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Have we just given up on the notion of the Supreme Court being supreme?

 

After yesterday’s CM v Blackburn in which the Court of Appeal sidle up to the notion that the Supreme Court weren’t formulating new law in Re B, we now have the High Court in the form of Mostyn J just outright quibbling with their decision in Cheshire West.

 

In Rochdale v KW 2014 http://www.bailii.org/ew/cases/EWCOP/2014/45.html

 

Mostyn J was sitting in the Court of Protection and was faced with an application as to whether KW’s liberty was being deprived and if so ought the Court to sanction it.

  1. Katherine is aged 52. She is severely mentally incapacitated, to use the new language of the MCA; she is of “unsound mind” to use the old language of Article 5. She suffered brain damage while undergoing surgery to correct arteriovenous malformation in 1996[1], when aged only 34. This resulted in a subarachnoid haemorrhage and long term brain damage. She was left with cognitive and mental health problems, epilepsy and physical disability. She was discharged from hospital into a rehabilitation unit and thence to her own home, a bungalow in Middleton, with 24/7 support.
  2. In April 2013 Katherine was admitted to hospital. Her mental health had declined. In May 2013 she was transferred to a psychiatric ward, and later to another hospital. On 28 June 2013 she was discharged and transferred to a care home where she stayed until 14 April 2014, when she returned home. For appreciable periods between 28 June 2013 and 14 April 2014 Katherine’s confinement to the care home was not authorised under the terms of the MCA. On 26 June 2014 Katherine, acting by her litigation friend, made a claim for damages under Articles 5 and 8 of the Convention. On any view she had suffered an unlawful deprivation of liberty during those periods when her confinement was not authorised under the MCA. Her claim has been settled with modest compensation and a written apology. I approve the terms of the settlement.
  3. Physically, Katherine is just ambulant with the use of a wheeled Zimmer frame. Mentally, she is trapped in the past. She believes it is 1996 and that she is living at her old home with her three small children (who are now all adult). Her delusions are very powerful and she has a tendency to try to wander off in order to find her small children. Her present home is held under a tenancy from a Housing Association. The arrangement entails the presence of carers 24/7. They attend to her every need in an effort to make her life as normal as possible. If she tries to wander off she will be brought back. The weekly cost of the arrangement is £1,468.04. Of this £932.52 is paid by Rochdale and £535.52 by the local NHS Clinical Commissioning Group (“CCG”).

 

We have here therefore

(a) a person who lacks capacity

(b) a person who is being cared for by the State  (albeit in the setting of a foster ‘home’ rather than in residential care)

(c) a person who tries to leave that accommodation and when she tries is prevented from doing so, and if she gets out is brought back

 

On the basis of the Supreme Court’s ruling in Cheshire West, this appears to be a deprivation of liberty, but Mostyn J felt otherwise.

I find it impossible to conceive that the best interests arrangement for Katherine, in her own home, provided by an independent contractor, but devised and paid for by Rochdale and CCG, amounts to a deprivation of liberty within Article 5. If her family had money and had devised and paid for the very same arrangement this could not be a situation of deprivation of liberty. But because they are devised and paid for by organs of the state they are said so to be, and the whole panoply of authorisation and review required by Article 5 (and its explications) is brought into play. In my opinion this is arbitrary, arguably irrational, and a league away from the intentions of the framers of the Convention.

 

Mostyn J goes on to conduct a philosophical exercise on the nature of liberty  (I can highly recommend Alex Ruck’s blog on the judgment – he says everything that I wanted to say, and far more elegantly http://www.mentalcapacitylawandpolicy.org.uk/js-mill-strikes-back-mostyn-j-takes-on-the-supreme-court/)

 

It is plain that Mostyn J is aware that he is bound by Cheshire West, although making it plain that he doesn’t himself agree with the Supreme Court, but he attempts to distinguish the case (in ways that frankly, one might consider the Supreme Court had already ruled on), concluding that this particular issue needs to be looked at again by the Supreme Court and granting leave to appeal in order to facilitate that.

  1. The opinions of the majority are binding on me and I must loyally follow them even if I personally agree with the view of Parker J and the Court of Appeal in MIG and MEG; with the Court of Appeal in Cheshire West; and with the minority in the Supreme Court[2]. There is a similarity between this case and that of MIG inasmuch as both involve so called constraints on an incapacitated person living at home. In determining the factual question I cannot take into account the benign motives of Rochdale in providing the care arrangement or of Katherine’s contentment with it. Nor can I take into account the designed normality of the arrangement in Katherine’s own home.
  2. As I have shown, a key element of the objective test of confinement is whether the person is “free to leave”. This is part of the acid test. “Free to leave” does not just mean wandering out of the front door. It means “leaving in the sense of removing [herself] permanently in order to live where and with whom [she] chooses” (see JE v DE and Surrey County Council [2006] EWHC 3459 (Fam)[2007] 2 FLR 1150 per Munby J at para 115, implicitly approved in the Supreme Court at para 40). This is the required sense of the second part of the acid test.
  3. I do not find the test of the Strasbourg court in HL v United Kingdom 40 EHRR 761, at para 91, where it refers to the “concrete situation” of the protected person, as being of much assistance. The adjective “concrete” means that that I should look for an actual substance or thing rather than for an abstract quality. That is to state the obvious. Plainly, I will be looking only at Katherine’s actual personal circumstances and not at any abstractions.
  4. Katherine’s ambulatory functions are very poor and are deteriorating. Soon she may not have the motor skills to walk even with her frame. If she becomes house-bound or bed-ridden it must follow that her deprivation of liberty just dissolves. It is often said that one stress-tests a proposition with some more extreme facts. Imagine a man in hospital in a coma. Imagine that such a man has no relations demanding to take him away. Literally, he is not “free to leave”. Literally, he is under continuous supervision. Is he in a situation of deprivation of liberty? Surely not. So if Katherine cannot realistically leave in the sense described above then it must follow that the second part of the acid test is not satisfied.
  5. By contrast MIG was a young woman with full motor functions, notwithstanding her problems with her sight and hearing. She had the physical capacity to leave in the sense described. She had sufficient mental capacity to make the decision to leave, in the sense described. If she tried she would be stopped. Therefore, it can be seen that in her case both parts of the acid test was satisfied.
  6. In my judgment there is a very great difference between the underlying facts of MIG’s case and of this case notwithstanding that in both cases the protected person lives at home.
  7. It is my primary factual finding that in Katherine’s case the second part of the acid test is not satisfied. She is not in any realistic way being constrained from exercising the freedom to leave, in the required sense, for the essential reason that she does not have the physical or mental ability to exercise that freedom.
  8. I am not suggesting, of course, that it is impossible for a person ever to be deprived of his liberty by confinement in his or her own home. In the field of criminal law this happens all the time. Bail conditions, or the terms of a release from prison on licence, routinely provide for this. However, I am of the view that for the plenitude of cases such as this, where a person, often elderly, who is both physically and mentally disabled to a severe extent, is being looked after in her own home, and where the arrangements happen to be made, and paid for, by a local authority, rather than by the person’s own family and paid for from her own funds, or from funds provided by members of her family[3], Article 5 is simply not engaged.

 

 

For me, Alex Ruck puts it perfectly in his analysis

 

Mostyn J’s conception of freedom to leave is fundamentally predicated upon a concept that of liberty that is dependent upon a person’s ability to exercise that right, either themselves or by another. A person who is severely physically disabled – and therefore house-bound – could not, on Mostyn J’s analysis, be considered to be deprived of their liberty. It is, however, extremely difficult to square that analysis with the conclusion of Lady Hale (with whom Lord Kerr agreed) that liberty must mean the same for all, regardless of whether they are mentally or physically disabled (see the discussion at paragraphs 33-36).

 

We are once again getting back to a conflation of two questions – whether someone is deprived of their liberty, with whether it is justified. Katherine’s circumstances almost certainly make any deprivation justifiable, but to say that her liberty is not deprived as a result of her physical and mental difficulties is at right angles to the decision of the Supreme Court in Cheshire West.

 

We shall see what they say, if the case finally gets to them, but given how long we waited for Cheshire West to be resolved, the prospect of further doubt in this area is not appealing.

{I myself like to ‘stress-test’ deprivation of liberty cases by looking back to L and Bournewood – I’m not sure L would be helped by this sort of formulation}

Cheshire West fallout

There’s an excellent piece of investigative work by Community Care about the escalation in the number of Deprivation of Liberty cases since the Supreme Court made a substantial change to the law in Cheshire West.

 

If you have a chance to read the full thing, I heartily recommend it.  (the remainder of this article is my extraction and citation of what I considered to be the main issues)

http://www.communitycare.co.uk/2014/10/01/50-deprivation-liberty-safeguards-cases-breaching-legal-timescales/

 

Half of Deprivation of Liberty Safeguards (Dols) cases are breaching legal timescales for completion after a landmark Supreme Court ruling in March triggered a nine-fold rise in monthly referrals to councils, a Community Care investigation has found

 

In 2013-14 councils received 8,455 requests for Dols assessments; since April this year they’ve already had 32,988 referrals. The figures mean average monthly referrals have risen from 713 in 2013-14 to 6,643 in 2014-15. The effect of the dramatic rise in cases is clear. Last year 2.2% of cases breached timescales; so far this year 50% of cases were not completed in time.

 

Councils have also seen more legal challenges to deprivations of liberty and one local authority has sent a ‘systemic abuse alert’ to an adult safeguarding board warning that it could not meet the ‘Supreme Court challenge’ due to a shortage of resources.

 

 

The court ruling has also intensified a shortage of best interests assessors (BIAs), whose role is to determine whether a person is, or will be, deprived of their liberty and, if so, and whether this is in the person’s best interests. Councils are scrambling to train up more social workers as BIAs in a bid to boost assessor numbers, but many training courses are oversubscribed and, even if a place is secured, training can take months.

 

We found that the shortage of trained staff in councils means local authorities have already spent £1.4m on independent BIAs in 2014-15. That’s almost three times the £550,000 spent across 12 months in 2013-14.

 

 

  • Legal challenges are rising: In the first five months of 2014-15 local authorities had 61 legal challenges brought over deprivation of liberty cases. In the 12 months of 2013-14 the councils had received a total of 49 legal challenges.

 

  • Safeguarding concerns have been raised: Cornwall council raised a ‘systemic abuse’ alert with the local safeguarding adults board over the council’s inability to safeguard people under Dols, due to a lack of resources to meet the post ‘Supreme Court challenge’. The council said it wanted to ensure there was independent scrutiny of its response to the judgement. The councils said its “principal difficulty is one of resources and the availability of suitably trained staff to implement the DoLS for the greatly increased numbers. The council referred its concerns into the adult safeguarding process while it took urgent steps to address problem.”

 

  • Stacks of referrals have been held back: Evidence from council reports shows that the referrals received so far are only likely to be a fraction of those that could meet the Supreme Court test as care homes and hospitals are delaying applications. In some cases, council reports say this is due to them ‘ignoring’ or not understanding the implication of the Supreme Court judgement. In other cases it is deliberate:

We found one example of a council agreeing with a care provider to delay sending in 30 referrals to help with ‘backlog avoidance’.

In a second case, a council report showed that some homes had delayed in sending in referrals as they were ‘sympathetic’ to the pressures on the local authority. In the report, the council’s Dols lead said that this was often happening ‘to the detriment’ of the person. The report shows that the Dols lead contacted the homes and told them to make the applications.

◦A third council report we obtained showed that a local acute hospital had still to send in applications. The hospital had conducted an initial scoping exercise and identified a potential 35,000 referrals. This alone would lead to the Dols team facing a 350-fold increase in cases, the report showed.

 

Bloody hell.

 

Information drawn from the Health and Social Care Information Centre  from 130 of 152 councils make the point even more vividly. http://www.hscic.gov.uk/catalogue/PUB15475

A 600% increase in monthly referrals is a terrifying amount. There is simply no way that social workers, local authority lawyers, best interest assessors, lawyers for families, the Official Solicitor or the Courts can cope with that sort of increase.

 

The councils received 21,600 Dols applications from April to June 2014, compared with 12,400 in the whole of 2013-14, a 597% increase in monthly referrals;

  • of these, 51% were authorised, 12% were not authorised, and 36% had not been withdrawn or not signed off by the council as of September 2014.

 

(I’m really impressed with the work that Community Care have done on this, and I hope that everyone in the field reads their piece, hence my bigging it up here)

Somerset v MK – conduct of a Local Authority and deprivation of liberty

 

 

This is a Court of Protection case, involving a 19 year old “P”.

 

Somerset v MK – Court of Protection,Deprivation of Liberty ,Best Interests Decisions ,Conduct of a Local Authority 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/B25.html

 

P is aged 19, she was born on 10/10/1994 and has severe learning disabilities and autism spectrum disorder. She has almost no verbal capacity and communicates through gestures and via PECS

 

In May 2013, P presented with bruising on her chest and was examined by a paediatrician

 

His report (G25) said: “the bruising is felt to be comparable with a blow / blows to P’s anterior chest with a significant force or fall onto an object… this would be an unusual injury pattern to have been self-inflicted but if this was the case then it would be expected that such self-harm, which would have been demonstrably significant and painful, would have been witnessed”.

