t even begun yet – it is something like 100 a month at the moment, and when these cases really get going, it will be more like five to eight THOUSAND a month)

 

As the wise Lucy Series has said, this is now an engineering problem, rather than a logical one. The system as it is, clearly is not going to cope with what is coming at it.   And once we solve the representation of P problem, we will then have the Best Interests Assessor problem, then the social work problem, then the lawyers for relatives problem, then the Judges problem, then the Court time problem.

You can’t go from a system which just about functions at 25 cases a month and turn it into one that can handle 5,000-8,000 cases a month.  Everyone in family law can tell the Court of Protection just how hard it was to cope with the post Baby P deluge, and that was at worst a doubling of demand. Here demand is going up TWO HUNDRED to THREE HUNDRED times.

 

We shall see what happens when these test cases come before Charles J, the vice president of the Court of Protection, but there really are no easy solutions here.  The Law Commission has recognised the need for a complete overhaul of the law on DoLS, but that’s years off.

 

  1. So far as the remaining eight cases are concerned though, I decided to transfer them to the Vice President of the Court of Protection to decide issues at a hearing which I listed as follows:

    1. Whether P must be joined as a party in a case involving deprivation of liberty

    2. Whether the appointment of a rule 3A representative is sufficient in a case involving deprivation of liberty

    3. If P must be joined as a party, in the absence of any suitable person to act as litigation friend, what should be done in circumstances where the Official Solicitor cannot accept an invitation to act.

    4. Whether a family member can act as litigation friend in circumstances where that family member has an interest in the outcome of the proceedings.

    5. Whether other deprivation of liberty cases not before the court on this occasion but which raise similar issues to this case should be stayed pending a determination of the issues recorded at paragraphs 1 to 4.

  2. With regard to the fifth issue, some of the parties expressed the concern that they have other cases listed and they were loathe to incur the cost of a hearing if a similar order is likely to be made or the court will stay the case pending determination of these issues. To address this, I have invited the Vice President to consider staying the cases presently listed such that hearings already listed may be vacated. It occurs to me that he may also wish to consider whether an automatic stay should be imposed on future cases that are issued.
  3. I have taken the course of referring these cases to the Vice President because it is vital that a decision is made on these issues as quickly as possible. None of the parties were equipped to fully argue the issues at the hearing as they would need to prepare: this is not a criticism as the issues were not identified until the hearing. There would therefore need to be another hearing and if so, it must make sense that this hearing produces a judgment from a senior judge which will set out the court’s view on these matters and direct the way forward. There will thus be a saving in time and costs which is consistent with the overriding objective in the court process.
  4. So far as the Official Solicitor is concerned, I do not discharge him in any of these cases and I have ordered him by 4pm on 22 July 2015 to file and serve on the parties a statement which shall:

    1 Provide a full and evidence based explanation of why he cannot cope with the number of deprivation of liberty applications in which he is invited to act as litigation friend

    2 Explain in full detail providing evidence where appropriate as to which areas or processes cause him difficulty and why

    3 Inform the court when he expects to be able to cope with deprivation of liberty cases and the likely time scale in which he can start work on a case.

    4. Provide any other information to the court that will assist the court to make decisions in this case regarding the position of the Official Solicitor.

  5. I believe that this information is vital to allow the court to properly consider his position.
  6. I am also anxious that the court can properly evaluate the availability of a litigation friend in all of the cases apart from MOD where one has been appointed. I therefore ordered the Applicants in each case by 4pm on 22 July 2015 to file a statement which shall:

    1 Explain what steps have been taken to find a litigation friend for P

    2 Set out whether IMCAs or other Advocates or resources are available to act as litigation friend or if not, why they are not available.

    3 List all family members who are willing to act as litigation friend.

  7. I was asked in all the cases to approve the deprivation of liberty of P on an interim basis. I declined to do so because it seems to me that the effect of the Court of Appeal’s judgment is to demand a higher level of scrutiny than the Re X process demanded and on the information available which is in the form of Re X, I am unable to do so. There are also some cases where the information is incomplete. However, my order provides that applications for interim orders can be renewed at the next hearing.
  8. By setting out the issues as they emerged at the hearing and making the orders I have referred to, my aim is to ensure that matters can be adjudicated upon and resolved as soon as possible.

 

“I know it when I see it” – deprivation of liberty

 

Readers will know that I don’t always agree with Mostyn J on issues of deprivation of liberty, but I think that he makes some very powerful points in this case and he makes them well.

 

Bournemouth Borough Council v PS 2015

http://www.bailii.org/ew/cases/EWCOP/2015/39.html

It involves a 28 year old, who the Court is naming “Ben”  (not his real name) who is on the autistic spectrum and has learning difficulties. The Local Authority who are providing him with care, asked the Court to make a ruling as to (a) whether the care package they were providing amounted to a deprivation of liberty and (b) whether if so, the Court would declare that this was in his best interests.

 

Firstly, Mostyn J wanted to ensure that all of the savings that Ben had accrued during his life by living frugally were not immediately eaten up by lawyers, since he would have to pay for a lawyer if represented through the Official Solicitor.  Mostyn J put different arrangements in place to ensure that Ben’s voice was heard, without draining his savings.  I applaud him for that, and it is a shame, that as he says, this may be one of the last times that this clever solution is useable.

  1. By virtue of COP Rule 2007 rule 141(1), as presently in force, Ben, as a party lacking capacity, is required to have a litigation friend. By virtue of great frugality Ben has accumulated appreciable savings from his benefits. It was foreseeable that were Ben to have a litigation friend who instructed solicitors and counsel, his savings would soon be consumed in legal costs. In my own order of 17 March 2015 I caused a recital to be inserted recording my concern that his means should not be eroded by legal costs. That same order recorded that Ben would be referred to the IMCA service for the appointment of an IMCA. That has duly happened and I have had the benefit of a helpful report from the IMCA, Katie Turner, where Ben’s wishes and feelings are clearly set out.
  2. In Re X (Deprivation of Liberty) No. 2 [2014] EWCOP 37 [2015] 2 FCR 28 Sir James Munby P at paras 12 – 15 and 19 explained that Article 6 of the 1950 Convention required that a protected person should be able to participate in the proceedings properly and satisfactorily with the opportunity of access to the court and of being heard, directly or indirectly, in the proceedings. However, these standards did not necessarily require that the protected person should be a party to the proceedings. There was no obstacle to the protected person participating in the proceedings without being a party.
  3. This ruling has been put on a statutory footing by a new rule 3A to the COP rules. This permits the protected person’s participation to be secured by the appointment of a non-legal representative. However this new rule does not take effect until 1 July 2015, some three weeks hence.
  4. In the circumstances, in what I suppose will be one of the last orders of its kind to be made, I directed that Ben be discharged as a party. I was wholly satisfied that his voice has been fully heard through the IMCA Katie Turner. Further, in relation to the question of deprivation of liberty, all relevant submissions have been fully put on both sides of the argument by counsel for the applicant and the first respondent.

 

One of the real hopes about Cheshire West when it went to the Supreme Court was that there would be a working definition of what ‘deprivation of liberty’ actually amounts to.  I didn’t like the Court of Appeal solution that it could be person specific  (i.e that a person with special needs can have less liberty and more restrictions to his liberty than an average person because his needs require it), but the Supreme Court’s acid-test is not proving much simpler than the old tangled case law.

The facts in this case which might have amounted to a deprivation of liberty were these:-

  1. There are no locks on the doors but there are sensors which would alert a staff member were he to seek to leave, although he has never tried to do so. Mr Morrison explained the situation as follows:

    “The property is such he is in theory able to leave his home on his own volition. Since he has lived at his bungalow he has never left of his own accord or verbally requested to leave without staff. However a door alarm is in place which would alert staff should Ben attempt to leave without staff attendance. If Ben were to leave the property without this having been arranged by staff they would quickly follow him, attempt to engage with him, and monitor him in the community. Ben requires one to one staff support at all times in the community. If he decided he didn’t want to return to his home, staff would firstly verbally encourage him to return, if this proved unsuccessful the Manager of Ben’s care agency would be contacted and they or another staff member would arrive and assist. If this proved unsuccessful further advice, support and attendance by Crisis Team and Social Services for crisis management would be sought and to consider whether a Mental Health Act assessment would be required. If this proved unsuccessful then consideration would be given to the attendance of the Police. Police attendance would be determined by the circumstances and if it is deemed his health and safety and that of others are at risk of harm. At all times staff would remain with Ben.”

  2. In his oral evidence Mr Morrison explained that if all attempts to persuade Ben to return home failed they would ask the police to exercise the powers under section 136 of the Mental Health Act 1983 to remove Ben to a place of safety. He also explained that consistently with a duty of common humanity if staff were out with Ben and he appeared to be about to step in front of a car they would prevent him from doing so. He stated in his witness statement:

    “Ben needs 1-1 staff support in the community as he lacks road and traffic awareness. Without staff support Ben would not take into account the traffic or road conditions at any given time. If Ben was unescorted in the community it is highly likely he would walk out into the road presenting a high risk of serious harm to him and potentially others. When Ben is escorted in the community he would be guided either verbally or physically and supported to cross a road and staff would intervene should he put himself at risk of significant harm.”

  3. He accepted under cross-examination that such an act of humanity could not amount to a deprivation of liberty, and I emphatically agree.
  4. In his witness statement Mr Morrison dwelt on one particular aspect of necessary supervision. He stated:

    “There is particular risk associated with Ben accessing public toilets in the community as the result of past incidents of Ben engaging in inappropriate sexual activity in public places including toilets. Ben has no understanding of the rights of other members of the public having access to public toilets safely and that any sexual activity in a toilet is illegal. Ben is supported by staff to access public toilets should he need to do so. … He is encouraged to use the locked cubicle of the disabled toilet and staff have a key to access should this be required. When Ben uses a male communal toilet the worker either remains outside the building or goes inside to support Ben. If Ben does not want to leave the toilet a male worker would enter the toilet and encourage him to leave. If a female worker was in attendance they would remain on site and the manager of the care agency would be called for assistance and attendance. A male worker or the intensive support team worker will arrive to support Ben. If this proved unsuccessful the Intensive support team would be called for specialist support and if unsuccessful then Police would be called.”

 

Remember that in deprivation of liberty, there’s a two stage test. Firstly, are the restrictions such as to amount to a deprivation of liberty? And secondly, if so, are those restrictions in the person’s interests?

I think it is really easy to conflate the two. It is really easy to look at this and say “of course he would be stopped if he tried to run into the road” and rather than answering it as a two stage question to simply combine the two, ending up with “someone with Ben’s difficulties would and should be stopped from running into the road, so no deprivation of liberty”  – but that’s a re-set to the Court of Appeal take on Cheshire West.

The comparison is not of Ben with other people with his difficulties and the liberty that they enjoy, but of Ben with other twenty-eight year olds, or Ben with other adults. Other adults are allowed to leave the place where they live, and are not going to be brought back by the police.  (unless their liberty is being deprived as a result of the criminal justice system, or secure accommodation, or the Mental Health Act, or a Deprivation of Liberty under the MCA).  You might consider it to be daft or irresponsible to give Ben the freedom to leave his home and go wherever he wants even if that’s in the middle of the night, but that’s why there’s the second limb – are the restrictions in his best interests?

Whether they are in his best interests or not, doesn’t stop the fact that the restrictions on his life amount to his liberty  being deprived, that’s a deprivation of liberty.

I think there’s also a blurring of whether deprivation of liberty is to be taken with a silent word ‘complete’ in there.  Few would argue that a man locked up in a prison cell, told when to eat and sleep and when he can exercise or go outside is a complete deprivation of liberty, and that what Ben is experiencing is not qualitively the same thing at all. But the Act doesn’t talk about ‘complete’ deprivation, and nor do the Supreme Court.

 

As Mostyn J says, the fuzziness around the edges of deprivation of liberty lead to applications of this kind being made, and as we saw at the outset, they don’t always make things better for Ben and people like him. He could have had all of his savings chewed up by a technical legal debate that he couldn’t care less about, because the chances are whether a Judge decides that his circumstances amount to a deprivation of liberty or not, the Judge is going to go on and say that the restrictions are in his best interests.

 

  1. In her lecture Lady Hale frankly stated that the decision of the Supreme Court of 19 March 2014 has had “alarming practical consequences”. I was told by Miss Davies that in the immediate aftermath of the decision the rate of suspected DOLs cases in this local authority rose by 1000% (it has recently reduced to 800%). This local authority is one of three in Dorset. Statistics from the Department of Health state that in the six month period immediately following the decision 55,000 DOLs applications were made, an eightfold increase on 2013-14 figures.
  2. The resource implications in terms of time and money are staggering. In the Tower Hamlets case I stated at para 60:

    “Notwithstanding the arrival of the streamlined procedure recently promulgated by the Court of Protection Practice Direction 10AA there will still be tens if not hundreds of thousands of such cases and hundreds of thousands if not millions of documents to be processed. The streamlined procedure itself requires the deployment of much man and womanpower in order to identify, monitor and process the cases. Plainly all this will cost huge sums, sums which I would respectfully suggest are better spent on the front line rather than on lawyers.”

  3. I do not criticise this local authority in the slightest for bringing this case. In the light of the decision of the Supreme Court local authorities have to err on the side of caution and bring every case, however borderline, before the court. For if they do not, and a case is later found to be one of deprivation of liberty, there may be heavy damages claims (and lawyers’ costs) to pay. I remain of the view that the matter needs to be urgently reconsidered by the Supreme Court.

Although I disagree with Mostyn J about the merits of returning to the Court of Appeal Cheshire West decision, I can’t argue with him on the underlined passage. This is not public money being well spent to make people’s lives better. This is a huge amount of money being expended to achieve very little.

 

Mostyn J’s view on the individual case is that the current circumstances do not amount to a deprivation of liberty and that it would only arise at the point where the police were asked to bring him back

 

I cannot say that I know that Ben is being detained by the state when I look at his position. Far from it. I agree with Mr Mullins that he is not. First, he is not under continuous supervision. He is afforded appreciable privacy. Second, he is free to leave. Were he to do so his carers would seek to persuade him to return but such persuasion would not cross the line into coercion. The deprivation of liberty line would only be crossed if and when the police exercised powers under the Mental Health Act. Were that to happen then a range of reviews and safeguards would become operative. But up to that point Ben is a free man. In my judgment, on the specific facts in play here, the acid test is not met. Ben is not living in a cage, gilded or otherwise.

Famously, a group of professionals working in the field were given case studies about various scenarios and asked to conclude whether each was, or was not, a deprivation of liberty and there was barely any consensus. Have things got better post Cheshire West, or are we now arguing relentlessly about ‘acid tests’ and ‘freedom to leave and ‘continuous supervision”?

 

What I like most about Mostyn J is that you never leave one of his judgments without having learned something new. There are not many people who would produce both poetry and an American case about hard core pornography to prove a point, but Mostyn J is one of them, and he has enriched my day by doing so.  I also believe that this case is now legal authority for both the elephant test and ‘if it looks like a duck’ and should you need to demonstrate those principles, you may pray this case in aid.   [The formulation of the duck principle is expressed in slightly different wording to the traditional use, so beware of a pedant challenging you]

 

  1. The continuing legal controversy shows how difficult it is to pin down a definition of what is a deprivation of liberty (i.e. detention by the state) as opposed to a restriction on movement or nothing beyond humane and empathetic care. It has been said on a number of occasions by the Strasbourg Court that the difference is merely one of degree or intensity, and not one of nature or substance (see, for example, Stanev v Bulgaria (2012) 55 EHRR 22 at para 115). Ultimately I think that whether a factual situation does or does not satisfy the acid test is likely to be determined by the “I know it when I see it” legal technique. That received its most famous expression from Justice Potter Stewart in the US Supreme Court in Jacobellis v Ohio (1964) 378 U.S. 184, an obscenity case, where he stated “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [of hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” The technique has been expressed in zoological metaphor. In Cadogan Estates Ltd v Morris [1998] EWCA Civ 1671, a case about a claim for a new lease, Stuart-Smith LJ stated at para 17 “this seems to me to be an application of the well known elephant test. It is difficult to describe, but you know it when you see it”. Another expression is the well known aphorism attributed to the American poet James Whitcomb Riley who wrote “when I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck”. The case of Stanev was perfectly obviously one of rigorous state detention. In describing Mr Stanev’s circumstances the court referred to the “severity of the regime”. The complainant was held in dire conditions in a remote compound enclosed by a high metal fence. Apart from the administration of medication, no therapeutic activities were organised for residents, who led passive, monotonous lives. The complainant needed prior permission to leave the compound, even to visit the nearby village. He had been denied permission to travel on many occasions by the management. In accordance with a practice with no legal basis, residents who left the premises for longer than the authorised period were treated as fugitives and were searched for by the police. The complainant had in fact been arrested by the police on one occasion.
  2. One does not need to reach for many legal tomes to realise that this was unquestionably a case of deprivation of liberty. The Strasbourg court knew it when it saw it.
  3. In KC v Poland [2014] ECHR 1322 a 72 year old widow, under the apparent care of a social guardian, who had previously been declared to be partially incapacitated, was placed by a court, against her wishes, in a care home on account of chronic schizophrenia and a disorder of the central nervous system. She could ask for permission to leave the care home on her own during the day. When she asked for the court order to be varied to allow her to leave for one hour a day to go to the shops and to allow her to stay in her room all day, this request was declined by the court on the basis that it was provided for by the internal regulations of the care home. The Polish government’s position was that she had never requested permission to leave on her own even for a short period of time. However, and unsurprisingly, the government did not contest that she had been deprived of her liberty under Article 5. It knew it when it saw it. The court, inevitably, agreed. At para 51 it stated:

    “In the present case, although the applicant has been declared only partially incapacitated and although the Government submitted that she could ask to leave the social care home on her own during the day, they did not contest that she had been deprived of her liberty. She was compulsory placed in the social care home, against her will, on the basis of a court decision. Therefore, the responsibility of the authorities for the situation complained of is engaged.”

  4. In my opinion that was a very obvious case of state detention

 

The problem with “I know it when I see it” is that it is going to be completely subjective. As Mostyn J pointed out, if a Local Authority worker or lawyer decides “I know it when I see it” and this isn’t a Deprivation of Liberty, and someone later challenges that it was and was an unlawful one, that then hangs on what a Judge will decide when he or she runs the “I know it when I see it” exercise. If they disagree with the LA, financial consequences will rack up. It is risk and uncertainty, and who wants risk and uncertainty?  (other than casinos and fans of Game of Thrones)

Gilded cage – junior edition

 

Those of you who follow deprivation of liberty cases will be aware that the landscape is markedly different after the Supreme Court in Cheshire West.  Just how different remains to be seen, as individual cases come before the Courts and are tackled.

 

Keehan J was faced with a difficult concrete example of the uncertainty following Cheshire West in

 

Re D (A Child :Deprivation of liberty) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/922.html

 

This case involved a boy, not quite sixteen, with considerable difficulties.

D was born on 23 April 1999 and is 15 years of age. He was diagnosed with Attention Deficit Hyperactivity Disorder at the age of 4, with Asperger’s Syndrome at the age of 7 and with Tourette’s syndrome at the age of 8.

 

He had been admitted to hospital for psychiatric treatment as a result and is just about to be discharged into a residential care setting. He had been on a locked psychiatric ward for 15 months. This is obviously a very high-end example.

 

In this case, as a result of the Cheshire West decision, there was considerable dispute about whether D was being deprived of his liberty and whether his parents consent to this was sufficient to allow this or whether a DoLs authorisation was required.

The hospital trust considered that DoLS authorisation was required and that to conclude that D’s parents had the right to consent to D being deprived of his liberty was too broad a view of PR.

The Local Authority considered that D’s parents were consenting, and thus this was not a deprivation of liberty in the DoLS sense.

  1. The Applicant Trust submits that the circumstances in which D lives at Hospital B satisfy the first limb of the Cheshire West test namely:

    “the objective component of the confinement in a particular restricted place for a not negligible length of time.”

  2. Further the Trust submits that D’s parents cannot consent to his placement at Hospital B because such a decision, to consent to what would otherwise amount to a deprivation of liberty, falls outside the ‘zone of parental responsibility’.
  3. Accordingly, the Trust submits the appropriate course is to seek the court’s approval of D’s placement under the inherent jurisdiction of the High Court.
  4. The local authority adopts a diametrically opposed stance. It submits that the circumstances of D’s placement do not amount to a deprivation of liberty. Further, it submits that the decision of D’s parents to consent to his placement at Hospital B falls within the proper exercise of parental responsibility. Accordingly what might otherwise constitute a deprivation of liberty does not do so because the second and third limbs of the test in Cheshire West are not satisfied namely:

    ” (b) the subjective component of lack of valid consent; and

    (c) the attribution of responsibility to the state”.

This has substantial implications – all disabled children who are receiving care from the State and whose liberty is being restricted (in order to keep them safe) on the Trust’s interpretation of Cheshire West would need to have that deprivation of liberty authorised – even if the parents were consenting. The real bad news there is that for people under 16, the Mental Capacity Act 2005 doesn’t cover them and such deprivation of liberty would have to be authorised under the Children Act 1989.  Which means, to spell it out, placing all of those disabled children in Secure Accommodation.

 

Which also means making Court applications. Which also means the residential homes that are caring for these disabled children needing to go through the registration process to qualify as Secure Units.

 

It is an interpretation of Cheshire West which does make logical sense from the judgment, but which has immensely worrying consequences. Not least that the Secure Accommodation provisions might well not be met for these children and the alternative would be that carers at the residential units would thus have no power to restrict the children’s movements  (for example, not being able to stop them from running into the road)

 

[I note that Keehan J in this case specifically rules that the High Court can authorise deprivation of liberty for children under the inherent jurisdiction. I’m really rather dubious about that. I know the inherent jurisdiction is a magic bullet for every situation with almost limitless powers, but to use it to sidestep s25 Secure Accommodation provisions seems to me to have real difficulties with s100 – particularly s100 (4) (a) which bars granting leave to a Local Authority to make an application under the inherent jurisdiction if there is a statutory order the LA could apply for instead, and s100 (4) (b) which says that leave can’t be granted unless the Court is satisfied that significant harm would result to the child otherwise. Would anyone ever appeal it? probably not. ]

 

Any Local Authority lawyer dealing with deprivation of liberty or disabled / disturbed children is really really nervous about how this case is going to turn out. It is a big test case.