 

 

Sadly, when considering how those bruises came about, nobody seemed to have grasped the significance of the report from the school two days earlier of P being observed to hit herself hard and repeatedly on the chest.

 

The Judge notes,with a degree of acidity, that it seemed to only be when the papers in the case were sent by the Local Authority to leading counsel that the two matters were linked and the Local Authority ceased to seek a finding that P had been injured by her parents.

 

The belief that P was not safe with her parents was what had led the LA to remove her and deprive her of her liberty, and hence to make the application authorising that deprivation of liberty. Initially it had been for two weeks respite, but that stretched on and on, to over a year.

 

16. In addition the LA changed its position on the factual issues so that it was unlikely to pursue factual findings with regard to the injuries sustained by P. Previously the chest bruising seemed to form a vital part of the LA case and one might, for instance, have expected findings being sought about a perpetrator or perpetrators and failure to protect but now it was clear that no such findings were being sought. It is also clear from the document that the significance of the reported hitting by P of herself in the chest on 21/5/13 had been realised (the class trip evidence had not yet been identified). I suspect the realisation of the significance of this evidence in any Finding of Fact hearing and the instruction of very experienced leading and junior counsel just prior to this document being filed are not entirely coincidental.

 

Given that the reason for keeping P apart from her family had been the suspicion that they had injured her, when the truth is that the bruising was explained by the school’s observations of her hitting herself in the very same place, the LA were in a very tough spot.

 

14. On the 26th March the LA filed its position statement dated 25/3/14 to be found at A12 to 15. In this document the LA conceded that P had been deprived of her liberty (it contended that there may have been some doubt about that before but not after the Supreme Court ruling in the Cheshire West case).

 

15. In addition the LA accepted that there had been a period when they had unlawfully deprived P of her liberty contrary to Article 5 ECHR. It had not been authorised by the Mental Capacity Act 2005 and was not therefore “a procedure prescribed by law”. This it accepted continued from 8th June 2013 (the date when the respite care was supposed to have ended and 28th November 2013 when the first authorisation was obtained. It goes on to concede that P’s deprivation of liberty and the loss of her society to her family was a breach of both P and M’s Article 8 rights and not in accordance with the law.

 

 

If they had stuck with the apology and worked up a rehab plan without delay, things probably would have gone better for them, but instead they decided that it was in P’s best interests for her NOT to return to the family home but to be in a long term placement at a care home.

 

17. The LA make it clear that the best interests decision as to what should happen from now on to P is one to be considered purely in terms of her present and future welfare needs. The document indicates that the LA wish to apologise to the family for its “procedurally inappropriate and unlawful” actions. It still proposes that the best solution is for P to be in LA care and accommodation (up to April 2014 it had suggested a long term placement at a care home in Bournemouth was appropriate). Now it accepts a new social worker should be involved and make another best interests assessment and the case should be returned to court for an interim consideration of where P should be.

 

 

As part of that, the LA had drawn up a schedule of findings of fact on other matters. It is significant to read what the Official Solicitor had to say about that schedule

“…the reliance on this long and historical schedule to paint a damaging picture of this family is unnecessary and disproportionate. It does not build bridges.”

 

 

The Judge agreed with that, and also in conclusion said this:-

 

the adversarial nature of the argument and cross-examination needed to advance the schedule robbed the LA’s apology for its conduct of at least some of it credibility, no matter how carefully and dextrously leading counsel for the LA put the case.

 

 

{It is rather difficult to look sincere in your apology when you’re also trying to stick the boot in at the same time}

 

25. The siren song behind the argument is if I make the findings of fact and apply them and all the other relevant considerations to the case I will be driven to find that P’s best interests will be served by her not returning home but as far as the LA are concerned that is a matter for the judge. An outside observer might ask himself the question if everyone including the independent social worker and the OS for P are agreed on a return home and the LA are neutral why has it taken 9 days to litigate the case? However the reality is that the past conduct of the family and the LA are the context for the best interests decision and also the components of the breach of the ECHR application and thus needed to be carefully examined.

 

 

The Court did not make the findings that the LA sought, including one that the Judge said was “unprovable and irrelevant at the same time”   (a difficult combination to achieve)

 

What makes this case potentially important is the evidence of the senior manager of the LA, who the Judge remarked a number of times had the principal role of being there to fall on his sword.

 

 

The senior social work manager is a highly intelligent and senior social worker but he is essentially there to fall on his sword for the LA failings and on the best interests issue does not add anything to the LA case

 

However,

 

 

57…He was in my view a highly intelligent, experienced and well-intentioned manager and social worker who was, having observed him not just when he was giving evidence but when he was listening to evidence, genuinely shocked at some points by what he heard. At the start of his evidence he said: “I think the crucial aspect relying on what I have heard in court is a fundamental misunderstanding of the role of adult social care and how to go about their jobs“.

 

[Oh. My. God]

 

58.  He (and I) did not question the motivation of LA to do the right thing, as they saw it, for P but he described the conduct of social workers on the ground as misguided. There was no understanding of the law in this area and that extended to the LA lawyers as well as social workers. He accepted when I asked him that not only were individual actions wrong but the philosophy behind those actions was wrong as well. In particular he said that practice was inadequate when consulting with the family: “I have to ensure the staff who work in this area understand their role and I clearly failed in my responsibilities, failure as team manager, they failed to seek or take advice given the complex nature of the case. The beliefs and intentions of what people did was misguided in its approach”. He was very critical of the delay from September when the police indicated they were not taking their investigation of bruising any further to issuing proceedings which seemed to him to be time taken to, “put a good case together, which was not what we got”. He also highlighted the failure of the LA in not having a lawyer who specialised in adult social care.

 

[Oh. My. Flipping. God]

 

He was not wrong. The Judge analysed the conduct of the LA very carefully.

 

67. The police finally finished their investigation in September 2013, it was inconclusive. The LA were now in a position where prior to May they had not taken any action and the bruising in May could not be used to substantiate a retention of P. At the same time they had a very distressed young woman on their hands to whom medication was now being or about to be administered.

 

 68. Around about the time of the move to SASS people at last start to show alarm at the legal position. Why had they not appointed an IMCA (e-mails at O1169): “I am really not clear how we are holding P at Selwyn”, a colleague to Mr M 22/11/13, later that day in another e-mail should they not have gone to the CoP? Mr M on the same day: “P is still under safeguarding procedures”. One asks the questions why does he think that now the investigation has been over for two months and how does he think that justifies holding her?

 

 69. There had been other meetings the family should have been invited to but were not on 5/9/13 and on 12/11/13. The first of these meetings comprises of a massive amount of criticism being levelled at M and Mr E in particular most of which is either hearsay or from an anonymous source who is quoted at length but seems to be highly unreliable and possibly had some kind of personal agenda.

 

 70. At the meeting of 17/12/13 it was explained according to the minutes at J35 that the family were invited to discuss plans about P’s future and express their views. In fact it is clear that was not the reason they were invited at all. Far from a change of heart and an attempt to communicate the reason is clear. It was felt by Mr M on advice from the LA lawyers that: “The COP might pick up that no ’round table’ meeting has been held and this might disadvantage us during the hearing” (see the bundle at part O page1086).

 

[Oh. My. Martha. Flipping. God]

 

 

The Judge concludes

 

74. This is already a very long judgment and so I do not propose to go on reviewing the LA’s conduct further. The overall summing up by the senior social work manager was: “There has been a corporate failure and a failure of those on the ground to realise that they are out of their depth, most worrying was that they looked more sure about what they were doing than they ought, … it’s going to be difficult to re-establish that trust (with the family) if it’s rebuilt it is going to be with good practice”.” Mr Justice Ryder (as he then was) in a leading authority on FII cautioned social workers in child care cases not to decide what the picture was and then make the facts fit the picture, it seems to me that is what happened here.

 

 

Undertaking the best interests analysis, it is a demolition and as one-sided as a Harlem Globetrotters match

 

The balance sheet therefore shows the following –

 

 

In favour of P returning home

 

i Her wishes

 ii The wishes of her family

 

iii.             The right to a family life of P and her family

 iv The fact that at home she may not be subject to any deprivation of liberty and therefore this will be the least restrictive option

 v Concerns about the bruising have been abandoned as a reason for her not going home

 vi The OS supports return

 

vii.           The independent social work reporter supports return

 

viii.         I have found nothing in the Schedule of Facts to prevent return

 ix I have found there will be a degree of co-operation between the principal family members and the LA.

 

 

For a placement in a specialist home

 

 i The view of the LA that P will best reach her full potential in terms of her development, social life, communication skills and so on in a specialist home.

 

 

 

P therefore returned home and the Court found that there had been breaches by the Local Authority of her article 8 right to private and family life

 

76. There is no question here that P was removed unlawfully from her family, she went into Selwyn for respite care and it is from the date of her mother’s return from holiday that the breach flows. I further accept that the LA had a duty to investigate the bruising but I find that a competently conducted investigation would have swiftly come to the conclusion that no or no sufficient evidence existed to be able to conclude P’s safety was at risk by returning her home. This conclusion should have been reached within a week or so after the family asked for her back. If the LA came to a different conclusion, as they did, they should have applied to the CoP by early June for a hearing. Not doing so is a further breach. Having not done so they should have told the family they could make an application, not doing that is a further breach. After the Police investigation ended in September P should again have been returned but was not nor was an application made to CoP as it should have been. The limitations and conditions placed on contact between the family and P constitute another breach.

               

 

I make that five breaches

 

78. These findings illustrate a blatant disregard of the process of the MCA and a failure to respect the rights of both P and her family under the ECHR. In fact it seems to me that it is worse than that, because here the workers on the ground did not just disregard the process of the MCA they did not know what the process was and no one higher up the structure seems to have advised them correctly about it.

 

 

 

 

 

Can the Court of Protection authorise detention of an adult in a Children’s Home?

There is something of a rule of thumb that if a newspaper headline poses a question, the answer on reading the full article is invariably “No”   (as in  “Can a glass of red wine cure cancer?”  “Were Al-Qaida involved in Diana plot?”

 

Some good examples here

 

http://www.independent.co.uk/news/media/press/the-top-ten-questions-to-which-the-answer-is-no-8788687.html

 

This one though, is a question to which the answer (somewhat inexplicably to the naked eye) is  Yes

 

Liverpool City Council v SG 2014

http://www.bailii.org/ew/cases/EWCOP/2014/10.html

 

In good, dramatic novelist style, Holman J gets stuck into it from the very off, and lets us know in paragraph 2 that this is not some mere dull Court of Protection case, but that something peculiar is about to happen, read on !

 

  • This case raises the following question:

 

 

Does the Court of Protection have power to make an order which authorises that a person who is not a child (ie who has attained the age of 18) may be deprived of his liberty in premises which are a children’s home as defined in section 1(2) of the Care Standards Act 2000 and are subject to the Children’s Homes Regulations 2001 (as amended)?

Both parties and their counsel in these proceedings submit that the answer is “yes”. I agree with them that the answer is “yes”.

 

We go on

 

 

  • I wish to stress at once the scope of that question which I have precisely drafted. This judgment and my answer to the question applies only in the case of a person who is not a child, that is, who has attained the age of 18. This judgment says nothing at all in relation to a person who has not attained the age of 18, and in particular to persons between the ages of 16 and 18. Further, this judgment is only concerned with a person in a children’s home, and says nothing at all with regard to a person who may be detained in a residential school.

 

 

 

  • I also wish to emphasise that both parties and their counsel who are before me in this case are agreed upon the answer to that question and the reasons for the answer. In other words, I have not heard any argument or submissions to the contrary. If, in some other case, on a future date, some party wishes to argue to the contrary, then of course that limitation or reservation upon the value of this ex tempore judgment as a precedent may be noted.

 

I have more of the average human allowance of curiosity to be sure, but my curiosity is piqued by this. It is sounding like some sort of trick question. Let’s go over it piece by piece.

 

The Court of Protection – dealing with a person who has reached the age of 18. Not a child.  They are in a children’s home though.  (we don’t yet know why). The Court of Protection is being asked to authorise their detention (we don’t yet know why). And being asked to authorise their detention in a children’s home (we don’t yet know why)

 

All of my instincts are screaming out at me that the answer to this must be no. Adults don’t get locked up in children’s homes. It just doesn’t happen. If the person is an adult, then the detention is either through the criminal justice system, the mental health act or an authorisation of deprivation of liberty under the Mental Capacity Act  – this one is the last of those, which is why it is in the Court of Protection. But the Court of Protection only deals with adults, so why has a children’s home been dragged into this?