Here’s the practical arrangements for D, to consider whether they amount to a deprivation of liberty

Dr K describes D’s life at Hospital B as follows:

“D is residing on X one of the two buildings which make up the adolescent service. Each building is a six-bedded unit. Each young person has their own bedroom, and shares bathroom and living areas with the other patients. There is a school room attached to each building, and all the students receive full time education provided from a special school outreach service.”

“D’s unit is staffed 24 hours a day.

It has a locked front door. D does not leave the ward without a staff member or his family accompanying him. He has been offered opportunity to undertake small tasks by himself, such as emptying the bins, but he says he is scared. Unescorted leave would be considered as part of his treatment package to see how he fares.

D has his own bedroom, which he can access whilst he is on the unit at his leisure. He shares a bathroom and residential areas within the building.

D is on general observations. This means that he is checked on every half an hour or so. However, D seeks out contact with staff more regularly within that time and this means that he is under direct observation on a much more regular basis. I am of the view that he is under constant supervision and control.

His school is integral to the building. He goes off site for all relevant school activities such as, to music sessions on site, and to activities which take place in the community, such as shopping and cafes. He leaves the unit on a daily basis, accompanied by staff.

He is independent in his self-care, and requires minimal support for this. He eats a varied diet independently, and is able to vocalise his preferences.

Attempts to engage him in more serious conversation unnerves him, and he will try to deflect the subject, or directly challenge the person, by telling them that he is not happy. I am of the view that this is reflected in the anxiety he has shown around his discharge. My team will need to manage this carefully within the discharge process.

When out in the community, D is supported one-to-one. He has stated that he would be anxious to go out on his own, and prefers to be accompanied by staff. On occasion he has to be reminded about his behaviour when out, as he might stare and pull faces at strangers. He has been encouraged to do some tasks independently, such as emptying the bins outside, but he has stated that he was too anxious to do it by himself and so he is accompanied when doing this.”

 

That does seem, from Cheshire West, to be deprivation of liberty, and indeed Keehan J found it to be so, and all parties accepted that those circumstances did amount to a deprivation of liberty following Cheshire West.

In the ultimate analysis counsel for the Trust and counsel for the local authority accepted that the circumstances in which D was accommodated amounted to a deprivation of liberty subject to the issue of consent to the placement.

On the facts of this case I am wholly satisfied that D lives in conditions which amount to a deprivation of his liberty. He is under constant supervision and control. The fact that D enjoys residing in the unit in Hospital B, that he is comfortable there and readily seeks out and engages with members of staff are irrelevant factors when considering whether there is a deprivation of liberty. So too are the facts that the arrangements have been made in his welfare best interests and have been, and are, to his benefit. A gilded cage is still a cage.

 

The issue then, was whether the parents could consent to D’s liberty being deprived in this way.

  1. Mr Cowen, on behalf of the local authority sought to contend that:

    i) Cheshire West did not apply to those cases where the young person concerned was under the age of 16 years;

    ii) in such a case the decision in Cheshire West, that the disability or mental disorder of the young person concerned was irrelevant to the question of whether there was a deprivation of liberty, did not apply; and

    iii) the court should prefer and apply the ‘relative normality’ test propounded by the Court of Appeal in P and Q.

  2. I do not accept any of those propositions. The protection of Article 5 of the Convention and the fundamental right to liberty applies to the whole of the human race; young or old and to those with disabilities just as much to those without. It may be those rights have sometimes to be limited or restricted because of the young age or disabilities of the individual but ‘the starting point should be the same as that for everyone else’, per Baroness Hale: Cheshire West at paragraph 45.
  3. The majority in Cheshire West decided that what it means to be deprived of liberty is the same for everyone, whether or not they have a physical or mental disability: per Baroness Hale in Cheshire West at paragraph 46.
  4. I accept the essential ratio of Cheshire West does not apply to the circumstances of this case. Nevertheless, in my view, the acid test definitions of a deprivation of liberty apply as much to D as they did to the subjects of the appeals in Cheshire West.
  5. In the premises I do not accept the local authority’s third submission that I should reject the approach of the Supreme Court in Cheshire West and apply the Court of Appeal’s test of ‘relative normality’. I do not understand the logic of the submission that I should hold that the decision of the Supreme Court does not apply to the facts of this case but then resurrect and apply the test propounded by the Court of Appeal which was expressly rejected by the majority of the Supreme Court.
  6. The essential issue in this case is whether D’s parents can, in the proper exercise of parental responsibility, consent to his accommodation in Hospital B and thus render what would otherwise be a deprivation of liberty not a deprivation of liberty (ie the 2nd limb in Cheshire West is not satisfied).

 

That’s quite dense, so I’ll walk you through it. The argument was that Cheshire West, being a Mental Capacity Act case, doesn’t strictly apply to minors. The Judge said that this was right, but that the Supreme Court’s acid test as to what sort of restrictions amounted to a deprivation of liberty DID apply also to children, and that the Local Authority’s argument that the restrictions in place for D were the sort of restrictions that a child like D would have (relative normality) was exactly the decision reached by the Court of Appeal in Cheshire West that had been rejected.

When considering whether D’s liberty had been deprived, his physical or mental disabilities were not a relevant factor  – they might well be relevant when later considering whether those restrictions were the right thing for him but not at the stage of considering whether they amounted to a deprivation of liberty.

The argument that children like D need these restrictions, so they aren’t a deprivation of liberty in the way that they would be for a child who didn’t have D’s issues was completely rejected by the High Court.

The sole issue was whether the parents could exercise parental responsibility to CONSENT to those restrictions, thus making the deprivation of liberty one that was effectively consented to, and thus not a breach of Article 5.  IF the parents could consent, then there would not NEED to be a court order or declaration to justify the article 5 breach, since the restrictions would be by consent and the breach would fall away.

 

Mr McKendrick for the Trust set out the arguments for why the Trust considered that the parents could NOT consent.  (I have to confess that in reading this, much as I want the LA to win this argument and so much rides on it, I was thinking that Mr McKendrick’s points were right)

48. Mr McKendrick reminds me that Dr K does not consider D to be Gillick competent to consent to his residence, treatment or care. He referred me to the provision of the new MHA Code of Practice which comes into effect on 1 April 2015. Paragraphs 19.47 – 19.48 provide:

      1. 19.47 An additional and significant factor when considering whether the proposed intervention in relation to a child or young person is a restriction of liberty or amounts to a deprivation of liberty is the role of parental control and supervision. Practitioners will need to determine whether the care regime for, and restrictions placed on, the child or young person accord with the degree of parenting control and supervision that would be expected for a child or young person of that age. For example, whereas it is usual for a child of under 12 years not to be allowed out unaccompanied without their parent’s permission, this would not usually be an acceptable restriction on a 17 year old. Account also needs to be taken of the particular experience of the child or young person. For example, a younger child who has been caring for their parent, including shopping for the household and/or accompanying their parent to medical appointments, might not be used to being prevented from going out unaccompanied.
      1. 19.48 Prior to the Supreme Court’s judgment in Cheshire West, case law had established that persons with parental responsibility cannot authorise a deprivation of liberty. Cheshire West clarified the elements establishing a deprivation of liberty, but did not expressly decide whether a person with parental responsibility could, and if so in what circumstances, consent to restrictions that would, without their consent, amount to a deprivation of liberty. In determining whether a person with parental responsibility can consent to the arrangements which would, without their consent, amount to a deprivation of liberty, practitioners will need to consider and apply developments in case law following Cheshire West. In determining the limits of parental responsibility, decision-makers must carefully consider and balance: (i) the child’s right to liberty under article 5, which should be informed by article 37 of the UNCRC, (ii) the parent’s right to respect for the right to family life under article 8, which includes the concept of parental responsibility for the care and custody of minor children, and (iii) the child’s right to autonomy which is also protected under article 8. Decision makers should seek their own legal advice in respect of cases before them. (Chapter 26 provides guidance on the use of restrictive interventions.)
  1. The Trust submitted that D’s parents cannot consent to a deprivation of his liberty in Hospital B for 11 reasons: i) D has the same Article 5 ECHR rights as an adult and the same definition of deprivation of liberty applies to him as it does to adults;

    ii) D has a mental disorder, he is deprived of his liberty pursuant to Article 5 (1) (e) – see Cheshire at paragraph 6, per Baroness Hale: “Article 5(1)(e) permits the lawful detention of persons of unsound mind, but that detention has to conform to the Convention standards of legality, and the doctrine of necessity did not provide HL with sufficient protection against arbitrary deprivation of his liberty. The court was struck by the difference between the careful machinery for authorising the detention and treatment of compulsory patients under the Mental Health Act and the complete lack of any such machinery for compliant incapacitated patients such as HL”;

    iii) D has been resident on a locked psychiatric ward for fifteen months;

    iv) D can only leave that ward with adult 1:1 supervision;

    v) whilst his parents consented to his placement, such consent much be seen in the context they could not accommodate him at their home;

    vi) he does not lead a life of relative normalcy;

    vii) D is fifteen and shortly will be afforded the protection of the MCA to authorise and review any deprivation of liberty occasioned by being deprived of his liberty at Hospital B (by way of application of s. 4A MCA, given Schedule A1 would not apply to him until he is 18);

    viii) to rely (effectively solely) on parental consent, when D’s parents cannot accommodate and care for him (and have no or other limited options for their son) is an insufficient safeguard to protect D’s Article 5 ECHR rights;

    ix) parental consent over a period of fifteen months, as means of review and safeguard, is not compliant with Article 5 (4);

    x) it is out with the reasonable zone of parental control to authorise the deprivation of liberty for such a prolonged period of time and is inconsistent with a child’s Article 5 ECHR right;

    xi) hospital clinicians remain uneasy about caring for and depriving a child of his liberty, given the length of time and given his age, with only authority provided by way of parental consent.

  2. The Trust concludes its submissions as follows:

    The applicant recognises there may be cases where parents can authorise the deprivation of liberty of a younger child for a shorter period of time, in a hospital setting. The applicants are not certain the concession approved by the court in RK is correct. Indeed it seems clear parents can authorise the first stage of the deprivation of liberty test (i.e. they can deprive, rather than just restrict, the liberty of their children, at home) but that such deprivation is not an Article 5 deprivation of liberty, because it is not attributable to the state. Each case ultimately must be considered on its facts (however unpalatable such an approach may be in respect of public resource considerations).

    Whilst the applicant (in many ways) would gratefully submit that D is not deprived of his liberty, it does not consider it is appropriate for a public body to interpret the law in a manner disadvantageous to the protection of a vulnerable child’s rights. Whilst the applicant would readily adopt a “pragmatic approach” as identified by Gross LK in RK, the applicant submits the preferred conclusion, on the facts of these proceedings, is that D is deprived of his liberty, such deprivation is attributable to the state and his parents cannot provide valid consent.

 

Powerful stuff.

Here comes the decision.

  1. When considering the exercise of parental responsibility in this case and whether a decision falls within the zone of parental responsibility, it is inevitable and necessary that I take into account D’s autism and his other diagnosed conditions. I do so because they are important and fundamental factors to take into account when considering his maturity and his ability to make decisions about his day to day life.
  2. An appropriate exercise of parental responsibility in respect of a 5 year old child will differ very considerably from what is or is not an appropriate exercise of parental responsibility in respect of a 15 year old young person.
  3. The decisions which might be said to come within the zone of parental responsibility for a 15 year old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15 year old son suffers with D’s disabilities. Thus a decision to keep such a 15 year old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill treatment. The decision to keep an autistic 15 year old boy who has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility.
  4. The parents of this young man are making decisions, of which he is incapable, in the welfare best interests of their son. It is necessary for them to do so to protect him and to provide him with the help and support he needs.
  5. I acknowledge that D is not now cared for at home nor ‘in a home setting’. His regime of care and treatment was advised by his treating clinicians and supported by his parents. They wanted to secure the best treatment support and help for their son. They have done so. It has proved extremely beneficial for D who is now ready to move to a new residential home out of a hospital setting. What other loving and caring parent would have done otherwise?
  6. Those arrangements are and were made on the advice of the treating clinicians. All professionals involved in his life and in reviewing his care and treatment are agreed that these arrangements are overwhelmingly in D’s best interests. On the facts of this case, why on public policy or human rights grounds should these parents be denied the ability to secure the best medical treatment and care for their son? Why should the state interfere in these parents’ role to make informed decisions about their son’s care and living arrangements?
  7. I can see no reasons or justifications for denying the parents that role or permitting the state to interfere in D’s life or that of his family.
  8. I accept the position might well be very different if the parents were acting contrary to medical advice or having consented to his placement at Hospital B, they simply abandoned him or took no interest or involvement in his life thereafter.
  9. The position could not be more different here. D’s parents have regular phone calls with him. They regularly visit him at the unit. Every weekend D has supported visits to the family home. He greatly enjoys spending time at home with his parents and his younger brother.
  10. In my judgment, on the facts of this case, it would be wholly disproportionate, and fly in the face of common sense, to rule that the decision of the parents to place D at Hospital B was not well within the zone of parental responsibility. Conclusions
  11. I am satisfied that the circumstances in which D is accommodated would amount to a deprivation of liberty but for his parents’ consent to his placement there.
  12. I am satisfied that, on the particular facts of this case, the consent of D’s parents to his placement at Hospital B, with all of the restrictions placed upon his life there, falls within the ‘zone of parental responsibility’. In the exercise of their parental responsibility for D, I am satisfied they have and are able to consent to his placement.

 

So whilst for D, a gilded cage is still a cage and one doesn’t take into account his disabilities, whether or not his parents are able to consent to him being in that cage is a decision that CAN take into account his disabilities.

 

Bodey and DoLs

Mr Justice Bodey, sitting in the High Court dealt with a case involving a 93 year old woman with severe dementia, and had to resolve whether the protective mechanisms that had been put in place by the Local Authority amounted to a deprivation of liberty (or DoLs).  And if so, whether the Court would authorise those.

 

W City Council v Mrs L  2015

http://www.bailii.org/ew/cases/EWCOP/2015/20.html

 

This might have wider implications, because the Court were being asked specifically about two issues :-

 

1. The deprivation was in the woman’s own home, rather than in accommodation provided by the State.

2. The woman herself was not objecting to the restrictions, or kicking against them.

Unusually here, it was the LA who were saying to the Court that their actions amounted to a deprivation of liberty, and the family were saying that it wasn’t.

Here’s what the restrictions amounted to:-

  1. As I have said, Mrs L is 93. She was widowed in 1976 and has lived since about that time, 39 years, in her current home, the upper floor flat in a 2-storey building. She has 4 adult daughters, 3 of whom live in England and one abroad. Her daughter PC is, as I have said, her litigation friend. If I may say so, the family seem to have done extraordinarily well in caring proactively for Mrs L, who was diagnosed with dementia in 2004. Since that time, her condition has deteriorated, and understandably is deteriorating. Her family have adapted her furniture and routines to take account of all her needs. She fell twice in 2013, the first time injuring her hip and requiring an operation. The second time in November 2013 she suffered no injury, but became disorientated and wandered away from her home very unsuitably clothed into the local town. She was returned home by the Police or Social Services. This event led to the involvement of the Local Authority.
  2. At that time, the garden at Mrs L’s home was not enclosed. In the light of Mrs L’s having wandered off, the family arranged for a fence and two gates to be erected, and for the garden to be generally improved. The gates are side by side: one to use on foot, and the other a double gate to admit vehicles, presumably for the benefit of the young couple who live with their children in the ground floor flat. The pedestrian gate latch is of the kind often seen on bridleway gates, having a vertical metal lever on the gate, which is pulled away from the gate post to open the gate, and which springs back to engage with a clip on the gate post in order to re-close the gate. The double gates are secured by a metal throw-over loop, which holds the two central uprights together. The front door of Mrs L’s flat which leads into this garden area is locked with a Yale lock, which Mrs L can and does operate herself. This enables her to have access to her garden as and when she wishes it. All agree that she gets great pleasure from being able to go out and enjoy the garden.
  3. The Local Authority have undertaken assessments of the safety of the above arrangements. They have concluded that whilst neither of the gate latches lock, they are quite stiff and heavy to operate. There was an occasion when Mrs L was observed to open the pedestrian gate when asked to do so. This was before a wedge was added to the gate by Mrs L’s downstairs neighbours (to stop their young children getting out) which has made the gate more difficult to open. The garden is felt by everyone to be sufficiently secure, although with an unavoidable risk that someone might leave the gate open. At night, there are door sensors which switch themselves on in the evening and off in the morning. They would be activated if Mrs L were to leave the property at night, although she has not in fact done so in the 6 months or so since they were installed. An alarm call would automatically be made to one of her daughters, who lives nearby. If that daughter were not available, the call would re-route go to the emergency services. This would enable Mrs L to be guided safely back home.
  4. Mrs L is happy and contented where she lives. A care package is provided for her by the Local Authority’s specialist dementia carers, who visit her 3 times a day. She is orientated within the property, steady on her feet, motivated to engage in simple activities, and has a clear interest in her garden. There is a documented history of her strong sense of belonging in her current home, and of her fierce sense of independence. She displays an acceptable level of mobility. Her immediate environment can be seen to give her significant pleasure and stimulation. She is able to enjoy the company of her cat. All agree it would cause her distress to be moved to residential care. All agree too that the current arrangements of family and Social Services working together are in Mrs L’s best interests and work well.
  5. The facts on which the Local Authority relies in particular for saying that the arrangements amount to a deprivation of Mrs L’s liberty are: (a) that the garden gate is kept shut, thereby preventing or deterring Mrs L from leaving the property unless escorted; (b) that the door sensors are activated at night, so that Mrs L could and would be escorted home if she left; and (c) that there might be circumstances in an emergency, say if the sensors failed to operate at night, when the front door of the flat might have to be locked on its mortice lock, which Mrs L cannot operate (as distinct from the Yale lock, which she can). She would then be confined to her flat. These arrangements are said by the Local Authority to be integral to its care plan for Mrs L, which is overseen by her social worker. The Local Authority thus asserts that it is responsible, as a public body, for a deprivation of Mrs L’s liberty.

 

This is a good illustration of how unsatisfactory things are at present with DoLs.  On those facts, my gut feeling would be that it ISN’T an article 5 deprivation of libery. BUT, given that if you get this wrong, compensation is payable to the person being deprived of their liberty (and at least one Judge has ordered that that is on a daily rate), would I be sure? Or even fairly sure? I can absolutely see why this LA wanted to make the application and have a Judge decide.

 

Mr Justice Bodey sets out the law very well (this would be a good “go-to” judgment for these issues)

 

On the two key issues in the case, Bodey J said that both were relevant factors in weighing up whether the restrictions amounted to a deprivation of liberty, but neither of them were determinative (i.e a person CAN be deprived of liberty in their own home and a person CAN be deprived of their liberty even if they seem perfectly happy about it, but whether or not they ARE being deprived of their liberty depends on the facts of the case)

 

23. ..it is overwhelmingly clear that Mrs L is where she always wanted to be when she was capacitous: and where not only has she not shown or expressed any dissatisfaction with the arrangements, but has demonstrated positively a continuing satisfaction with being in her own home. Further, her home is clearly not a ‘placement’ in the sense of a person being taken or taking herself to some institution or hospital.

  1. The fact of Mrs L referring to, and demonstrating by her demeanour, this continuing contentment in her home is not in issue. It is right that she is of course not capacitated. Otherwise, this case would not be happening. But I do find that she is capable of expressing her wishes and feelings, as is referred to in the documents and shown in such things as for example her choice of clothes, the choice of what she does around the property, and in her going in and out of the garden at will. Although I accept the general need for the caution which Miss Hirst urges me to exercise, this consideration must be relevant in the evaluation of whether Mrs L is being ‘deprived’ of her ‘liberty’ within Article 5.
  2. This case is thus different from one involving institutional accommodation with arrangements designed to confine the person for his or her safety, and where that person, or someone on his or her behalf, is challenging the need for such confinement. At paragraph 38 of Cheshire West Lady Hale spoke about ‘the presence or absence of coercion’ being a relevant consideration. As I have said, the range of criteria to be taken into account includes the type, duration, effects and manner of implementation of the arrangements put in place. The fact that those criteria are prefaced by the words ‘such as’ demonstrates that they are not intended to be exhaustive. It is a question of an overall review of all the particular circumstances of the case.
  3. I observe too that Article 5 refers to everyone having a right to ‘liberty and security of person’ [emphasis added]. Mrs L’s ‘security’ is being achieved by the arrangements put into place as being in her best interests, even though involving restrictions. Such restrictions are not continuous or complete. Mrs L has ample time to spend as she wishes, and the carer’s visits are the minimum necessary for her safety and wellbeing, being largely concerned to ensure that she is eating, taking liquids and coping generally in other respects.
  4. This is a finely balanced case; but on the totality of everything that I have read in the files, I have come to the conclusion and find that whilst the arrangements (clearly) constitute restrictions on Mrs L’s liberty, they do not quite cross the line to being a deprivation of it. If I were wrong about that, and if there is a deprivation of Mrs L’s liberty, is it to be imputed to the State? On the facts, I find not. This is a shared arrangement set up by agreement with a caring and pro-active family: and the responsibility of the State is, it seems to me, diluted by the strong role which the family has played and continues to play. I do not consider in such circumstances that the mischief of State interference at which Article 5 was and is directed, sufficiently exists.
  5. In these circumstances, my decision is simply that there is no deprivation of Mrs L’s liberty. This is not per se because Mrs L is in her own home; nor because she wishes to be there. Those features alone would not necessarily stop particular arrangements amounting to a deprivation of liberty. Rather it is a finely balanced decision taken on all the facts of the particular case. The question of the court’s authorising the arrangements concerned does not in the circumstances arise, although I would have authorised them if it did. The question of Mrs L’s up to date best interests is better considered back in Birmingham by the District Judge, and I anticipate that it should be capable of being dealt with by consent.

 

 

Even Professionals can find it difficult to know if a person is being deprived of their liberty…

Even Professionals can find Deprivation of Liberty confusing

Mostyn Powers

 

Long-term readers will have picked up by now that there’s always something of value in a judgment by Mostyn J.  He follows that Raymond Chandler dictum of putting a diamond on every page.