 

I stopped reading the judgment at this point to see if I could guess why. Here’s my crack at WHY – this is a person who has huge problems, lacks capacity, and has been in a particular children’s home for many years, maybe six or seven years. They have only just turned 18 – their liberty has to be deprived, but they are doing so well in the particular children’s home that nobody wants to move them. So, in order to let them stay where they are, the Court has been asked to authorise detention of an adult in a children’s home.  Maybe I am wide of the mark, we shall see.  That’s a plausible-ish WHY, but I’m still baffled on the HOW element. How did the Court of Protection decide that this was lawful.

 

Let’s return to the judgment itself

 

  • The reason why the question has been posed appears to derive from two relatively recent developments. The first development is the recent decision of the Supreme Court in the Cheshire West case. The explanation given in that case by Baroness Hale of Richmond as to the scope or breadth of the concept of a deprivation of liberty has led to a concern that a significant number of people are, or may be, being deprived of their liberty who were not previously thought to have been. As is well known, this has led to a very large number of applications to the Court of Protection in order to seek authorisations for the deprivation of liberty.

 

 

 

  • The second development is a document headed “Deprivation of Liberty – Guidance for Providers of Children’s Homes and Residential Special Schools” dated 12th February 2014 and issued jointly by the President of the Court of Protection and the National Director Social Care OFSTED. It appears that as a result of that guidance document there has been, or is, uncertainty on the part of many lawyers and providers in this field as to the scope or extent of any power of the Court of Protection to authorise, when appropriate, the deprivation of liberty of certain categories of person who are accommodated in children’s homes or residential special schools. As the above defined question indicates, that concern has arisen in the present case, but I know that it is much more widespread as a result of the circumstances which I now describe.

 

 

{Absolutely – the Supreme Court’s decision in Cheshire West means that a range of people who were not thought to be having their liberty deprived actually ARE, and the President has heard a case but is yet to give judgment helping explain what the heck lawyers and Local Authorities and the Courts are going to do with the 10,000 extra cases that are believed to now be deprivation of liberty applications. Some of those cases might arise with young persons who are currently in children’s homes, but haven’t been the subject of Secure Accommodation Orders because they lack capacity to try to abscond

Treasury Solicitors said this ” These issues potentially affect a large number of children and young people who lack capacity but who currently reside in non-secure children’s homes or residential special schools. By way of example only, as at 31st March 2014, there were more than 6,500 over 16 year olds residing in care homes, children’s homes or residential special schools. The Secretary of State has not yet been able to determine the proportion of those 6,500 odd young people who may lack capacity.”    So at the moment, we don’t know how big a problem Cheshire West is for children}

 

Now, the facts of the case in question

 

 

  • It concerns a young woman, SG, who was born in early June 1995. Today she is in fact now 19. She was born in Romania and was apparently rapidly abandoned by her parents and taken to a state orphanage there. The first few years of her life appear to have lacked human affection and natural processes of bonding or attachment. When she was about 4 she was adopted by an English couple, who are, of course, now her parents.

 

 

 

  • As she grew older, it became increasingly plain that she suffers a number of lasting disabilities or disorders. She certainly has learning disability, a disinhibited attachment disorder, and quasi autism. Features of her condition have always been hypersensitivity to external stimuli, and challenging behaviour. More recently there has been a tragic history of self harm. Her childhood has, as a result, been very disrupted. She attended, but was removed from, various schools. She has had to spend long periods in hospitals. More recently she was placed in children’s homes. Challenging behaviour towards staff, absconding, damaging property, episodes of self harm and hitting out at her father have all been recorded.

 

 

 

  • For some time before she actually attained the age of 18 she was accommodated in a certain children’s home in the area and it is in those actual premises that she remains accommodated to this day. However, now that she has attained the age of 18 and is indeed now 19, it is completely recognised by the responsible local authority, in agreement with her parents, that arrangements must be made to enable her to move on to what is described as “supported living” in the community. This will take time to identify and set up, and, I have no doubt, considerable funding issues will need to be addressed. The local authority need to find a provider who will purchase or otherwise make available a suitable property and recruit a sufficient number of staff to care for her and keep her safe. The plan is that some premises will be found in which she can live together with a small number of other young women with similar needs. I have been told in the words of the skeleton argument on behalf of the local authority that:

 

 

“…one provider has already identified a suitable property and indicated a service could be in place for October 2014. It is hoped that securing a property will take no more than six to nine months after appointing the care agency, but it may be much quicker than that.”

As I understand it, it is contemplated that a high level of staffing and supervision will be required under that plan. If (as I assume is likely) it will involve a deprivation of liberty, then, in due course appropriate authorisations will be required.

 

  • Meantime, however, she has continued to live seamlessly in the children’s home where she was living before she attained the age of 18. There, too, she is the subject of very considerable staffing on a 3:1 basis. The staffing includes monitoring her while she is in the bathroom (ensuring her dignity is maintained at all times), locking the front door as a preventative measure, following, observing and monitoring her on visits into the community, and if she “attempts to leave the staff supporting her, they should follow several paces behind her and attempt to maintain conversation.” Items which may be used for self harm will be removed, and she remains supported 3:1 during the day and 2:1 during the night.

 

 

 

  • It is completely accepted by and on behalf of the local authority that that package of existing measures clearly amounts to a deprivation of her liberty as that concept has now been explained, in particular in paragraph 46 of the judgment of Baroness Hale of Richmond in the Cheshire West case, which I do not need to cite for the purposes of this judgment. Having appreciated in the light of the Cheshire West case that they currently do, and propose to continue to, deprive the patient of her liberty, the local authority commenced the present proceedings in the Court of Protection for appropriate authorisations.

 

 

 

 

Okay, I wasn’t that far wrong with my guesses – she is 19, has severe problems and has been in a children’s home doing as well as one could hope – she needs to be moved to another placement, and everyone involved wants her to stay in the children’s home until the RIGHT adult home can be found for her, rather than just moving her into any old adult home and potentially setting her back. That makes sense. But whereas before Cheshire West, professionals could ‘overlook’ that this was an 18 year old living in a children’s home, once the Supreme Court ruled that people like this were being deprived of their liberty, an application to authorise that had to be made.

 

Having done the WHY, we can now deal with the HOW.  But first, why is the HOW potentially difficult?

 

 

  • Section 121(1) of the Care Standards Act 2000, the interpretation section, defines that in that Act “child” means a person under the age of 18. Section 1(2) of that Act provides that: “An establishment is a children’s home… if it provides care and accommodation wholly or mainly for children.” The premises in which the patient in this case currently resides, and was residing before she attained the age of 18, is premises which have provided care and accommodation wholly or mainly for children in that there were at one time several children resident there. It is currently “registered” as a children’s home pursuant to the Care Standards Act 2000 and regulations made under it.

 

 

 

  • I have been told today that as a matter of fact no other person (apart from staff) currently resides in those premises apart from the patient. So, on one view, currently it is not providing care and accommodation even “mainly for children”, as no child resides there at all. However, all parties have proceeded on the basis that, notwithstanding the fact that currently no children reside there, it remains a children’s home for the purposes of the Act and the regulations, and I will proceed on that basis and assumption.

 

 

 

  • Assuming the premises to be a children’s home, the Children’s Homes Regulations 2001 SI [2001] No 3967 are in general terms engaged. Part III of those regulations is entitled “Conduct of Children’s Homes”. Chapter 1 of Part III is entitled “Welfare of Children”. Within Chapter 1, regulations 11 to 24 make a range of provisions with regard to the welfare of children, the food provided to children, communications with children, the protection of children, the behaviour, management and discipline of children, health needs, hazards and safety and other matters.

 

 

 

  • Of most relevance to the perceived problem in the present case is regulation 17A, which is entitled “Restraint”. Paragraph (1) provides as follows:

 

 

“(1) Subject to paragraph (2) a measure of restraint may only be used on a child accommodated in a children’s home for the purpose of-

(a) preventing injury to any person (including the child who is being restrained);

(b) preventing serious damage to the property of any person (including the child who is being restrained); and

(c) in the case of a child accommodated in a children’s home which is a secure children’s home, preventing the child from absconding from the home,

and then only where no alternative method of preventing the event specified in sub-paragraphs (a) to (c) is available.”

 

  • Just pausing there, whilst the regulation is prominent, it will be noted that throughout that part of that regulation the references are entirely to “a child”, that phrase being used five times in that short quotation.

 

 

 

  • The guidance that was issued on 12th February 2014 states at paragraph 3:

 

 

“3. The Court of Protection should be reminded by the parties of the regulations that apply to children’s homes and residential special schools. The Court of Protection does not have the jurisdiction to require any home or school to act in breach of such regulations or to authorise any such breach. Accordingly, the Court of Protection should not make an order authorising a plan for the care and supervision involving the detention of a person, where to do so would involve the children’s home or a residential special school breaching the regulations that apply to it. If compliance with an order of the Court of Protection would involve such a breach of the relevant Regulations it cannot be relied on to justify breach of the Regulations or enforced in a manner that would involve such a breach.”

 

  • Pausing there, that paragraph contains, if I may respectfully say so, no more than a legal truism. Regulations have the force of law, and no court, frankly, in any circumstances that I can readily think of, can authorise a person or body to act in a way that contravenes a regulation, or still less a statute, so as to be in breach of the regulation or statute. On a careful reading of that paragraph of the guidance, it ultimately says no more than that. The question, therefore, in any case is whether what the Court of Protection is otherwise being asked to authorise would amount to a “breach” of some regulation.

 

But one can see that the children’s home is authorised and approved to accommodate children, and in certain very narrow circumstances to restrict the liberty of children. The Act doesn’t give them as a children’s home, any right to restrain an adult or restrict the liberty of an adult.

 

 

  • he guidance continues at paragraph 4 as follows:

 

 

“4. All children’s homes must meet the Children’s Homes Regulations (2001). In this instance, the relevant regulations are:

Regulation 11 (Promotion of Welfare),

Regulation 17 (Behaviour, management and discipline) and

Regulation 17A (Restraint).

As restraint can only be used to prevent a child from leaving a secure children’s home, there is no purpose to be served in seeking an order of the Court of Protection authorising such restraint by a non-secure children’s home because the Court of Protection has no jurisdiction to order or authorise a breach of these regulations.”

 

  • Pausing there, it is possible (I put it no higher than that) that the accuracy of that part of the guidance is more debatable. It may beg the question of whether paragraph 17A(1)(c) of the regulations is a platform or a ceiling. But that is territory into which I simply should not and do not venture in the present case because paragraph 4 of the guidance is directed to “a child” and, as I have stressed, the patient in this case is not a child.

 

 

 

  • Finally, in a section that is avowedly headed “In Summary”, paragraph 13 of the guidance provides:

 

 

“13. Orders of the Court of Protection authorising a deprivation of liberty by non-secure children’s homes or residential special schools should not be sought or made and they should not be advanced or relied on to permit such homes and schools to act in breach of the regulations that apply to them.”

That, of course, is merely a summary, and the content of paragraph 13 is more fully elaborated in paragraphs 3 and 4 from which I have already quoted.

[The reason why this guidance is important is because it makes it plain - that might be too strong a description - it intends to make it plain - that the Court of Protection authorises deprivation of liberty for ADULTS, and the Family Court through s25 Children Act secure accommodation authorises the deprivation of liberty of CHILDREN. The idea is that the Court of Protection should not sidestep s25 Children Act - which has its own protections and safeguards by authorising the detention of children who lack capacity and using the Mental Capacity Act.  So, if SG was 17, the Court of Protection would not be able to tell the children's home that it was okay to detain her.  And conversely, as she is 19, the Court of Protection can authorise her detention or restriction of her liberty under the MCA. But this person is betwixt. They are an adult in a children's home. ]

The issue was, does all that guidance mean that the Court of Protection have to butt out (technical term there, but ‘accept that they have no jurisdiction’) for anyone whose liberty is being deprived in a children’s home, as para 13 says?  Or is it nonsense to suggest that para 13 applies to anyone other than CHILDREN?

Holman J takes the latter course, and now finally it all becomes clear (if by clear, you mean – gosh, my head hurts, I feel the need to lay down in a dark room and listen to soothing music)

  • The short and simple point is that the relevant parts of the Children’s Homes Regulations 2001 simply do not apply at all in the case of a person who is no longer a child. It may often happen, as it has happened in this case, that the premises in which a person, now adult, resides or is detained happen also to be a children’s home. But it frankly makes no difference whether the premises themselves are a children’s home or are some dedicated premises that have been provided in the community under the kind of “supported living model” contemplated for this very patient in this very case.

 

  • In my view, the Court of Protection has undoubted power in the present case to make, if appropriate, an order authorising the deprivation of liberty. Further, it is the duty of the person or body, in this case the local authority, who is or are depriving the patient of his liberty, to apply to the court for an authorisation; and, indeed, the duty of the court to make such authorisation as in its discretion and on the fact and in the circumstances of the case it considers appropriate.

 

  • In the present case it is common ground, and there is abundant evidence to support the proposition, that this patient lacks capacity to litigate and to make decisions as to her care and residence, and that it is in her best interests to continue for the time being to reside in the premises which are a children’s home in which she has been residing for some time, and that the deprivation of her liberty which is involved should be authorised.