 

This one follows his earlier decision (which many of us questioned at the time) that he wasn’t bound by the Supreme Court in Cheshire West and went with the principle that had been rejected by them to decide that a person wasn’t being deprived of their liberty

http://suesspiciousminds.com/2014/11/20/have-we-just-given-up-on-the-notion-of-the-supreme-court-being-supreme/

In that case, Mostyn J declared that he was bound by the decision of the Supreme Court in Cheshire West, though making it plain that he didn’t agree with it, but then didn’t follow it, distinguishing his case on its facts. He felt that it was something that the Supreme Court should look at again, and invited an appeal.

 

This is the follow-up judgment after the Court of Appeal reached the entirely unexpected conclusion that the Supreme Court had already decided that the FACT of whether a person was deprived of their liberty didn’t take into account whether their disabilities made that necessary, that’s for the second stage as to whether the Court should authorise that deprivation of liberty.

Readers may recall a previous occasion on which Mostyn J didn’t take it entirely in his stride when the Court of Appeal overruled him and he disagreed with their view.  He drops the “with the profoundest of respect” bomb during the judgment where he has to deal with the case again.

http://suesspiciousminds.com/2014/10/26/with-the-profoundest-respect/

 

So, given that scenario, one is following the firework code when reading Mostyn J’s decision.

Rochdale v KW 2015

http://www.bailii.org/ew/cases/EWCOP/2015/13.html

 

Firstly, here’s what happened in  the Court of Appeal  (I haven’t seen this reported yet, but given that the original Rochdale v KW 2014 unleashed the contents of a cattery into a pigeon coop, it is important)

The appeal was fixed for a full oral hearing on 4 or 5 February 2015. However, on 30 January 2015 the Court of Appeal allowed the appeal against my decision by consent and without a hearing purportedly pursuant to the terms of CPR PD52A para 6.4. Its order provided as follows:

“UPON reading the appeal bundle filed with the court.

AND UPON the Respondent confirming that it does not intend to oppose the appeal

IT IS ORDERED that:

1. This appeal is allowed.

2. For the review period as defined below, KW is to reside and receive care at home pursuant to arrangements made by Rochdale Council and set out in the Care Plan; and to the extent that the restrictions in place pursuant to the Care Plan are a deprivation of KW’s liberty, such deprivation of KW’s liberty is hereby authorised.

3. If a change or changes to the Care Plan that render it more restrictive have as a matter of urgent necessity been implemented Rochdale Council must apply to the Court of Protection for an urgent review of this order on the first available date after the implementation of any such changes.

4. If a change or changes to the Care Plan that render it more restrictive are proposed (but are not required as a matter of urgent necessity) Rochdale Council must apply to the Court of Protection for review of this order before any such changes are made.

5. In any event. Rochdale Council must make an application to the Court no less than one month before the expiry the review period as defined below for a review of this order if at that time the Care Plan still applies to KW. Such application shall be made in accordance with any Rules and Practice Directions in effect at the date of the application being filed or, if not otherwise specified, on form COPDOL10.

6. Any review hearing shall be conducted as a consideration of the papers unless any party requests an oral hearing or the Court decides that an oral hearing is required.

7. “The review period” shall mean 12 months from the date on which this order was made or, if an application for review has been filed at Court before that date, until determination of such review application.

8. Nothing shall published that will reveal the identify of the Appellant who shall continue to be referred to as “KW” until further order pursuant to section 12 of the Administration of Justice Act 1960.

9. There shall no order for costs between the parties.

10. There shall be a detailed assessment of KW’s public funding costs.”

Attached to the order was a piece of narrative, prepared by counsel for the appellant, which provided as follows:

“Statement of reasons for allowing the appeal as required pursuant to CPR, PD52A at para 6.4.

The reason for inviting the Court of Appeal to allow the appeal by consent is that the learned judge erred in law in holding that there was not a deprivation of liberty. He was bound by the decision of the Supreme Court in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & ors [2014] UKSC 19; [2014] AC 986 (“Cheshire West“) to the effect that a person is deprived of their liberty in circumstances in which they are placed by the State in a limited place from which they are not free to leave. It is accepted by both parties on facts which are agreed that this was the position in the case of KW and that the learned judge also erred in holding that KW might soon not have the ability to walk or leave home on her own.”

That’s right, everyone involved in the case (except Mostyn J) wrote to the Court of Appeal saying that they thought Mostyn J had got it wrong and agreeing that there HAD been a deprivation of liberty and that the Court should authorise it.

The case then came back before Mostyn J, hence this judgment and hence this piece. I would imagine that the advocates did not have the most peaceful of sleep the night before that particular hearing.

Mostyn J did not take this terribly well.

He questioned whether the Court of Appeal had jurisdiction to make such a decision on a consent basis without actually hearing from the parties.  He has a point here, I think, it must be very unusual. Even in cases where everyone is agreed that a mistake has been made, there is usually a judgment given.

  1. CPR 52.11(3) provides:

    “The appeal court will allow an appeal where the decision of the lower court was –

    (a) wrong; or

    (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”

  2. CPR PD52A para 6.4 provides for a very limited derogation from this simple and necessary rule. It is headed “SECTION VI – DISPOSING OF APPLICATIONS AND APPEALS BY CONSENT” and provides:

    Allowing unopposed appeals or applications on paper

    6.4 The appeal court will not normally make an order allowing an appeal unless satisfied that the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity. The appeal court may, however, set aside or vary the order of the lower court by consent and without determining the merits of the appeal if it is satisfied that there are good and sufficient reasons for so doing. Where the appeal court is requested by all parties to allow an application or an appeal the court may consider the request on the papers. The request should set out the relevant history of the proceedings and the matters relied on as justifying the order and be accompanied by a draft order.”

  3. It can be seen that the strict terms of CPR 52.11(3) are modified by the deployment of the adverb “normally” in the first sentence. In the second sentence the sole exception to the primary rule is spelt out. An appeal may be allowed by consentwithout determining the merits of the appeal if it is satisfied that there are good and sufficient reasons for so doing”. Therefore it follows that this procedure, which involves a determination on the papers and without an oral hearing, cannot be used to determine an appeal on the merits.
  4. One can see the need for this provision. Following the first instance decision there may have been a change in the law deriving from legislation or a binding decision of a higher court. In such a case it would be necessary to set aside the original decision without a determination on the merits. Similarly, a procedural order may require to be set aside without a determination on the merits because of a change of circumstances or a mistake. It is impossible to see however how this procedure could be used to overthrow on the merits the central basis of a first instance decision particularly where that involved a clear statement of legal principle in relation to the facts as found.
  5. My limited researches in the field of family law reveal that where a merits based decision has been reached at first instance, which all parties agree should be set aside on appeal, then there is a hearing and a judgment. This is consistent with the only reasonable interpretation of para 6.4. The judge whose decision is being impugned is surely entitled to no less, and there is a plain need to expose error so that later legal confusion does not arise. Thus in Bokor-Ingram v Bokor-Ingram [2009] EWCA Civ 412 Thorpe LJ held as follows:

    “1. In a judgement handed down on 23 June 2008, Charles J dismissed an application brought by the wife to set aside a consent order reached on 20 July 2006 at an FDR appointment determining her claims for ancillary relief for herself and the two children of the family.

    2. Charles J dismissed the wife’s application and refused her permission to appeal. Her application for permission was renewed to this court by a Notice of Appeal dated 7 August 2008. Wilson LJ granted permission to appeal on 30 October 2008, and that appeal was listed for hearing today and tomorrow, 4 and 5 March 2009.

    3. At the outset Mr Martin Pointer QC and Mr Jonathan Cohen QC, representing respectively the wife and the husband, informed the court that the parties had reached a comprehensive agreement to settle not only the appeal but also pending or prospective applications for the variation of the order of 20 July 2006.

    4. The agreement reached between the parties invited the court to allow the appeal, set aside the order of 20 July 2006, and to make revised orders on the wife’s applications.

    5. A short disposal might have followed but for our concern that the judgment below had already been reported at [2008] 2 FCR 527 and at [2009] 1 FLR 2001 and was causing, or was likely to cause, difficulty for specialist practitioners and judges in this field of ancillary relief.”

    Thorpe LJ then went on to give a full judgment explaining why Charles J had fallen into error.

  6. Similarly, in the recent decision of Re S-W (Children) [2015] EWCA Civ 27 it was recorded at para 4 that:

    “Neither Liverpool City Council nor the children’s guardian seeks to uphold the orders made. All parties are therefore agreed that the appeal should be allowed and that the matter should be remitted to Her Honour Judge de Haas QC, the Designated Family Judge for Liverpool.”

  7. Three full judgments followed explaining why Judge Dodds had fallen into error. Again, this was the least he could have expected and a reasoned judgment would have the effect of preventing similar mistakes in the future.
  8. The reason why in neither of these cases the Court of Appeal exercised its powers to deal with the appeal on paper, without a hearing, and by consent pursuant to para 6.4 was that in each instance it involved a determination on the merits that the judge was wrong. Therefore in each case the circumstances fell outside para 6.4.
  9. The researches of counsel, undertaken after argument was concluded before me but before this judgment was handed down, have not revealed any case where a fully reasoned decision has been overturned on the merits by consent and without a judgment. This is not surprising.

In this case the appeal was against para 6 of my order, which reflected the terms of my judgment, that the package of care provided to Katherine does not amount to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights. That was the centrally, if not the only, relevant component of my judgment. It was its very ratio decidendi. By para 1 of the Court of Appeal order the appeal is allowed. That is plainly a determination on the merits. It could not be anything else. But such a determination on the merits does not fall within para 6.4.

I do rather agree with Mostyn J here. Whilst I respectfully think that he was wrong at first instance, he was wrong in a way that several very senior Judges (including two members of the Supreme Court) have agreed with.  It would have been helpful to have this issue put to bed. I happen to think that the Supreme Court have already done it, but as there appears to be judicial doubt, better to have that cleared up.

 

I also think that even if one accepts that Mostyn J was wrong and that KW’s liberty HAD been deprived, it is then a leap for the parties to agree an order between themselves that the Court of Appeal authorise such deprivation as being in KW’s best interests when frankly that particular argument has not been fully ventilated and litigated because the trial Judge ruled that on the facts he did not consider that she HAD been deprived of her liberty.

 

Where does that leave KW then?

  1. Even though the Court of Appeal appears to have taken a procedurally impermissible route, the rule of law depends on first instance judges complying scrupulously with decisions and orders from appellate courts. And so I must here, even if I happen to think that the order of the Court of Appeal is ultra vires. The allowing of the appeal should be construed as setting aside para 6 of my order, even if it does not actually say so. But does the order replace it with a declaration that Katherine is being deprived of her liberty? It does not explicitly say so, which is highly surprising. Further, para 2 of the order is phrased in highly ambiguous language. It says “to the extent that the restrictions in place pursuant to the care plan are a deprivation of KW’s liberty, such deprivation of KW’s liberty is hereby authorised.” The use of this conditional language suggests to me that Court of Appeal has not actually decided that this is a situation of state detention. What they are saying that if it is then it is authorised. In my judgment para 2 of the order does not amount to a declaration that Katherine is being deprived of her liberty.
  2. It therefore seems to me that we are back to square one with no-one knowing whether Katherine is, or is not, being detained by the state within the terms of Article 5. That issue will have to be decided at the next review hearing whether it is held under paras 3, 4 or 5 of the Court of Appeal order. Pursuant to para 6 I now direct that any review hearing will be conducted by me at an oral hearing and on the basis of full fresh evidence concerning Katherine’s circumstances. Until then Katherine’s status must be regarded as being in limbo.
  3. For the avoidance of any doubt it is my finding that the hearing ordered by para 5 of the Court of Appeal order is not a review of a determined situation of state detention but is, rather, a hearing de novo to determine if one exists.