 

  • So for those reasons I, myself, answer the question posed in paragraph 2 above as “yes”, and there will be an order which records that the court does consider that neither the Children’s Homes Regulations 2001 nor the joint guidance issued by the President of the Court of Protection and OFSTED dated 12th February 2014 prevent the Court of Protection from authorising under the Mental Capacity Act 2005 that a person who is an adult (viz. over the age of 18) may be deprived of his liberty in premises which are a children’s home. There will be appropriate declarations as to the lack of capacity and best interests of the patient and authorising the deprivation of her liberty; and I now transfer this matter back to the Court of Protection sitting in Liverpool where future decision making will be resumed after an appropriate interval by the local district judge there.

 

 

If you thought that the recent case about whether a former head of state had immunity after their death for marrying someone and not paying them any money was (a) complex and (b) a set of circumstances so recherche that they would never arise again if we lived and litigated until the sun ran out of fuel and the stars went out, then this one probably matches it.

 

It does show that the litigation fallout from Cheshire West is the gift that keeps on giving. There was a theory I read once that crossword puzzles were designed by an enemy of Britain, to soak up the brainpower of our most able people so that they would waste time on solving those rather than inventing things to help the War effort. The same may be true of Cheshire West – it may all be a cunning ruse by Baroness Hale to keep all Mental Capacity Act lawyers embroiled in solving what appear to be intractable problems and getting them all to take their eye off something far bigger and more significant.

 

Extinction bursts

 

 
Northamptonshire NHS Trust v Another 2014

http://www.bailii.org/ew/cases/EWCOP/2014/2.html

This is a sad Court of Protection case, involving a young man named ML. ML had a variety of different needs :- severe learning disability, developmental disorder, autism, epilepsy and diabetes. He has very limited conventional skills of communication or social interaction.

As a result of this, his family reached the point where they needed some help. Three times per week he attends an Autistic Day Centre from 10.00am to 3.00pm, but otherwise lives with his family full-time.

The Trust made an application to the Court of Protection seeking a declaration that it would be in ML’s best interests to reside at Bestwood Hospital and get treatment there until he is in a position to return home.

All parties were agreed that this would be a deprivation of liberty (particularly following the Supreme Court’s decision in Cheshire) , and thus something that would need to be specifically authorised.
5. Behind these deceptively simple draft declarations is a history of professional and family conflict which has frequently been bitter and occasionally rancorous (amongst the professionals). It is a case which has engendered many high emotions in people who feel strongly about the important nature of the work they are involved in and who are very highly motivated to achieve the best outcomes for ML. Some, though certainly not all, witnesses have overstated their cases, been selective in their use of material, emotive in their use of language, disrespectful to those who hold contrary views. In consequence, despite their laudable objectives, they have made it difficult for me, at times, to get a clear picture of how ML functions and how his needs might best be met. If I accept the evidence of Susan Freeman, Nurse Consultant, ML is one of the most dangerous patients she has encountered still living within the community. She had, she told me, “only experienced one other person with more aggressive behaviour impact on others to the severity that ML’s does” and this was in the context of 30 Years of nursing people “whose behaviour challenges services” as she puts it. In her statement of the 31st January 2014 Ms. Freeman observed “I am a very experienced learning disability nurse. In all the years that I have been practicing ML is one of the most complex and challenging patients that I have been involved with, the range of his needs is quite vast”. Ms Freeman described ML as showing high levels of aggression “impacting on every area of his life and inhibiting appropriate health care intervention”. She believed his abilities were diminishing in an isolated routine. She said “If ML is not transferred out of his current environment and routines his world is going to continue to decrease”. ML’s diet said Ms Freeman was entirely unsatisfactory. By way of example she said ML ate only jam sandwiches and that little attempt was made to vary the diet. Certainly jam sandwiches, as Mr Weston, later confirmed were all ML ever ate at the Day Centre. I have heard in evidence that this resistance to new experiences, taste or routines is a feature of his autism, not uncommon at this severe end of the spectrum. Ms Freeman was uncompromising in her professional criticism of the National Autistic Society Day Centre. Their approach to ML’s care was she said “fundamentally flawed” it was “managing him at a distance” it involved withdrawing from him to avoid outbursts, it left him isolated and under stimulated and it served to reinforce his reliance on aggression.
6. In respect of the parents Ms Freeman said that they believe ML is simply unable to make progress or develop new skills. They are, she considered, over reliant on medication and believe its restorative powers will ultimately manage ML’s aggressive behaviours.
7. There was, however, a radically different picture of ML presented by other witnesses namely the parents, Ian Weston (the support worker at the NAS Day Centre) and Ms Heather Eyers.
8. It was not possible for the mother (EL) to come to London, it would have required an intolerable and unsustainable interruption to ML’s routine. I took her evidence by telephone link so all could hear it. She told me that she had made progress with ML’s diet, that he was now eating a broader range of foods: ‘pasties’, ‘crisps’, ‘sausages’ she said, by way of example, not particularly nutritious but an important improvement . She and her husband had attributed the peak in ML’s violent behaviour at the end of 2012 and early 2013 as being a consequence of his distress during his term as an inpatient in the Vale Hospital, where they considered he had been too readily ‘secluded’ (locked in a partially padded room) and for extended periods of time (4 ½ hours on one occasion). He had since calmed down and become more manageable. They had experienced no difficulty in managing him at home for months. Both parents said he was happy at home, well known and protected in their local community. He enjoyed seeing his brother and enjoyed the Day Centre. They have a padded room at home and both BL and EL told me that ML goes willingly to it when required. They simply do not see the extent of aggression that is attributed to ML and believe that the documented case gives only a partial picture. “We do not keep records at home”, they say. Moreover, they assert, the case papers inevitably concentrate on problem episodes rather than the many times when ML is relaxed and content. In their carefully presented closing submissions they undertook an analysis of the advantages of their proposals. It purported to be a comparative analysis but in truth, it was, understandably, largely one sided. They wish the present arrangements to continue and submit
Home / NAS Day Centre
i) We accept that there are no community living placements currently suitable for ML but there is no immediate need for ML to be moved from his family home. We are very happy for him to remain living here with us. We have managed to look after ML for 25 years and see no reason why we cannot continue to do so for the future.
ii) We are able to provide physical and medical care for ML. He is not disadvantaged in any way by living at home. We believe that we have the best understanding of ML’s medical needs having had to deal with them over his life.
iii) We believe that ML has gained enormously from moving back into his family home. He is happy and enjoys his life. He has daily contact with the outside world. His life is full and he is happy and secure in his routines.
iv) We believe that the work we have been doing at home with ML and the plans given in the recent NAS (National Autistic Society) witness statement give a solid base for work to develop ML’s functional skills using methods that take his autistic limitations into account. We believe this is likely to result in slow but steady progress for ML.
v) ML is an integral part of a loving family. We have always accepted his challenging behaviour and dealt with it. We have come through the difficult times with him and never gave up on him. We strongly believe that ML enjoys his family life and would want it to continue if he were able to choose.

 

Mr Weston comes out of this case with a considerable amount of credit, and the Judge had asked specifically to hear from him.

9. Having heard in evidence that ML had a particularly good relationship with his care assistant Ian Weston, I asked if Mr Weston could attend court because I hoped to be able to reconcile these differing accounts of ML’s general behaviour. Mr Weston could not have been more positive: he told me that ML enjoys walks but had, for example, easily been distracted from his usual routine when routes were impassable due to recent flooding. That was a good indicator of some of the progress being made he thought. He saw his role as “giving him the enjoyment that he needs”. I am impressed by the extent to which Mr Weston knew how ML was able to enjoy himself: ‘his Ipad’; ‘YouTube’, especially ‘Winnie the Pooh’ videos which he regularly enjoyed. He particularly likes swimming and likes Mr Weston repeatedly jumping into the pool. He enjoys the sound of the splash.
10. Mr Weston described how he had developed a habit for deflecting repeat requests for him to jump in and to which ML had responded. ML had learnt to dry himself which had always been a problem in the past he said. He was very clear that ML was much happier. Mr Weston was a tall well built man, both his stature and his contagious enthusiasm undoubtedly gave him an advantage over some of his colleagues. This was recognised and he was more regularly selected by the Day Centre to assist ML. It was made clear to me that one or two of the more diminutive assistants were less comfortable.
11. ML, it was agreed, likes “strong confident men”. I formed the view that whilst that strength and confidence was important it was not necessarily physical strength that he responded to (though that undoubtedly helps). He appears to respond to those he trusts well. I have seen photographs of him with his mother which reveal a capacity to display affection that the reports and evidence did not fully reveal to me.
12. All this said I note that on one very unfortunate visit to the swimming pool ML lashed out against Mr Weston, causing him to fall to the ground and crack two ribs. Mr Weston had to take some time off work. It did not deter him though and his relationship with ML has continued to flourish. Mr Weston knew that ML’s parents want to keep him at home and attending the Day Care Centre. I am clear that he intended to support them in his evidence. However, his commitment to ML and I thought real affection for him also communicated a sense of his own evaluation of ML’s potential. He seemed to me to be enthusiastic, to go beyond ‘keeping him happy’ and to bring him on. Mr Weston had, in my judgement, a strong sense that ML had greater potential than was being realised. Both ML and the NAS Day Centre are very fortunate to have Mr Weston. It was very clear to me why ML would respond to such enthusiasm and energy.

 

 

 

As part of the analysis of what ML might need in the future, the Judge wanted and needed to know more about the current assistance he is receiving. That seemingly innocuous enquiry led to an exploration of a short period ML had had in hospital, the Vale Hospital.

Ms Eyers, from the National Autistic Society had prepared a report about what the Day Centre were doing with ML, and the Court quoted extensively from it

16. In her report to the Court dated 11th February 2014, Ms Eyers evaluates the rationale and the success of the program. I propose to set her analysis out in full in order properly to do justice to it and so that it can address the criticisms made of it:
“The rationale of our current approach to behaviour support is to ask staff to leave at set intervals, so that ML’s need for time alone is respected before he has to present with physical aggression, which automatically causes the staff to withdraw. This approach aims to weaken the relationship between the presentation of the behaviour of concern and the reinforcer. This is achieved because the reinforcer is delivered independently of the presentation of the behaviour of concern. At the same time staff are modelling a more socially acceptable way for ML to communicate that he would like to spend time alone (waving of the hand). The full rationale is outlined in exhibit HE3.
Since the introduction of the behaviour support programme the day service has seen a drop in the amount of incidents to a maximum of 5 in one month, from up to 12 previously; with no incidents that have caused harm to others in a 3 month period. Analysis of the incident reports also indicates that the length of time of incidents has decreased from a maximum of 5 hours per day to a maximum 3 minutes. The intensity of incidents has also seen a decrease, with 55% of incidents post intervention requiring minimal response from his support team and not interrupting his activity, compared with 21% prior to the intervention – Exhibit HE4.
I feel that the current approach to supporting ML is successful, although it is slow paced, and we have seen a decrease in both the frequency and intensity of behaviours of concern and an increase in the amount of time that staff are spending in the space that has been dedicated to ML. It must be acknowledged that ML only currently spends 15 hours per week at the day service. The aims of the Behaviour Support Programme are now to increase the amount of time that staff are actively engaged in meaningful activity with ML – Exhibit HE5
In terms of the NAS continuing to support ML it is my opinion that whilst his levels of anxiety and physical aggression remain at current frequency and intensity then ML is not posing a high risk to those supporting him, himself or others who use the service. I would be cautious about using any other approach at the day service than the current Behaviour Support Programme, which relies on Non-contingent reinforcement, in which staff give ML structured periods of time when they are not in his company, as well as teaching functionally equivalent skills for him to tell us that he wants us to leave (rather than use of physical aggression), as this is having the affect of decreasing the number of incidents that ML is having, however it is a slow process and would need ML to continue to have his own safe space at the centre and to be more tolerant of staff before we can begin to look at preference assessment to find other activities that interest him.
The use of ‘extinction theory’ would not be appropriate at the day service due to the high risk of an ‘extinction burst’ challenging behaviour, the result of which would be of too high risk in this setting.
The NAS are committed to providing a good support service to ML and I do feel that once we have worked on his ability to tolerate others we can introduce a range of techniques to develop his functional skills and this will include :
i) Implementation of the Picture Exchange System to support his communication skills;
ii) Intensive interaction sessions to support development of his social interaction skills;
iii) Completing Sensory assessment and developing sensory based activities that meet his processing needs, especially in relation to tactile stimulation, olfactory stimulation and proprioceptive stimulation.
iv) Preference assessment to discover activities that interest and motive ML.

 
17. The Strategy referred to as ‘extinction theory’ has been the subject of much controversy in this case
Extinction theory and extinction bursts are a new concept to me, so I am grateful that the Judge explained it. There was a considerable schism between professionals in the case as to whether extinction theory would eventually bear fruit for ML and it was worth persevering through a difficult period, or whether it was harmful and wrong for ML.