 

Mostyn J goes further – having said that there has NOT been a decision that KW is being deprived of her liberty and there would have to be a hearing if anyone invites the Court to make such a finding, he goes on to drop this remarkable bombshell

  1. Further, it is my ruling that a hearing under paras 3 or 4 can only be triggered if the restrictive changes proposed amount to bodily restraint comparable to that which obtained in P v Cheshire West and Chester Council. Any restrictions short of that will amount to no more than arrangements for her care in her own home and would not, consistently with my previous judgments, amount to state detention. Therefore, in such circumstances there would be nothing to review under paras 3 and 4.
  2. It will be apparent from what I have written above that in the absence of a reasoned judgment from the Court of Appeal explaining why I was wrong I maintain firmly the correctness of my jurisprudential analysis in my principal decision as augmented in my Tower Hamlets decision. In this difficult and sensitive area, where people are being looked after in their own homes at the state’s expense, the law is now in a state of serious confusion.

 

So we seem to be in a position where if you go before Mostyn J, Rochdale v KW 2014 is good law, but if you go before another Judge, it may not be considered that way. The Court of Appeal sanctioned an order which had the effect of overturning the decision in Rochdale, but Mostyn J has ruled that it did not actually rule on the principle or the interpretation of the law.

That’s not really the way that precedent works. There are quite a few precedents that I don’t agree with and where I think the law has got it wrong, but it is the law and has to be followed until it is overturned or refined.  You have to be able to pick up a piece of case law and know whether it is a precedent which others may follow or if it is not. (Yes, sometimes, like H&R or even Cheshire West at CoA stage, the precedent which everyone follows is later determined to be wrong, but we all knew that those cases were being appealed)

The legal status of the principle in Rochdale v KW 2014 is not at all clear to me any longer. Mostyn J makes a compelling argument here that it remains binding on any Judge who is less senior than a High Court Judge. Equally, we know that the orders made did not stand following an appeal to the Court of Appeal. Is it law, or isn’t it?

We can’t surely have law that applies if you are before X Judge but not before Y Judge.

 

[I hope that I’ve been plain that whilst I disagreed with Mostyn J’s original call, I think he was right that there was a sufficient element of doubt that the Court of Appeal ought to have properly considered it and ruled on it. This was a decision that did not only affect the parties, but had a degree of public interest. It should not have been carved up by the parties, even if I think they were correct that the Judge had fallen into error on thinking the case could be distinguished from the principles in Cheshire West]

Defying the Court of Protection – is there such a thing as committal in Court of Protection?

 

 

MSAM v MMAM 2015 is a Court of Protection case tackling something for the first time.

 

In this case

 

http://www.bailii.org/ew/cases/EWCOP/2015/3.html

 

Mrs MMAM is 76. Her health deteriorated and she was living in parlous conditions at home. Following assessments, it was felt that she lacked capacity to make decisions for herself and was unable to remain in her own home.

 

The Court of Protection considered the case and made the following declarations on 20th February 2014 :-

 

“It is hereby declared pursuant to S.48 of the Mental Capacity Act 2005 that: it is lawful and in the First Respondents best interest to continue to reside and receive care at X residential home and any deprivation of her liberty occasioned by residing there is approved by the Court pursuant to S.4 A16 of the Mental Capacity Act 2005.”

 

 

On 1st April 2014, MMAM’s grandson attended the X residential home and removed her from that home, the manager of the home believing that he had no legal authority to prevent this.

 

 

It is important to note that she was then removed to Saudi Arabia, and also important to note that MMAM’s son (MSAM) had been a party to the Court of Protection proceedings and had not been challenging the plan at that hearing.

 

 

On the 1st April 2014 Mrs MMAM left the jurisdiction. I have been told she is currently residing in Saudi Arabia. On the morning 1st April the Second Respondent (Grandson) took Mrs MMAM from the X road residential home. He did so with the compliance of the manager who believed that he had no legal basis to prevent such a course. He was apparently told that Mrs MMAM was going with her grandson to the Saudi Arabian Embassy. She was taken there and her travel documents were provided which appeared to have enabled her to be booked on the very next available flight from London to Jeddah which left that evening. The grandson purports to outline the events of that day in his statement dated the 13th May. I say without hesitation that I found his account to be self serving and disingenuous. The description of what is said to be Mrs MMAM’s behaviour on that day bears absolutely no relationship to anything I have read about her in any other document. At paragraph 8 the grandson states

 

“We took a taxi to the Embassy arriving just before 10am, my grandmother, without entering security, had found the way to the meeting ahead of me. Once I had introduced her, I left her to discuss her affairs as I had understood from my father I should not participate in discussing the case with officials and her in any detail. A few hours went by, I was summoned and asked to accompany my grandmother to a place where food was given to her and then we were taken to a rest facility. Little later someone from the embassy came to take her and I was told to return home and that they would contact me as required.”

If that was indeed in any way accurate and Mrs MMAM had been left on her own at the Embassy, in my view, she would have been, on the basis of everything I have read, confused and probably rather frightened. The statement is entirely unconvincing. In the paragraphs that follow any aspiration to credibility is lost, if not abandoned.

 

“That night the manager from X road called me regarding my grandmother, I said she must still be with the embassy staff if she wasn’t back at X road. Someone from the Local Authority also contacted me, he asked me whether I felt she was safe or not? I told them I believe she was and would contact them if I heard anything. I then received a call to let me know that my grandmother was safe, ‘not to worry’ and I relayed the message to staff…. the next day I heard news that my grandmother was in Saudi Arabia.”

Later he states:

 

“The manner and speed of her repatriation has taken me by surprise. I do not want to speculate on the matter but I’m aware the situation has pleased my grandmother and family. Perhaps with the benefit of hindsight, the time constrained medical condition made the embassy action inevitable; though I do not believe any of the people aware of my grandmother’s appointment with the embassy expected it and I certainly did not.

‘I would like to thank the court for its measured consideration and on behalf of both myself and my grandmother I want to express our gratitude to Judge Batton, the staff of X Road and the doctors. I am eternally grateful to found, in all of them, definitely the living personification of the oath undertaken by each of them.”

The picture presented is a complete fabrication. This old, sick, largely incapacitous lady further burdened by an ‘abnormal belief system’ would simply not have been able to function effectively or autonomously in the way the grandson asserts. It is clear from the above passages that the grandson was acting entirely on his father’s instructions. That is the dynamic of their relationship which I have observed for myself in the courtroom at previous hearings. The reference to “the time constrained medical condition” sadly relates to the fact that Mrs MMAM is suffering from metastasised bowel cancer. The statement requires recasting in reality. Mr MASM and his son have plainly colluded to defeat the declaration made by this court. Mr MASM has done so notwithstanding that he acquiesced to the declaration made and drafted in the terms that it was. He was the applicant in this litigation. In my judgement he has acted with cynical disregard to the objectives of this process and, in the light of the declarations drawn, it must follow that his actions are entirely inconsistent with the best interests of this vulnerable and incapacitous woman, who is of course his own mother. The reasons for this planned deception are not immediately clear, but I draw from this history and from the actions of these two men that their motivation is likely family’s financial self-interest. It seems to me that if Mr MASM had genuinely believed that his mother’s interest did not lie in her remaining in the residential unit for the reasons Dr Arnold said then he had every opportunity to put those conclusions to the assay by cross examination. He chose not to do so despite being represented by counsel.

 

 

The legal question then arose :-

 

  1. Was this action a breach of the Court of Protection’s declaration and authorisation of Deprivation of Liberty?
  2. And if so, what are the sanctions for such a breach

 

 

Within the law relating to children, these sort of actions have been going on for a long time, and it is settled law that a breach of a Court order can lead to an application for committal for contempt of court, and to imprisonment if the breach can be proved to the criminal standard of proof. But this is new to Court of Protection cases.

 

Though this case raises important issues of law and practice it must be emphasised that conduct of the kind seen here is rare, indeed in my experience it is unprecedented. Many of the litigants who come before the Court of Protection are at a time of acute distress in their lives, as a cursory glance at the case law of this still fledgling court will show. The issues could not be more challenging, not infrequently they quite literally involve decisions relating to life and death. Inevitably, some litigants do not achieve their objectives neither wholly nor in part but they respect the process. More than once I have observed that the importance to a family of being heard in decisions of this magnitude matters almost as much as the outcome itself. Sometimes the medical and ethical issues raised are such that NHS Trusts seek the authorisation of the court to endorse or reject a particular course of action. The court ultimately gives its conclusion by declaration both in relation to lawfulness and best interests. The terms of these declarations often cannot and indeed should not seek to be too prescriptive.

 

Keehan J reviewed the powers of the Court of Protection to enforce its orders (and note the criticisms of the LA for its ‘supine’ response)

 

The Court of Protection’s powers of enforcement are extensive. The Court has in connection with its jurisdiction the same powers, rights and privileges and authority as the High Court (COPR 2007, R89) which means that it may find or commit to prison for contempt, grant injunctions where appropriate, summons witnesses when needed and order the production of evidence. (COPR 2007, part 21 makes further provision RR183-194). The relevant practice directions (PD21A) and “practice guidance notes” deal with Contempt of Court, Applications for enforcement may also be made; the CPR relating to third party debt orders and charging orders are applied as are the remaining rules of the Supreme Court 1965 in relation to enforcement of judgments and orders and writs of execution fieri facias (writs and warrants of control, post April 2014) All this said the Court of Protection jurisdiction is limited to the promotion of ‘the purposes of’ (my emphasis) the Mental Capacity Act 2005 (MCA) and, it follows, the appropriate order may be, from time to time, to direct the Deputy or some other person to take proceedings of a different kind in another court where the objectives fall outside the remit of the MCA.

 

Finally, of course, the court may direct penal notices to be attached to any order, warning the person of the consequences of disobedience to the order i.e. that it would be a contempt of court punishable by imprisonment and or a fine (or where relevant sequestration of assets). An application for committal of a person for contempt can be made to any judge of the Court of Protection by issuing an Application Notice stating the grounds of the application supported by affidavit in accordance with practice directions. (COPR 2007 makes additional provisions). In addition to this the court may make an order for committal on its own initiative against a person guilty of contempt of court which may include misbehaviour in the face of the court.

 

Initially the Local Authority considered that it had been comprehensively thwarted by Mr MASM’s unilateral actions. In a response which I considered to be supine, they advance no opposition to Mr MASM’s application to withdraw the proceedings. I was roundly critical of that reaction. Mrs MMAM had been rescued from squalor and neglect. I have been shown photographs of her previous living conditions. Her grandson, the man who negotiated what he calls her “repatriation” was living in the same house as his grandmother whilst her circumstances had reduced to the parlous conditions that I have described. In addition, Mrs MMAM lacked capacity in relation to medical, welfare and litigation decisions. Moreover she was in addition gravely ill physically. Local Authority’s simply have to absorb the extent of their responsibilities in these challenging cases. Vulnerable adults must be protected every bit as sedulously as vulnerable children. I emphasise that it is the safeguarding obligation that is similar- I do not suggest that vulnerable adults and children should be regarded as the same. Accordingly, I asked the Local Authority, the Official Solicitor and Mr MASM to reflect on the questions identified in paragraph 13 above.

I

 

 

Rather interestingly, both the LA and the family were submitting to the Court that the Court of Protection’s power in terms of making a declaration of best interests was a narrow one, limited to making a declaration of what was in MMAM’s best interests and not to making a prohibitive order.

 

If the declaration of interests was looked at in that way, the Court had not, and could not, make an order that prohibited the family removing MMAM and thus there was no order that could amount to a contempt of Court or a committal for contempt.

 

The Official Solicitor took a different view (and placed reliance on amongst others, a case called Long Wellesley, involving wardship and an MP removing his daughter from wardship without permission)

 

The Official Solicitor distils from these authorities the following propositions, namely that where:

 

  1. i) an application was issued in the Court of Protection specifically seeking the Court’s permission to remove P from the jurisdiction;

 

  1. ii) the court was seized of the matter;

 

iii) the court declared on an interim basis that it is in P’s best interests to live at a certain address within the jurisdiction;

 

  1. iv) it follows that a party, with knowledge of the application and court’s orders would commit a contempt of court by removing or organising for the removal of P from the jurisdiction without the court’s permission.

 

It is contended that this amounts to a contempt of court, even when no injunctive order has been made. In essence the argument is:

 

  1. i) the principles of wardship and parens patriae should apply to the Court of Protection, given the supervisory and protective nature of the Court of Protection’s jurisdiction, and P should be protected as would a ward of court and/or because;

 

  1. ii) such a person would be deliberately treating the declaratory order of the court as unworthy of notice.

 

 

 

So, the question is :- is a declaration of best interests something that if a person knows of it and thwarts it, a contempt of Court? Or is that only the case if the Court has the power to, and decides to, make an order that is prohibitive in nature and clear on the face of the order what a breach would be and what the consequences of breach might be.

 

That is, the difference between an order that says:-

 

It is in MMAM’s best interests to live at 22 Tupperware Court, Ker-Plunk

 

And

 

It is in MMAM’s best interests to live at 22 Tupperware Court, Ker-Plunk and her son and grandson shall not remove her from that property nor instruct others to do so. [and when sent to her son and grandson, the order also says “you must obey this order. If you do not, you may be sent to prison for contempt of court”]

 

You don’t often have cases in family law (or Court of Protection) where the litigation about the Spycatcher book is important, but in this one, it was an important part of the judicial reasoning as to what the status of a declaration of best interests was.

 

[It is a fascinating analysis, but beyond the scope of this piece – if you are interested in the fine detail, the judgment is well worth reading]

 

 

Drawing the strands of the case law, the legal framework and the agreed facts together, the following points emerge:-

 

  1. i) The Court made clear personal welfare decisions on behalf of an incapacitated woman which every party agreed to be in her best interests;

 

  1. ii) Breach of Court Orders even in the absence of a Penal Notice may nonetheless potentially be a contempt where there is a wanton disregard for the court’s decision;

 

iii) Some case law also suggests that in the exercise of the parens patriae any action hampering the objectives of the court is an interference with the administration of justice and therefore a criminal contempt see RE B(JA) (an infant) 1965 CH1112 at P1117:

 

‘any action which tends to hamper the court in carrying out its duty [to protects it’s ward] is an interference with the administration of justice and a criminal contempt’

 

 

If that third point applied to vulnerable adults, then a contempt of court could arise in circumstances where a person just hampered or interfered with the best interests decision, rather than in circumstances of the second point (wanton disregard for the Court’s decision)

 

The Official Solicitor was arguing in relation to that third point that in terms of safeguarding vulnerable adults and safeguarding children, the same principles applied in full. Keehan J was more guarded

 

 

Addressing the Official Solicitor’s argument in relation to actions hampering the exercise of the parens patriae I do not consider that the jurisdiction I am exercising here equates seamlessly with the exercise of the parens patriae or wardship jurisdiction in relation to children. Nor do I consider that Munby J intended to go so far in Re SA (supra). Whilst both jurisdictions require there to be a sedulous protection of the vulnerable, there is a paternalistic quality to wardship which does not easily equate to and is perhaps even inconsistent with the protection of the incapacitous adult, in respect of whom capacity will or may vary from day to day or on issue to issue. There is in addition, the obligation to promote a return to capacity wherever possible. The Court of Protection has a protective and supervisory role but wardship goes much further, it invests the judge with ultimate responsibility. The child becomes the judge’s ward. There is no parallel in the Court of Protection and it would be wrong, in my view, to rely on this now dated and limited case law (identified by Mr McKendrick) to permit this Court to reach for a power which is not specifically provided for in the comprehensive legislative framework of the Mental Capacity Act 2005.

 

The law in relation to children has also moved on from the landscape surveyed by Lord Atkinson in Scott v Scott [1913] AC 417, particularly since the inception of the Children Act 1989, drafted of course, with ECHR compatibility in mind. Lord Atkinson’s description of a ‘paternal and quasi domestic jurisdiction over the person and property of the wards’ has little resonance for practitioners for whom ‘family life’, protected under Article 8 of the ECHR, is evaluated by analysing competing rights and interests, where the autonomy of the child is also afforded great respect. Unsurprisingly and partly in response to the range of these principles the scope and ambit of wardship has reduced very considerably (Section 100 Children Act 1989 repealed Section 7 of the Family Law Reform Act 1969, the route by which the High Court had derived its power to place a ward of court in the care, or under the supervision of a Local Authority). Whilst Mr McKendrick is entirely right to draw this line of authority to my attention, the position in relation to wardship is, to my mind, largely anomalous, predicated as it is on the somewhat artificial premise that the court represents the Sovereign as parens patriae and cannot therefore be resolving contested issues as between the parties in an non adversarial arena (see Arlidge, Eady and Smith on contempt (4 edition) (Para 11-338). Mr McKendrick put much emphasis on the judgment of Munby J in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, para 84. In particular he referred me to par 84:

 

“As I have said, the court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established jurisdiction in relation to children. There is little, if any, practical difference between the types of orders that can be made in exercise of the two jurisdictions.”

It is important to emphasise that Munby J whilst emphasising the similarity of the two jurisdictions ‘for all practical purposes’ also notes the essentially different, indeed unique, nature of the wardship jurisdiction, later in the same paragraph:

 

“The main difference is that the court cannot make an adult a ward of court. So the particular status which wardship automatically confers on a child who is a ward of court – for example, the fact that a ward of court cannot marry or leave the jurisdiction without the consent of the court – has no parallel in the case of the adult jurisdiction. In the absence of express orders, the attributes or incidents of wardship do not attach to an adult.”

 

 

Keehan J decided that ultimately, the third point did not apply to vulnerable adults, and that despite the family’s conduct being entirely inimical to MMAM’s welfare and wellbeing, what was needed for a contempt and a committal remedy in Court of Protection cases was an order drawn in a prohibitive way with a penal notice. Keehan J decided that the Court of Protection had powers under s16 Mental Capacity Act 2005 to make such orders arising from their declaration of best interests

 

 

Ultimately, a declaration of best interests connotes the superlative or extreme quality of welfare options. It by no means follows automatically that an alternative course of action to that determined in the Declaration, is contrary to an individual’s welfare. There may, in simple terms, be a ‘second best’ option. For this reason, such a declaration cannot be of the same complexion as a Court Order. It lacks both the necessary clarity and fails to carry any element of mandatory imperative. I am ultimately not prepared to go as far as Mr McKendrick urges me to and elevate the remit of the Court of Protection, in its welfare decision making, to such a level that anything hampering the court in the exercise of its duty, or perpetrated in wanton defiance of its objectives is capable, without more, of being an interference with the administration of justice and therefore criminal contempt. Such an approach would it seems to me be entirely out of step with the development of our understanding of the importance of proper and fair process where the liberty of the individual is concerned. I would add that this has long been foreshadowed by the recognition that the necessary standard of proof in a application to commit is the criminal standard.

 

 

Moreover, though my order of 20th February 2015 was expressed to have been made pursuant to section 16, it was drafted in declaratory terms. As such, for the reasons I have set out above, it cannot, in my judgement, trigger contempt proceedings. There cannot be ‘defiance’ of a ‘declaration’ nor can there be an ‘enforcement’ of one. A declaration is ultimately no more than a formal, explicit statement or announcement. That said I emphasise that Mr MASM, in fact acted, through the agency of his son, in a way which was cynically contrary to his mother’s best interests. The course he took was not a ‘second best’ option but one entirely inimical to his mother’s welfare, physically, mentally and emotionally. He has frustrated the objectives of the litigation but he is not, as I ultimately find, acting in defiance of an order and therefore is not exposed to contempt proceedings.

 

 

 

As a result, there was no legal power, from the orders that were in placed, to lodge a committal notice or to commit the family to prison for their actions. All that Keehan J could do was to criticise them for their actions and order that they pay the costs of this hearing (which were probably considerable, given the amount of legal research that was needed – once people get into reading Spycatcher and 1831 cases about dubious MPs http://hansard.millbanksystems.com/lords/1831/jul/19/privilege-case-of-mr-long-wellesley not to mention the entire law of contempt, wardship and penal notices, the costs do mount up)

 

He also suggested that the LA should probably think very hard about whether it was sensible for the son to remain MMAM’s deputy with powers over her financial affairs.

 

As for more general guidance

 

 

Such guidance as I can give can only be limited:

 

  1. i) Many orders pursuant to Section 16 seem to me to be perfectly capable of being drafted in clear unequivocal and even, where appropriate, prescriptive language. This Section provides for the ‘making of orders’ as well as ‘taking decisions’ in relation to P’s personal welfare, property or affairs. Where the issues are highly specific or indeed capable of being drafted succinctly as an order they should be so, rather than as more nebulous declarations. Where a determination of the court is capable of being expressed with clarity there are many and obvious reasons why it should be so;

 

  1. ii) In cases which require that P, for whatever reason, reside at a particular place the parties and the court should always consider whether to reinforce that order, under Section 16, by a declaration, pursuant to Section 15, clarifying that it will be unlawful to remove P or to permit or facilitate removal other than by order of the court;

 

iii) In cases where the evidence suggests there may be potential for a party to disobey the order or frustrate the plans for P approved by the court as in his best interest, the Official Solicitor or Local Authority should consider inviting the court to seek undertakings from the relevant party. If there is a refusal to give undertakings then orders may be appropriate;

 

  1. iv) Where a potential breach is identified the Local Authority and/or the Official Solicitor should regard it as professional duty to bring the matter to the immediate attention to the court. This obligation is a facet of the requirement to act sedulously in the protection of the vulnerable;

 

  1. v) Thought must always be given to the objectives and proportionality of any committal proceedings see Re Whiting (supra).

Capacity to consent to sex – do you want a Hanc or a Hunc?