24. An Extinction Burst is defined as follows:
“Extinction…. involves eliminating the reinforcement contingency maintaining a response which can result in … a temporary increase in the frequency, intensity or duration of the target response, also called ‘Extinction Bursts’ ” (Cooper, Heron and Heward, 1987 in Leman and Iawatu 1955).
I hesitate to attempt to reduce this concept into lay terms because, as has been emphasised, to do so runs the risk of oversimplifying what can be a subtle and complex process. Nonetheless, with that caveat in mind, it implies that if ML is confronted with something he does not like (stimuli of any kind) his fight instinct is aroused. The essence of the technique is to not respond in spite of the aggression and to continue the stimulus. It seems inevitable that until ML realises that his aggression is not causing the removal of the stimulus his aggression will accelerate. Breaking through this cycle, as I understand it, is termed the “extinction burst”. As ML recognised, he and EL are simply not able to manage this strategy. The reality (as opposed to the theory) is very painful and distressing both emotionally and likely physically too. BL told me he was profoundly afraid for his son, frightened about the technique and about the consequences if as he puts it “it all goes wrong”.
Part of the reason that ML’s family were worried that it would all go wrong, and opposed to ML being placed in hospital was the awful experience of his previous hospitalisation at the Vale.

 

 

25. ML was admitted between March and August 2012 as his parents were struggling to manage him. He returned having been discharged under the Mental Health Act 1983, pursuant to the discretionary powers of the Mental Health Review Tribunal in August 2012. It seems clear that the approach of the The Vale had been challenging and, had broadly, pursued the ‘extinction burst’ strategy that I have referred to above. It was a very difficult period for ML and his family. It was his parents who ultimately applied for his discharge under the Mental Health Act, which was opposed by the Trust.
26. In his 1st report, dated 24th October 2012, Dr Carpenter reviewed this period of admission. He saw no evidence that during the 5 months in hospital ML had learnt new self care skills sufficient to change his care needs. He observes
“In hospital he appears to have been restrained at length and this often disturbed him later, it certainly seems to have encouraged him to use his teeth to get away from being held…
He was then moved to another room to be secluded. My assessment is that as he had by then been in a struggling restraint for a period of time he enters the seclusion room very aroused and angry and then kicks and headbangs in a way that he was not prone to do – to the point of knocking himself unconscious and giving himself black eyes”.
27. In Dr Carpenter’s assessment, based on his review of the notes, the lengths of seclusion needed for ML to calm down were 10 times longer than they had been at home. Dr Carpenter also added:
“It is a challenge to find things that he enjoys. I feel we need to brainstorm the sensory likes he has and activities suitable for his development level“.
28. I endorse his last observation and I would emphasise it because, in different ways, every witness indentified the importance of this. Had there been a more collaborative approach amongst the professionals I suspect that much of this work would already have been done.
29. Annexed to Dr Carpenter’s report is a schedule headed ‘Hospital Seclusion record extracts’. I have found that to be a very disturbing document indeed. BL was unrepresented at this hearing and so I, on his behalf put this document under considerable forensic scrutiny. It is intrinsic to BL’s case that ML’s past treatment at the Vale Hospital has a direct bearing on future treatment and the declarations sought to enable such treatment to be implemented. Analysing carefully the periods of ‘seclusion’ whilst at the Vale Hospital is therefore crucial to this forensic process. BL is not a lawyer, he is a father. Though very effective in other aspects of the presentation of the case, the material relating to seclusion was something he found difficult to organise and evaluate. In my judgment that period was so full of pain for him as a father he could barely face revisiting it. His distress was visible despite his determination to remain controlled.
30. The way in which and the extent to which vulnerable adults are ‘secluded’ or deprived of their liberty is one of the indexes by which we measure our maturity as a democratic society. The necessity and proportionality of restriction of an individual’s personal autonomy requires constant vigilance and effective independent review. Both the framework of the Mental Health Act 1983 and the Mental Capacity Act 2005 are rigorous in affording a regime of both protection and review. Public funding for family members in both systems is rarely available and so they regularly appear unrepresented. This inevitably imposes an even greater burden on the offices of the Official Solicitor to ensure that those who they represent are fully protected. The enquiry into the extent and safety of ML’s detention in the Vale Hospital here was Judge led. It ought not to have been necessary for it to be so. The facts ought to have triggered, at very least, forensic curiosity. The Official Solicitor has provided, valuable assistance on the legal issues the case raises but the welfare investigation was, in my judgement, not sufficiently searching.
31. On the 10th April 2012 ML was kept in seclusion for 5 hours. That was unusual, but the records show that he was regularly secluded between 1 hr and 1hr 30 minutes.
That, if you missed it, was the Judge opening up a six pack of Whup-Ass. He was very unhappy about what the Vale had done, very unhappy that these awful facts came to light as a result of judicial investigation rather than had been presented directly to him, and was very unhappy that the Official Solicitor hadn’t found this stuff out.
The thrust was that “extinction theory” had been used on ML, with a view to when he was exposed to something he didn’t like and became aggressive rather than stopping the exposure, professionals would continue it and ignore the aggression, under the expectation that EVENTUALLY ML would learn that aggressive behaviour does not end up getting his needs met and he would move away from it as a strategy or technique. In practice, what happened was that ML got so aggressive that he had to be secluded, on one occasion for 5 hours but very often for about an hour.

This is what the Judge had to say about seclusion
32. ‘Seclusion’ is defined in the Mental Health Act Code of Practice
“15.43 Seclusion is the supervised confinement of a patient in a room, which may be locked. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others.
15.44 Alternative terminology such as “therapeutic isolation”, “single-person wards” and “enforced segregation” should not be used to deprive patients of the safeguards established for the use of seclusion. All episodes which meet the definition in the previous paragraph must be treated as seclusion, regardless of the terminology used.”
33. Further features of the codes need to be highlighted:
“15.45 Seclusion should be used only as a last resort and for the shortest possible time. Seclusion should not be used as a punishment or a threat, or because of a shortage of staff. It should not form part of a treatment programme. Seclusion should never be used solely as a means of managing self-harming behaviour. Where the patient poses a risk of self-harm as well as harm to others, seclusion should be used only when the professionals involved are satisfied that the need to protect other people outweighs any increased risk to the patient’s health or safety and that any such risk can be properly managed.
15.46 Seclusion of an informal patient should be taken as an indication of the need to consider formal detention.
15.47 Hospital policies should include clear written guidelines on the use of seclusion. Guidelines should:
• ensure the safety and wellbeing of the patient;
• ensure that the patient receives the care and support rendered necessary by their seclusion both during and after it has taken place;
• distinguish between seclusion and psychological behaviour therapy interventions (such as “time out”);
• specify a suitable environment that takes account of the patient’s dignity and physical wellbeing;
• set out the roles and responsibilities of staff; and
• set requirements for recording, monitoring and reviewing the use of seclusion and any follow-up action.
So, having already established that seclusion is a last resort, should only be used for the shortest possible time and should not be used as part of a treatment programme or to manage self-harming behaviour, it was already pretty plain that it ought not to have been used on ML in this way.

It gets worse

35. Susan Freeman drew the hospital’s attention to what she considered to be inadequate padding to the door of the seclusion room. She is very experienced, she is, as is already evident from this judgment, forthright in her manner of expression. I should have thought that anyone hearing her views on this particular issue would have responded immediately and with some alarm. Astonishingly, and I do not use that word lightly, what followed was an email exchange that challenged the necessity of the additional padding largely on the grounds of expense. On one occasion ML knocked himself unconscious and on another may have sustained two black eyes. I say ‘may’ here because there is a possibility that the black and swollen eyes were the consequence of rubbing eyes affected by hay fever. ML is very resistant to physical examination and the Doctor who saw him was unable to come to a conclusion. Ms Freeman preferred the more benign explanation but with respect to her the proper course was to have remained open minded.
36. The fact of injury coupled with the frequency and the duration of some of the periods of seclusion is profoundly disturbing. The tardiness in responding to Ms Freeman’s concerns, (the padding was eventually rectified) and the reasoning behind the delay is to, my mind, unjustifiable. ML’s safety and his dignity were avoidably compromised. At the end of the case I heard from Mr Richard Mc Kendrick , the Chief Operating Officer of the Northamptonshire Healthcare NHS Foundation Trust. He had, I think, been present throughout most if not all of the evidence in this case.
37. He told me from the witness box:
“Hearing the evidence I share the concern expressed. I am very disappointed at the quality of care ML received at the Vale Hospital. I find it unacceptable. On behalf of the Trust I apologise to the L family for making mistakes and getting it wrong. In my experience, listening to and reading the evidence we should have been more proactive from the first point of ML’s head banging to ensure the seclusion room was safe and properly padded…. The whole circumstances of ML’s admission falls far short of the standards our staff and services aim to provide. I can only say the staff acted with good intentions but made mistakes. I apologise unreservedly on behalf of the Trust.”
38. Mr McKendrick went on in his evidence to state “I will take on board the lessons of this hearing to see that this does not happen again.”
39. That fulsome apology was well judged and nothing less would have been appropriate. When I heard it I asked BL for a response. He told me that he was ‘astonished’. He accepted it with dignity, though he commented that it was too late to afford him any reassurance.

 

In case you missed that, the Vale hospital who were secluding this young man because their use of extinction theory wasn’t working, in breach of the code of practice, didn’t have a properly padded room, and despite warnings that this was dangerous AND the young person injuring himself, did not resolve it because of cost issues.
[The Court weren’t dealing with any compensation claim on behalf of ML, though it appears to me that a lot of the essential ingredients are provided here. That decision not to resolve the padding on cost issues might turn out to be a very false economy]

Looking then, at the family’s objections to ML going into hospital, the Judge said this

40. BL feels that if ML goes into care at Bestwood for the lengthy period (18 – 24 months) contemplated, it will, because of his Autism, weaken his relationship with his family, who he does not respond to well out of the context of the home environment. It is distinctly possible he will not want to see them in hospital. If his behaviour were to deteriorate, as it did following the Vale admission, he would potentially be entirely unmanageable in the community (as Ms Freeman already feels he is) and there would in effect be no way back. ML would have lost the delicate security of the present status quo and be consigned to permanent institutional care. For BL that heartbreaking prospect is simply too great a risk.
41. I hope I have done proper justice to BL’s primary arguments. It is not difficult to see how in the light of the painful experience that Mr McKendrick has now acknowledged BL should be so deeply resistant to the care course planned. No parent or compassionate individual could fail to have anything other than profound sympathy for him and his wife.
To be quite honest, I would have stopped there, invited the Trust to devise a care plan that would support this young man at home and in his Day Centre, and made no deprivation of liberty declarations. I really wish that the Court had.

42. My responsibility is to identify what is in ML’s best interest, mindful that the course proposed by the Applicants undoubtedly, as all agree, amounts to a deprivation of liberty. As the Supreme Court has recently restated P (by his litigation friend the Official Solicitor v Cheshire West and Chester Council and another; PQ (by their litigation friend, the Official Solicitor v Surrey County Council [2014] UKSC19, “human rights have a universal character”. In determining best interests, I must be careful here to focus on what is right for ML by independently and dispassionately evaluating his personal situation. BL’s perception of best interests is relevant only in so far as he is a crucial component of any plan and as such any plan which has his whole hearted support is more likely to succeed. But BL’s views have no further weight than that. (See subsection 4 (7) (b) of the Mental Capacity Act 2005 which imposes an obligation to take into account, if it practicable and appropriate to consult them, the views of anyone engaged in caring for the person or interested in his welfare).
43. The forensic process in this court has not permitted any witness to seek refuge in any particular professional ideology. It has kept an intense focus on ML and what is right for him. In the end the picture that emerged is an amalgamation of the views, contributions and experiences of all the professionals, from the varying disciplines and, of course most importantly from the parents. As BL recognised there was ultimately a professional consensus, though not one to which he could subscribe.
44. The key milestones to my conclusions are as follows:
i) ML at 25 will at some point need to be afforded the opportunity of independent living, which will always require a support structure to underpin it. His parents will not be able to care for him for ever;
ii) It is important that any move is planned and not the result of crisis, either in ML’s behaviour or in his parents’ health or general situation;
iii) There is, when analysed, a consensus that ML has greater potential than his present situation is enabling him to realise;
iv) The objectives of any regime of care ought to aspire to the goal of achieving independent living.
v) That goal (iv) may not always mean that ML’s personal happiness is given priority; integral to improvement is challenge which by definition is not easy;
vi) ML has a strong relationship with his parents, sibling and other key figures in his life. This relationship with his loving and committed parents has given ML a template from which to forge other relationships, as has been seen at the NAS Day Centre. All agree that this capacity is a very encouraging prognostic indicator of ML’s capacity to develop strategies that will equip him better for independent living;
vii) It follows from (vi) above that in addressing the balance of risk in terms of likely outcome at the Bestwood Centre the preponderance of evidence is optimistic. This is of crucial importance when determining whether to retain the status quo or not;
viii) Bestwood is a quite extraordinary resource. It is regarded by all the experts as a centre of excellence. It is finely tailored to the needs of those in ML’s circumstances. BL makes a very telling acknowledgement that if it were convenient to their home, so that they could call in frequently, he would now be supportive of it;
ix) Bestwood is highly sought after by many patients, it is an expensive resource that rarely becomes available. It follows that if ML were moved in crisis it is highly unlikely to be available. Indeed this may be ML’s only chance to gain access to such provision;
x) Whilst the Vale Hospital was not best equipped to manage the ‘extinction burst’ approach, predicated on exposure to stimuli, Bestwood is streamlined to put it in place and fully equipped to do so. I am persuaded that such approach is the correct one for ML.

45. I am satisfied that it is in ML’s best interest to have this opportunity. There is no guarantee of success of course and I fully understand the parents anxiety. I have been struck by how similar their concerns are to the fears of every parent whose child leaves home on the first steps to independent living. I don’t intend in any way to trivialise the issues here by that observation nor to underestimate the impact of their bad experiences at the Vale Hospital. I say it because the sheer normality of their reaction signals to me that ML like any other young man is entitled to the opportunity to fulfil his potential, it is the opportunity and not the outcome that is his right. I would be failing to respect his personal integrity and autonomy if I did not afford him this chance. I hope BL and EL will embrace it.

 

[I don't think that the Judge got this wrong, in an analytical sense, but I wish from a human perspective, he had reached a different conclusion]
There followed a very technical argument about the precise legal framework (basically, the Mental Health Act trumps the other regimes if it is accessible, so that was the regime that happened here). The Judge was obviously mindful that under the Mental Health Act, ML’s family could oppose detention under the nearest relative requirement and that an application MIGHT be made to displace them as nearest relatives.
83. For this reason I propose to take an unusual course. As I have foreshadowed above, any application to displace the nearest relative is to be reserved to me (upon the relevant authorisation to sit as a County Court Judge). I also propose to release this judgment to the President of the First Tier Tribunal with an invitation to him to allocate a judge of the First Tier to hear any applications in this case, to ensure judicial continuity. I will provide that a copy of this judgment follows this case.

Finally, there were some general case management observations
84. By way of a postscript I would add that I am delivering this judgment in early May having heard evidence and submissions in late February and early March. To accommodate the hearing of this case it was necessary to sit long hours and to overrun into the following case. No time was allocated to read the extensive papers in advance. Two volumes of authorities were presented in closing submission, and no time at all had been allocated to reflect on the submissions to write the judgment or to reflect on the submissions.
85. The consequence is that this judgment has been delayed to a degree that I consider to be quite unacceptable for ML. Those who practice within the Court of Protection must understand that it is part of the responsibility of the lawyers to ensure that there are realistic time estimates given to the court. The instinct to underestimate the timescale of a case in order that it might be heard more expeditiously is misconceived as this case certainly has proved. I make these observations because this case is far from an isolated example. That said I have received invaluable assistance from all Counsel to whom I am extremely grateful.

 

Lucy Series over at The Small Places has written about another case where the vulnerable person has been very badly let down by professionals

https://thesmallplaces.wordpress.com/2014/05/16/another-local-authority-behaving-badly/

and I agree with everything that she writes there. I am do not feel that in either case, quite enough attention went on what could be put in place to care and support these people living in their own homes rather than in institutions.

A Re B type judgment is overdue in Mental Capacity cases, that would put the emphasis squarely on making things work at home if at all possible.

A gilded cage is still a cage (Lady Hale finally wins one!)

If you do Court of Protection work, you have probably been waiting for the Supreme Court’s decision in Cheshire West and Chester, which is here

http://www.bailii.org/uk/cases/UKSC/2014/19.html

 

 The Supreme Court decided unanimously that P’s liberty was being deprived, and on a 4-3 split that MIG and MEG’s liberty was being deprived. [Yes, a 4-3 split in which Lady Hale finished on the winning side. A 4-3 split does, however indicate that the issues are difficult and that it wasn't an easy decision or foregone conclusion - they also overturned the Court of Appeal on these two linked cases]

 At the same time, they dismantled the Court of Appeal’s notion that a factual determination of whether someone’s liberty was being deprived was a subjective comparison with what would be reasonable to do for someone of similar characteristics. This is also, as far as I know,  the first finalised deprivation of liberty decision applying to a person living in a foster placement rather than a care home or hospital.

 If you do only care or children work, you’ve probably never heard of Cheshire West, or MIG and MEG, or possibly even DoLs; but just in case you think you can cheerfully ignore all of them, give me one paragraph of your time, to convince you that you ought to learn a bit about this case.

 

The President has issued guidance saying that Deprivation of Liberty applications don’t apply to children under 17 (he is right), and that if there is in a child’s case a deprivation of liberty issue then the mechanism is either detention under the Mental Health Act or an application for a Secure Accommodation Order. The Supreme Court here decided, on a 4-3 split, that what was happening to two young women (formerly children) in a foster care / residential home setting WAS a deprivation of liberty. And therefore, if this was happening to children in other cases, those other cases ought to be the subject of a Secure Accommodation application, or Mental Health Act intervention.

 

Children have historically been the subject of Secure Accommodation applications if they are absconding, or taking deliberate actions, but this case raises that if their liberty is being deprived as a result of their vulnerabilities or medical situation or functioning, that can still equate to a deprivation of liberty which needs to be sanctioned by the Court.

 

That is only the case if it is the State, or a limb of the State that is restricting the child’s liberty.

 

54. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions.

 

 

I come back to this at the very end of the piece, so if you really don’t care about Court of Protection work, you can skip to the bottom.

 

What sort of restrictions were being applied to those young women, and why?  (I’ll call them MIG and MEG, as they were initially dubbed. This is interchanged in the judgment with P and Q, but because the Supreme Court were dealing with two cases interlinked  “P” and “MIG and MEG” / “P and Q”  I think it is confusing to have two separate “P” cases in the same discussion)

 

11. MIG and MEG are sisters who first became the subject of care proceedings under the Children Act 1989 in 2007, when they were aged respectively 16 and 15. MIG has a learning disability at the lower end of the moderate range or the upper end of the severe range. She also has problems with her sight and her hearing. She communicates with difficulty and has limited understanding, spending much of her time listening to music on her iPod. She needs help crossing the road because she is unaware of danger. MEG has a learning disability at the upper end of the moderate range, bordering on the mild. Her communication skills are better than her sister’s and her emotional understanding is quite sophisticated. Nevertheless, she may have autistic traits and she exhibits challenging behaviour.

 

  1. At the time of the final hearing before Parker J in 2010, MIG (then aged 18) was living with a foster mother with whom she had been placed when she was removed from home. She was devoted to her foster mother (whom she regarded as her “mummy”). Her foster mother provided her with intensive support in most aspects of daily living. She had never attempted to leave the home by herself and showed no wish to do so, but if she did, the foster mother would restrain her. She attended a further education unit daily during term time and was taken on trips and holidays by her foster mother. She was not on any medication.
  1. MEG (then aged 17) had originally been placed with a foster carer, who was unable to manage her severe aggressive outbursts, and so she was moved to a residential home. She mourned the loss of that relationship and wished she was still living with her foster carer. The home was an NHS facility, not a care home, for learning disabled adolescents with complex needs. She had occasional outbursts of challenging behaviour towards the other three residents and sometimes required physical restraint. She was also receiving tranquillising medication. Her care needs were met only as a result of continuous supervision and control. She showed no wish to go out on her own and so did not need to be prevented from doing so. She was accompanied by staff whenever she left. She attended the same further education unit as MIG and had a much fuller social life than her sister.

 

 

The original Court of Protection hearing decided that what was happening was NOT a deprivation of liberty, and that any restrictions were for the best interests of MIG and MEG and were justified.

 

The Court of Appeal agreed: [2011] EWCA Civ 190 [2012] Fam 170. Wilson LJ, who gave the leading judgment, laid stress on the “relative normality” of the sisters’ lives, compared with the lives they might have at home with their family (paras 28, 29), together with the absence of any objection to their present accommodation (para 26). Mummery LJ was also impressed with the “greater fulfilment in an environment more free than they had previously had” (para 52). Smith LJ, on the other hand, thought their previous arrangements were not relevant, but stressed that “what may be a deprivation of liberty for one person may not be for another” (para 40).

 

 

That sentence lays at the heart of the two appeals to the Supreme Court.  In the other case, involving an adult named P, the Supreme Court were unanimous that his liberty had been deprived.

 

  1. P was aged 38 at the time of the Court of Protection hearing. He was born with cerebral palsy and Down’s syndrome and required 24 hour care to meet his personal care needs. Until he was 37 he lived with his mother, who was his principal carer, but her health began to deteriorate and the local social services authority concluded that she was no longer able to look after P. In 2009 they obtained orders from the Court of Protection that it was in P’s best interests to live in accommodation arranged by the local authority.
  1. Since November 2009, he had been living in Z house. This was not a care home. It was a spacious bungalow, described by an independent social worker as cosy and with a pleasant atmosphere, and close to P’s family home. At the time of the final hearing, he shared it with two other residents. There were normally two staff on duty during the day and one “waking” member of staff overnight. P received 98 hours additional one to one support each week, to help him to leave the house whenever he chose. He went to a day centre four days a week and a hydrotherapy pool on the fifth. He also went out to a club, the pub and the shops, and saw his mother regularly at the house, the day centre and her home. He could walk short distances but needed a wheel chair to go further. He also required prompting and help with all the activities of daily living, getting about, eating, personal hygiene and continence. He wore continence pads. Because of his history of pulling at these and putting pieces in his mouth, he wore a “body suit” of all-in-one underwear which prevented him getting at the pads. Intervention was also needed to cope with other challenging behaviours which he could exhibit. But he was not on any tranquillising medication.
  1. By the time of the final hearing before Baker J in April 2011, the principal issue was whether these arrangements amounted to a deprivation of liberty. Baker J held that P was completely under the control of the staff at Z House, that he could not “go anywhere, or do anything, without their support and assistance” (para 59). Further, “the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty” (para 60). Nevertheless it was in his best interests for those arrangements to continue: [2011] EWHC 1330 (Fam).

 

 

That decision was reversed by the Court of Appeal

 

The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty: [2011] EWCA Civ 1257, [2012] PTSR 1447. Munby LJ, who delivered the leading judgment with which Lloyd and Pill LJJ agreed, developed the concept of “relative normality” adopted in P and Q, and considered it appropriate to compare P’s life, not with that which he had enjoyed before when living with his mother, but with that which other people like him, with his disabilities and difficulties, might normally expect to lead. As Lloyd LJ put it, “It is meaningless to look at the circumstances of P in the present case and to compare them with those of a man of the same age but of unimpaired health and capacity. . . . the right comparison is with another person of the same age and characteristics as P” (para 120).

 

 

This concept of ‘relative normality’ or ‘what might be a deprivation of liberty for one person might not be for another’ really lays at the heart of these appeals to the Supreme Court.  In essence, is whether someone is deprived of liberty an OBJECTIVE test, or a SUBJECTIVE test?

 

There is an excellent history of how the “deprivation of liberty” legislation came about in Lady Hale’s judgment, well worth a read.

 

There were a category of people who weren’t detained under the Mental Health Act, or under criminal legislation, but who were being effectively detained because they lacked the capacity to say “I want to leave” or that if they tried to leave weren’t allowed to do so.

 

This came to a head with a man named L, who took his case up to the House of Lords. R v Bournewood Community and Mental Health NHS Trust, ex p L [1999] 1 AC 458.  He had been living with foster carers, became agitated one day at a day care centre and was taken off to hospital, and the carers were not able to get him out. If he HAD been detained under any legislation, then the carers would have had access to legal routes to challenge the decision, but were left in a grey area where they and L seemed to have no rights at all.

 

The majority decision  of the House of Lords was that he had not been detained, and if he had been, it had been under the doctrine of necessity.

 

Lord Steyn disagreed, forcefully and  said

 

  1.  “Counsel for the trust and the Secretary of State argued that L was in truth always free not to go to the hospital and subsequently to leave the hospital. This argument stretches credulity to breaking point. The truth is that for entirely bona fide reasons, conceived in the best interests of L, any possible resistance by him was overcome by sedation, by taking him to hospital and by close supervision of him in hospital and, if L had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. The suggestion that L was free to go was a fairy tale.”

 

When the case went to the European Court of Human Rights, Lord Steyn was shown to be right, and went about his day without egg on his face.

 

  1. The case then went to the European Court of Human Rights as HL v United Kingdom (2004) 40 EHRR 761. The court agreed with Lord Steyn that HL had been deprived of his liberty. It found violations, both of the right to liberty, in article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and of the right of a detained person to speedy access to a court which can order his release if his detention is not lawful, in article 5(4). 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.
  1. Key passages from the judgment are these:

“89. It is not disputed that in order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance.