Mostyn J has just given a ruling in the Court of Protection  – London Borough of Tower Hamlets and TB 2014

http://www.bailii.org/ew/cases/EWCOP/2014/53.html

Within this case, Mostyn does two significant things.

 

The first is that he refines his own test for capacity to consent to sexual intercourse, and is much persuaded by Hedley J’s formulation.

Regular readers will be aware that the Court of Protection’s usual approach to capacity to consent to sexual intercourse is to look at three issues :-

 

(a) Understanding of the mechanics

(b) Understanding of the health risks

(c) Understanding of the risk of pregnancy.

 

Mostyn J says that he has changed his mind as to whether that is the right test

Although I am not going so far as figuratively to hold my hand in the flames like Cranmer I have had cause to reconsider my previous opinion.

 

Before Mostyn J, legal argument took place that bears some resemblance to that discussion in Gremlins 2 about whether a Mogwai is fed after midnight if he is on a plane crossing the international date line…

  1. I deal first with the pregnancy element. In A Local Authority v TZ [2013] EWCOP 2322 Baker J concluded at para 31 that in the case of a person clearly established to be homosexual it is ordinarily unnecessary to establish that he or she has an understanding or awareness that sexual activity between a man and a woman may result in pregnancy. In this case Mr McKendrick argues that because TB has had an IUD inserted she is in an equivalent position. The argument became increasingly far-fetched. We discussed a man who has had a vasectomy. A woman who is beyond childbearing. A man wearing a condom. Mr McGuire QC rightly captured the unreality of this debate in his final submissions when he said:

    “But following this link produces nonsensical results. What if a woman happens to have fertility issues? Or is already pregnant? Or is beyond childbearing age? Would knowledge of this link be irrelevant for a man? “

 

And as a result, Mostyn J decided that it would be best for the third part of the test to simply form part of the second part (health issues)

I have come to the conclusion that the third element of risk of pregnancy should not be a separate one. Rather it should be subsumed into the second which should simply be expressed as: “that there are health risks involved”. All sexual activity has some health risks. The most obvious ones are pregnancy or STDs. But over-robust sexual activity can cause wounding or bruising, external or internal. Any sexual activity can cause psychological harm. A simple criterion as I have suggested would resolve the dilemma I expressed in para 43 of D Borough Council v AB [2011] EWCOP 101, which on reflection came perilously close to introducing a quoad hanc dimension when I had been at pains to repudiate that.

 

If you are wondering what quoad hanc means   [i.e you are not my regular commentor Andrew, or David Burrows] it raises its head in this judgment here, where Mostyn J raises a complaint that a formulation is unnecessarily overcomplicated and goes on to explain it in Latin.   (I am biting my tongue here)

The first thing that the cases have decided is that the test for capacity to consent to sexual relationships is, to use rather laboured language, general and issue specific, rather than person or event specific: see IM v LM [2014] EWCA Civ 37 at para 79. In canonical language the incapacity must be quoad hunc not quoad hanc, in contrast to the position under section 12(a) Matrimonial Causes Act 1973 where the incapacity to consummate may be on either basis[2].

Quoad Hanc is where someone is not able to have sex with a particular individual, and Quoad Hunc is where they are not able to have sex with anyone.  i.e the difference between not being able to have sex with Hank (perhaps because he has body odour) and not being able to have sex even with a hunk (because you just can’t have sex with anyone)

 

[I am sure Andrew and David will be able to put it better than I have]

Having digressed a bit, is the capacity to consent to sexual intercourse test now just

(a) Understanding of the mechanics, and

(b) Understanding of the health risks  ?

 

Well, not so fast there Hank.

Mostyn J reminds himself and us that he had previously been asked to consider whether the understanding of the ability to say “yes” or “no” to sex should be a factor, and had rejected this. He has now changed his mind, and gives credit to Hedley J in relation to this

  1. I now turn to the question whether the relevant information should include as a separate element an awareness that lawful sex requires the consent of all parties and that that consent can be withdrawn at any time. In my previous decision of D Borough Council v AB I accepted at para 35 that I should not conflate the capacity to consent to sex and the exercise of that capacity. Therefore I rejected Dr Hall’s third head of capacity.
  2. In this case the OS agrees that being able to say yes or no to sexual relations is part of the weighing process under section 3(1)(c), and that this is made explicit by the terms of section 3(4)(a). Notwithstanding this concession Ms Greaney disputes that it should be an independent head of awareness because to do so would conflate capacity with the necessary exercise of free will. She argues that consent is the product of capacity and the exercise of free will.
  3. However, in A Local Authority v H [2012] EWHC 49 (COP) Hedley J with his customary erudition, sensitivity, lucidity and eloquence convincingly persuades me that I was wrong then, and that the OS is wrong now. At para 25 he said this:

    “And so one turns to the emotional component. It remains in my view an important, some might argue the most important, component; certainly it is the source of the greatest damage when sexual relations are abused. The act of intercourse is often understood as having an element of self-giving qualitatively different from any other human contact. Nevertheless, the challenge remains: can it be articulated into a workable test? Again I have thought long and hard about this and acknowledge the difficulty inherent in the task. In my judgment one can do no more than this: does the person whose capacity is in question understand that they do have a choice and that they can refuse? That seems to me an important aspect of capacity and is as far as it is really possible to go over and above an understanding of the physical component. “

  4. In my judgment this simply cannot be gainsaid. It was accepted by everyone in this case that sex between humans must involve more than mere animalistic coupling. It is psychologically a big deal, to use the vernacular. Hedley J’s formulation captures perfectly why and how that extra ingredient should be defined.
  5. Therefore I conclude that when determining the question of sexual capacity under the MCA the relevant information as referred to in section 3(1)(a) comprises an awareness of the following elements on the part of P:

    i) the mechanics of the act; and

    ii) that there are health risks involved; and

    iii) that he or she has a choice and can refuse.

    I would add that the excellent witness Dr Joyce was of the firm view that this third element was very important. I would also suggest, with all due humility, that the test as formulated by me has the merit of simplicity.

I have to say that for my part, I prefer this revised three part test.  I did have to quickly check whether it clashes with the Court of Appeal in Re IM v LM 2014 and I don’t believe that it does. So this is now the new test to be used.

 

[In the instant case, the woman understood the mechanics, understood that she enjoyed sex but did not understand that she could say no. Her husband for religious reasons believed that it was her duty to have sex with him on request – her general level of functioning was that of an 8 year old. Mostyn J held that she did not have capacity to consent to sex on the basis that she had no understanding of her ability to say no]

 

The second issue of import in the judgment was that there was a Deprivation of Liberty Element – this woman wanted to go back to her husband and was being prevented from doing so. In part because he intended to have sex with her about twice a week and she lacked capacity to consent.

That allowed Mostyn J to revisit his decision in Rotherham. And if you think that he has softened on that, as he has changed his mind on the capacity test, you are wrong.

  1. My decision of Rochdale Metropolitan Borough Council v KW [2014] EWCOP 45 has aroused a certain amount of criticism. For example, Sarah Lambert, the head of policy for the National Autistic Society has stated that:

    “This decision appears to directly contravene the Supreme Court’s ruling that liberty must mean the same for all, regardless of disability.

    Any move to revisit or unpick this definition would be a huge step back. NAS is deeply concerned that this decision will create avoidable confusion and uncertainty among health and social care professionals, potentially undermining essential protections for people with autism.”

  2. The appeal in Rochdale Metropolitan Borough Council v KW will be heard by the Court of Appeal on 4 or 5 February 2015.
  3. If nothing else, I think it is important that I meet the criticism that I have sought to encroach on essential protections for disabled people, and amplify my reasoning.
  4. In para 17 of my decision I said this:

    “It is clear that the driving theme of the majority opinions is a denunciation of any form of discrimination against the disabled. With that sentiment I naturally wholeheartedly agree. Discrimination is found where like cases are not treated alike. However, when making Lord Kerr’s comparison you do not have two like cases. You are comparing, on the one hand, a case where an 18 year old does not need protection and, on the other, a case where the 18 year old does. They are fundamentally dissimilar. The dissimilarity justifies differential treatment in the nature of protective measures. For me, it is simply impossible to see how such protective measures can linguistically be characterised as a “deprivation of liberty”. The protected person is, as Mill says, merely “in a state to require being taken care of by others, [and] must be protected against their own actions as well as against external injury”. And nothing more than that. In fact it seems to me to be an implementation of the right to security found in Article 5. “

  5. The suggestion that “the dissimilarity justifies differential treatment in the nature of protective measures” was not a personal idiosyncrasy. It is justified by high authority

Mostyn J goes on to set out those authorities, but I will pass over those – they are available in the judgment if you wish to see them.

57…The state is obliged to secure the human dignity of the disabled by recognising that “their situation is significantly different from that of the able-bodied”. Thus measures should be taken “to ameliorate and compensate for [those] disabilities.”

  1. But to characterise those measures as state detention is to my mind unreal. I referred to the historical context in which Article 5 of the ECHR 1950 came to be formulated. It followed the Universal Declaration of Human Rights of 10 December 1948 which in its preamble referred to “the disregard and contempt for human rights [which] have resulted in barbarous acts which have outraged the conscience of mankind”; which in article 3 guaranteed liberty; and which in article 9 proscribed “arbitrary arrest, detention or exile.” It was aimed at the midnight knock on the door; the sudden disappearance; the prolonged detention. Article 5 was not aimed at Katherine, seriously physically and mentally disabled, who is living in her own home and cared for round the clock by carers paid for by an organ of the state.
  2. In this case TB will not be cared for at a place which she understands to be her home. Further, she has the motor functions to achieve a departure in a meaningful sense. She will be monitored round the clock and were she to leave to try to go “home” she would be brought back. Her situation is therefore very different to Katherine’s, and the acid test is met. Although I personally cannot see that her situation amounts to state detention in any sense other than by reference to the term of art devised by the majority in the Supreme Court, I must loyally follow that decision. I therefore declare that TB’s care regime does involve detention under Article 5. Accordingly there must be at least six-monthly reviews by this Court, no doubt at some considerable expense to the public purse.
  3. At para 1 of my decision in Rochdale Metropolitan Borough Council v KW I referred to the very serious resource implications to local authorities and the state generally if periodical court reviews are required in such cases. Notwithstanding the arrival of the streamlined procedure recently promulgated by the Court of Protection Practice Direction 10AA there will still be tens if not hundreds of thousands of such cases and hundreds of thousands if not millions of documents to be processed. The streamlined procedure itself requires the deployment of much man and womanpower in order to identify, monitor and process the cases. Plainly all this will cost huge sums, sums which I would respectfully suggest are better spent on the front line rather than on lawyers

 

There’s some force in that – the Supreme Court have, in setting out the law, put many thousands of people in living circumstances which now amount to a breach of article 5, and the Court of Protection is going to be swamped with cases. Mostyn J has taken a pragmatic line, and we wait to see if the Court of Appeal think the same.  For my part, I think that the Supreme Court captured this point and the fact that on the ground it has enormous consequences for very many cases doesn’t detract from the principle.  The Supreme Court have explained what the test is, and the fact that it is going to have massive repercussions can only go so far.

 

Follow

Get every new post delivered to your Inbox.

Join 3,575 other followers