90. . . . . The majority of the House of Lords specifically distinguished actual restraint of a person (which would amount to false imprisonment) and restraint which was conditional upon his seeking to leave (which would not constitute false imprisonment). The court does not consider such a distinction to be of central importance under the Convention. Nor, for the same reason, can the court accept as determinative the fact . . . that the regime applied to the applicant (as a compliant incapacitated patient) did not materially differ from that applied to a person who had the capacity to consent to hospital treatment, neither objecting to their admission to hospital. The court recalls that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention, especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action.

91. . . . the court considers the key factor in the present case to be that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements from the moment he presented acute behavioural problems on 22 July 1997 to the date he was compulsorily detained on 29 October, 1997. . . .

Accordingly, the concrete situation was that the applicant was under continuous supervision and control and was not free to leave. Any suggestion to the contrary was, in the Court’s view, fairly described by Lord Steyn as ‘stretching credulity to breaking point’ and as a ‘fairy tale’.”

 

 

As a result, it became necessary for the UK to introduce a statutory mechanism to deal with people like L, and that mechanism was the deprivation of liberty powers within the Mental Capacity Act 2005

 

Deprivation of liberty is not permitted under the Act save in three circumstances: (i) it is authorised by the Court of Protection by an order under section 16(2)(a); (ii) it is authorised under the procedures provided for in Schedule A1, which relates only to deprivations in hospitals and in care homes falling within the meaning of the Care Standards Act 2000 (see Schedule A1, para 178); (iii) it falls within section 4B, which allows deprivation if it is necessary in order to give life sustaining treatment or to prevent a serious deterioration in the person’s condition while a case is pending before the court.

 

Lady Hale goes on to say that the safeguards have the appearance of bewildering complexity   (only the appearance?)  and a few High Court Judges, notably Peter Jackson J have remarked in judgments that the law on deprivation of liberty has become so complex that nobody can understand it, least of all the relatives or carers of the vulnerable people who need to be safeguarded by it.

 

 

Let’s get on with the central argument

 

  1. The first and most fundamental question is whether the concept of physical liberty protected by article 5 is the same for everyone, regardless of whether or not they are mentally or physically disabled. Munby LJ in P’s case appears to have thought that it is not, for he criticised the trial judge for failing to grapple with the

“question whether the limitations and restrictions on P’s life at Z house are anything more than the inevitable corollary of his various disabilities. The truth, surely, is they are not. Because of his disabilities, P is inherently restricted in the kind of life he can lead. P’s life, wherever he may be living, whether at home with his family or in the home of a friend or in somewhere like Z House is, to use Parker J’s phrase…, dictated by his disabilities and difficulties” (para 110).

This view has been confirmed by the rejection in Austin v United Kingdom (2012) 55 EHRR 14, para 58, with specific reference to the care and treatment of mentally incapacitated people, of any suggestion by the House of Lords in Austin v Comr of Police of the Metropolis [2009] AC 564 that a beneficial purpose might be relevant (and see also MA v Cyprus (Application No 41872/10), 23 July 2013 and Creanga v Romania (2013) 56 EHRR 11).

  1. The answer given by Mr Richard Gordon QC, who appears instructed by the Official Solicitor on behalf of all three appellants, is that this confuses the concept of deprivation of liberty with the justification for imposing such a deprivation. People who lack the capacity to make (or implement) their own decisions about where to live may justifiably be deprived of their liberty in their own best interests. They may well be a good deal happier and better looked after if they are. But that does not mean that they have not been deprived of their liberty. We should not confuse the question of the quality of the arrangements which have been made with the question of whether these arrangements constitute a deprivation of liberty.

 

 

To be honest, you can just assume that I am saying “hear hear” at most paragraph breaks from here on in. But hell yeah.

 

  1. Allied to the “inevitable corollary” argument it might once have been suggested that a person cannot be deprived of his liberty if he lacks the capacity to understand and object to his situation. But that suggestion was rejected in HL v United Kingdom. In any event, it is quite clear that a person may be deprived of his liberty without knowing it. An unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty. A mentally disordered person who has been kept in a cupboard under the stairs (a not uncommon occurrence in days gone by) may not appreciate that there is any alternative way to live, but he has still been deprived of his liberty. We do not have any difficulty in recognising these situations as a deprivation of liberty. We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty.
  1. The whole point about human rights is their universal character. The rights set out in the European Convention are to be guaranteed to “everyone” (article 1). They are premised on the inherent dignity of all human beings whatever their frailty or flaws. The same philosophy underpins the United Nations Convention on the Rights of Persons with Disabilities (CRPD), ratified by the United Kingdom in 2009. Although not directly incorporated into our domestic law, the CRPD is recognised by the Strasbourg court as part of the international law context within which the guarantees of the European Convention are to be interpreted. Thus, for example, in Glor v Switzerland, Application No 13444/04, 30 April 2009, at para 53, the Court reiterated that the Convention must be interpreted in the light of present-day conditions and continued:

“It also considers that there is a European and Worldwide consensus on the need to protect people with disabilities from discriminatory treatment (see, for example, Recommendation 1592 (2003) towards full inclusion of people with disabilities, adopted by the Parliamentary Assembly of the Council of Europe on 29 January 2003, or the United Nations Convention on the Rights of Persons with Disabilities, which entered into force on 3 May 2008).”

 

 

So, there isn’t a different test about whether someone’s liberty is being deprived because of the circumstances of that individual   (that might go to the later question of whether the deprivation is justified or justifiable, but it is a straight factual decision – EVERYONE has the right not to be deprived of their liberty, and you don’t lose that right just because you are autistic or vulnerable in other ways. We certainly don’t compare sedating a vulnerable person and preventing them from leaving with putting a seatbelt on a wriggling child in the back of a car.    (Or at least, we don’t any more, that comparison was made in one of these Deprivation of Liberty – DoLS cases)

 

Second question then, if deprivation of liberty is a factual question, what are the characteristics that decides whether someone is, or is not being deprived of their liberty?

 

The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev, paras 117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state. Components (b) and (c) are not in issue here, but component (a) is.

 

 

  1. In none of the more recent cases was the purpose of the confinement – which may well have been for the benefit of the person confined – considered relevant to whether or not there had been a deprivation of liberty. If the fact that the placement was designed to serve the best interests of the person concerned meant that there could be no deprivation of liberty, then the deprivation of liberty safeguards contained in the Mental Capacity Act would scarcely, if ever, be necessary. As Munby J himself put it in JE v DE [2007] 2 FLR 1150, para 46:

“I have great difficulty in seeing how the question of whether a particular measure amounts to a deprivation of liberty can depend upon whether it is intended to serve or actually serves the interests of the person concerned. For surely this is to confuse . . . two quite separate and distinct questions: Has there been a deprivation of liberty? And, if so, can it be justified?”

 

 

ie, something doesn’t cease to be a deprivation of liberty just because there are good reasons for it  – what you have there is a deprivation of liberty which is justified, and the Court can sanction it.

 

 

  1. In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.
  1. Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.
  1. For that reason, I would reject the “relative normality” approach of the Court of Appeal in the case of P [2012] PTSR 1447, where the life which P was leading was compared with the life which another person with his disabilities might be leading

 

 

 

  1. P, MIG and MEG are, for perfectly understandable reasons, not free to go anywhere without permission and close supervision. So what are the particular features of their “concrete situation” on which we need to focus?
  1. The answer, as it seems to me, lies in those features which have consistently been regarded as “key” in the jurisprudence which started with HL v United Kingdom 40 EHRR 761: that the person concerned “was under continuous supervision and control and was not free to leave” (para 91). I would not go so far as Mr Gordon, who argues that the supervision and control is relevant only insofar as it demonstrates that the person is not free to leave. A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty. Indeed, that could be the explanation for the doubts expressed in Haidn v Germany.
  1. The National Autistic Society and Mind, in their helpful intervention, list the factors which each of them has developed as indicators of when there is a deprivation of liberty. Each list is clearly directed towards the test indicated above. But the charities do not suggest that this court should lay down a prescriptive list of criteria. Rather, we should indicate the test and those factors which are not relevant. Thus, they suggest, the person’s compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant. For the reasons given above, I agree with that approach

 

 

 

You are looking for  – is a person under continuous supervision and control, are they free to leave.

 

It is NOT relevant that the person is complying or not objecting.

 

It is NOT relevant that a person in similar circumstances to this person would have the same sort of placement or restrictions

 

It is NOT relevant that the reason for the restrictions is to protect the person or that it is for their own good   (that comes into the second stage – is the deprivation justifiable)

 

 

54. If the acid test is whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives, then the truth is that both MIG and MEG are being deprived of their liberty. Furthermore, that deprivation is the responsibility of the state. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions.

 

And on P

 

  1. In the case of P, the Court of Appeal should not have set aside the decision of the judge for the reasons they gave. Does it follow that the decision of the judge should be restored? In my view it does. In paragraph 46 of his judgment, he correctly directed himself as to the three components of a deprivation of liberty derived from Storck; he reminded himself that the distinction between a deprivation of and a restriction of liberty is one of degree or intensity rather than nature or substance; and he held that “a key factor is whether the person is, or is not, free to leave. This may be tested by determining whether those treating and managing the patient exercise complete and effective control of the person’s care and movements” (para 46(5)). It is true that, in paragraph 48, he summarised the further guidance given by the Court of Appeal in P and Q, including the relevance of an absence of objection and the relative normality of the person’s life, which in my view are not relevant factors. But when he considered the circumstances of P’s life at the Z house, he remarked (para 58) upon the very great care taken by the local authority and the staff of Z House to ensure that P’s life was as normal as possible, but continued (para 59):

“On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasionally aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at time physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained.”

In my view, in substance the judge was applying the right test, derived from HL v United Kingdom, and his conclusion that “looked at overall, P is being deprived of his liberty” (para 60) should be restored.

 

 

And in conclusion Lady Hale says

 

Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us.

 

 

 

As I said at the outset, the Supreme Court was unanimous that P’s liberty had been deprived, but were 4-3 split on MIG and MEG, the majority agreeing with Lady Hale that their liberty had been deprived.

 

 

The dissenting views were in very broad terms based on agreement with this proposition by Parker J in the original decision on MIG and MEG

 

  1. 107.                        “225. Freedom to leave has to be assessed against the background that neither wants to leave their respective homes, there is no alternative home save that of their mother where neither wishes to live, and neither appears to have the capacity to conceptualise any alternative unfamiliar environment. I have been told and I accept that if the local authority felt that either was actively unhappy where they were placed, then other arrangements would be made.

226. In my view it is necessary to analyse what specific measures or restraints are in fact required. …”

 

And that

 

nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty. I am not persuaded that the ECtHR would so hold. A more measured conclusion would be that MIG’s liberty was interfered with and not that she had been deprived of her liberty. The same is true of MEG.

 

 

 

I am aware, in conclusion, that I have devoted far more time to the majority judgment and lead judgment of Lady Hale than to the dissent; an analysis of the nuances between them is probably beyond the scope of this blog and I’ll leave it to specialists like Lucy Series over at The Small Places blog. 

 

 

[Lucy hasn’t written on it yet, but can I refer you to this brilliant, stirring and beautiful piece on the House of Lords dissection of the MCA  http://thesmallplaces.wordpress.com/2014/03/14/democracy-in-action/

 

I wish that I could write with an ounce of Lucy’s passion – she’s the sort of writer that makes me want to man the barricades. If, as the House of Lords hint, there should be some sort of monitoring/oversight/scrutiny/guidance body other than the Courts overseeing the MCA, Lucy should be on it ]

 

Plus, as I have not even attempted to disguise during this piece, I wholly agree with Lady Hale’s determination.

 

It may well be that there are far more people than the current 11,800 DoLs applications as a result of this decision. Well, so be it. For me, that is more people whose liberty is being deprived having the opportunity to challenge and test that before the Courts, rather than workers on the ground deciding that they aren’t being deprived of their liberty because the restrictions are right for ‘that sort of person’ and ‘for their own good’

 

Maybe the number of applications will break the system. Well, then the system needs to be broken and rebuilt.  Because of the extreme vulnerability of people like P and MIG and MEG, we should err on the side of extreme caution when protecting their rights.

 

 

As to the children and secure accommodation orders approach, it might be worth noting Lord Kerr’s observations (this one of the majority judgments)

 

  1. The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place.
  1. All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are – and have to be – applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is – and must remain – a constant feature of their lives, the restriction amounts to a deprivation of liberty.
  1. Very young children, of course, because of their youth and dependence on others, have – an objectively ascertainable – curtailment of their liberty but this is a condition common to all children of tender age.  There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting.  A comparator for a young child is not a fully matured adult, or even a partly mature adolescent.  While they were very young, therefore, MIG and MEG’s liberty was not restricted.  It is because they can – and must – now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty.

 

So in order to ascertain whether a deprivation of liberty is occurring you are looking at whether the restrictions being put on THIS child are comparable to that of another child of similar age  – of course carers and parents put different restrictions on an 8 year old than a 15 year old, and it is nonsense to say that the 8 year old’s liberty is being deprived as a result of not having the same freedoms as a 15 year old.  But if a particular 15 year old is having restrictions that are over and above what an average 15 year old might be allowed, then the question might arise.  It is important to note that whilst Lord Kerr is tolerating a degree of subjectivity, he is not saying that the test is completely subjective – the comparator is an average child of this age, not a child who has the same sort of problems, or behaviours, or vulnerabilities of this child.

 

 

For example

 

Most 14 year olds wouldn’t be allowed to leave their home at 2.00am, so a foster carer doing the same won’t be depriving the child of their liberty.

 

Most 14 year olds have had the experience of being ‘grounded’ for bad behaviour and having a period of time in which they aren’t able to go out with their friends, or use the computer or similar, so a foster carer doing the same isn’t depriving a child of their liberty

 

However, most 14 year olds aren’t told that they can never leave the home except under adult supervision, or have their door locked at night, so that would be a deprivation of liberty if it happened to a child in foster care.

Manuela Sykes

 

Manuela Sykes, from what I have read about her, sounds like an amazing woman. I hope that her actions in this case make a difference for others like her in the future.

http://www.bailii.org/ew/cases/EWHC/COP/2014/B9.html

Lucy Series over at The Small Places has written an amazing and moving article about this woman, and it is far better than anything that I will manage, so go and read that

http://thesmallplaces.blogspot.co.uk/2014/02/i-was-ever-fighter-so-one-fight-more.html

Manuela was 89 and suffered from dementia. It was considered by Westminster that she could not be kept safe in her own home, so they placed her in a secure home and (very commendably) made an application to the Court of Protection for authorisation of Deprivation of Liberty  (making that application allowed Manuela to be represented and to challenge that and made it a judicial decision rather than an administrative one. That was a damn fine thing to do, well done Westminster)

District Judge Eldergill decided the case, and I would like to say that it is a model judgment – I hope it blazes a trail that others will follow.  (Justice Jackson decided a case on a similar rationale in 2013, a judgment I praised highly at the time)

Ms S has had a dramatic life, and the drama is not yet over.

She has played a part in many of the moral, political and ideological battles of the twentieth century. A vegetarian from an early age; a lifelong feminist and campaigner for women’s rights; a Wren in the Fleet Air Arm; a committed Christian; a political activist who stood for Parliament; a councillor on the social services committee of the local authority that now authorises her deprivation of liberty; the editor for 40 years of a trade union newspaper; a helper of homeless people and an advocate for them; and a campaigner for people with dementia, from which condition she now suffers herself.

The court is not concerned with her particular political views, whether they are left or right of centre, and nor is it concerned with her religious views. These are matters for her. Their main relevance to this court is that by nature she is a fighter, a campaigner, a person of passion. She appears always to have placed herself in the public eye, in the mainstream, rather than ‘far from the madding crowd,’ debating the issues of the day, causing, accepting and courting controversy.

In 2006, she was diagnosed with dementia and appears to have responded to that in the same forthright manner with which she has approached everything else in her life. She participated in a dementia project and campaigned for the rights of dementia sufferers, in particular older women. In December 2006, she made a living Will. Some time later, in 2011, she appointed an attorney for property and affairs, a person she trusted to act for her in accordance with guidance set out in her LPA (attorney) document.

I DECLARE THAT if at any time any of the following circumstances exist, namely:

1 I suffer from one or more of these conditions: ….

1.5 senile or pre-senile dementia (e.g. Alzheimer’s disease); ….

2 I have become unable to participate effectively in decisions about my medical care; and

3 Two independent doctors (one a consultant) are of the opinion, having examined in full my circumstances and prognosis, that any of the following apply:

3.1 there is no reasonably likelihood of substantial recovery from illness involving severe pain and distress and from which it is likely I will die in the near future; or

3.2 I am in a state of unconsciousness or coma and it is unlikely that I will regain consciousness; or

3.3 I suffer from a mental illness resulting in me having a very limited awareness of my surrounding environment and an inability to perform basic tasks and from which it is unlikely that I will recover.

THEN AND IN THOSE CIRCUMSTANCES my directions are as follows:

1 That I am not to be subjected to any medical intervention or treatment aimed at prolonging or sustaining my life;

2 That I consent to the control of physically distressing symptoms…by appropriate and aggressive palliative care even if such care is likely to have the effect of shortening my life ….

That document proved to be very important, and I hope that this case will highlight how important such documents can be in protecting your wishes – amongst other things, it ensured that Manuela’s desire that her name should be published if she ever came before the Court of Protection meant that I can name her, and gives a much greater chance that the mainstream press will follow her story.

On the issue of capacity, the Judge found that Manuela, did, as a result of her dementia lack capacity to make decisions for herself about where she should live

Effect of this dementia on MS’s capacity to make the relevant decisions

Ms S is intelligent, articulate and knowledgeable. She has no difficulties expressing herself. That her core personality is intact is clearly demonstrated by her continuing and passionate commitment to the causes to which she has dedicated her life. Her weight is healthy, physically she looks many years younger and fitter than her chronological age, she presents well and her care is good. There are, therefore, currently no signs of neglect or refusal of care.

Unfortunately, this is not the whole picture. Her short-term memory is very severely impaired. Because she is so intelligent and articulate, this may not be immediately apparent from a brief superficial exchange.

Following an examination on 2 December 2013, Dr Barker reported that her short-term memory is less than one minute. It is this inability to retain information which lies at the root of many of her recent difficulties. The consequence is that she is unable to retain, nor therefore weigh, information (highly) relevant to the decisions about the treatment, care and support she requires.

In particular, she cannot recall the circumstances and behaviour that caused others to remove her from her own home to hospital and to transfer her to residential care. Lacking this information, she does not accept that she had significant problems at home, nor therefore that she requires a significant package of care and support. Nor can she appreciate that, without additional care, it is likely that the problems will be the same as before, because the situation is the same as before. It is recorded that she has a tendency to become defiant when these issues are raised. This is logical and understandable because, unless one has a memory of the previous difficulties, the professional view must appear patronising and intrusive, and the problems made-up or grossly exaggerated.

Sadly, the preponderance of the evidence requires a conclusion that MS lacks capacity to make the relevant decisions for herself. She frequently asks, ‘Why am I here’ because she cannot remember how her situation has arisen, nor therefore understand and weigh the reasonably foreseeable consequences of accepting or refusing necessary care or support.

To summarise, I accept the professional and family view that she lacks the capacity to make these decisions for herself because her dementia has affected her ability to understand, retain and weigh the relevant information. It is more than simply an unwise decision that she chooses to make, if free to do so.

I admire District Judge Eldergill immensely for being honest about the dilemma before the Court – there was no solution that would keep Manuela Skyes HAPPY AND SAFE – there was a choice to be made between the two.

Having summarised the legal framework, I must consider MS’s best interests in the context of it.

There is, of course, no solution.

In the suggested care settings the situation will be less than optimal.

None of the options canvassed with the court will provide Ms S with security, safety, liberty, happiness, an absence of suffering and an unrestricted home life. These different considerations cannot all be reconciled and promoted within a single setting, and the realisation of some of them must inevitably involve the sacrifice of others. The task is to choose which of these legitimate values and aims to compromise and which to give expression to, in her best interests.

The Judge addressed how Manuela Sykes expressed wishes fed into the best interests decision – underlining is mine – expect to see this quoted fairly often

S’s wishes and feelings are important factors to be taken into account when reaching my decision: after all, why would anyone wish someone to be cared for otherwise than in accordance with their wishes if they can be adequately cared for in accordance with their wishes?

In taking her wishes and feelings into account, I have considered the case of ITW v Z, [19] the degree of incapacity, the strength and consistency of her views, the likely impact of knowing that her wishes and feelings are being overridden (if my decision is contrary to her wishes), the extent to which her wishes and feelings are rational, sensible, responsible and pragmatically capable of sensible implementation, and the extent to which her wishes and feelings can properly be accommodated within the court’s overall assessment of her best interests.

I have noted the consistency of her wishes and feelings; the effect on her mental health, happiness and well-being of the continued loss of her home; her attitude towards institutional life and the importance to her of her freedom. She values her privacy and the sense of security at home.

MS is still able to appreciate and express the value of being at liberty and being allowed autonomy. [20] The importance of individual liberty is of the same fundamental importance to incapacitated people who still have clear wishes and preferences about where and how they live as it is for those who remain able to make capacitous decisions. This desire to determine one’s own interests is common to almost all human beings. Society is made up of individuals, and each individual wills certain ends for themselves and their loved ones, and not others, and has distinctive feelings, personal goals, traits, habits and experiences. Because this is so, most individuals wish to determine and develop their own interests and course in life, and their happiness often depends on this. The existence of a private sphere of action, free from public coercion or restraint, is indispensable to that independence which everyone needs to develop their individuality, even where their individuality is diminished, but not extinguished, by illness. It is for this reason that people place such weight on their liberty and right to choose.

Any written statements made by her when she had capacity

Ms S’s living Will and the guidance in her Lasting Power of Attorney are written statements which I have considered and taken into account. They indicate a wish to remain in her own property for as long as ‘feasible’ and in general that she prioritises quality of life over the prolongation of life (see §5).

Relevant beliefs and values

The law requires objective analysis of a subject not an object.

Ms S is the subject.

Therefore, it is her welfare in the context of her wishes, feelings, beliefs and values that is important. This is the principle of beneficence which asserts an obligation to help others further their important and legitimate interests. In this important sense, the judge no less than the local authority is her servant, not her master.

Applauds

The available evidence indicates that Ms S’s relevant beliefs and values include a very strong belief in and commitment to the value of open public debate and social services for those who need them.

She has unambiguous opinions about what is right and what is wrong, and has spent much of her life airing those opinions. It seems plain that it is fundamental to her nature and purpose in life that she is free to air and promote her political and personal values through discussion, marches, rallies, newspapers, campaigning and other forms of political activity.

She has a strong will to change the world, to influence others and to draw their attention to the plight of those she believes need and deserve more care, such as the homeless and people experiencing dementia. She also has a strong desire to promote the interests of those she believes are politically disadvantaged: women as compared with men; the homeless compared to those with homes; the older and more frail compared with the younger and fitter; and, to use her term, the ‘double whammy’ disadvantage of older women.

These political and personal values have a religious element, evident from her expressed religious beliefs and attendance at church services and Quaker meetings.

One thing she seems never to have lacked is courage and a willingness to place herself at the centre of public debate and attention. She stood in two Parliamentary by-elections and campaigned to have Buckingham Palace rated. Indeed, the impression is that she relishes being at the centre of public events because it means that she is exerting influence; is being heard; is affecting the outcome of social issues important to her.

All of this is highly relevant when it comes not only to the court’s decision concerning her care package but also, and perhaps even more so, the decision whether she should remain anonymous or be identified as the person at the heart of her case. What she has done with her life indicates that she has always wanted to be ‘someone’, to have influence.

Realistically, this is her last chance to exert a political influence which is recognisable as her influence. Her last contribution to the country’s political scene and, locally, the workings and deliberations of the council and social services committee which she sat on.

On a personal level, her strong sense of self, her belief in the importance of the individual, her desire for freedom and autonomy are magnetic factors, operating at positive and negative poles by providing both the pull of freedom and the counterforce of resistance to outside care.

It is undoubtedly hyperbole to suggest that Manuela Sykes is the Rosa Parks of dementia, but what the hell – that is how I feel about her at this moment.

It is my view that it is in Ms S’s best interests to attempt a one-month trial of home-based care.

Very helpfully, at the end of the final hearing the local authority told me that if I rejected its primary case, and decided on such a trial, they would put a transitional plan in place to enable the trial to proceed.

The judgment was published, and Manuela’s name not anonymised – in accordance with what she had asked for. The Judge does make this very good observation about “secret Courts” though, and I think it has wider application

Under the Court of Protection Rules 2007, the general rule is that a hearing is to be held in private.

This reflects the personal, private, nature of the information which the court is usually considering.

That is not the same as being secretive; a GP is not a ‘secret doctor’ because the press have no unqualified right to be present during patient consultations or to report what is said. All citizens have a right to expect that information about them will be held in confidence by their doctors and social workers, and to expect that any overriding, future, need to breach this right will go no further than necessary, and only exceptionally involve seeing it in national newspapers.

Everyone benefits from, and enjoys, this level of privacy and therefore there is a strong public interest in privacy. Not to allow an incapacitated person the same general right to privacy or confidentiality that we claim it for ourselves would be to discriminate against them because of their mental illness and vulnerability.

The one, highly important, difference is that whilst in an ideal world incapacitated people would have exactly the same right to privacy and confidentiality that the rest of us enjoy, when judges make decisions for them this brings into play the competing consideration that the public ought to know how courts of law function and administer justice: what kinds of decisions they are making, the quality of those decisions, and so forth.

While it is sometimes necessary to distinguish between ‘the public interest’ and ‘matters which the public finds interesting,’ there is a high public interest in seeing that hearings which determine the rights of incapacitated people, and their families, are fair and properly administered.

[You don't often get cases where everyone involved comes out of it well, but this is one]

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