RSS Feed

Tag Archives: deprivation of liberty

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]

There are compelling reasons of public policy why ‘sham marriages’ are declared non-marriages

 

This is the Court of Protection decision in A Local Authority v SY 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/3485.html

Much of the case involved SY’s difficulties with capacity and plans for her future, which involved her living in a care home – having not consented, this was being treated as a deprivation of liberty (I add in parenthesis that I am pleased to see the Courts taking a common sense pragmatic approach on someone having to live in a home when they don’t consent as being a Deprivation of Liberty DoLS, as I think that was always the spirit of the Mental Capacity Act 2005, though we seem to have drifted from that in the short years the Act has existed)

An additional issue, however, was that SY had entered into a marriage to a man TK.   I have to say, the man TK, doesn’t come out of this well  (I have reordered the judgment here, simply because it scans better in this particular context)

 

    1. TK was born in Pakistan. He came to the United Kingdom on 7 September 2009 as a student. His application to continue his studies was refused and his appeal was dismissed on the basis of a tribunal finding that he had submitted two forged documents and had attempted to deceive the immigration authorities. His rights of appeal were exhausted in June 2011. It is in this context that he began a relationship with SY in August 2011.

 

    1. On or around 15 June 2012 TK was arrested for immigration offences and detained by the UK Border Agency pending his deportation. He claimed asylum on the basis that he feared he would be killed by his family who disapproved of his marriage to a white British woman, namely SY.

 

    1. Following an adult case conference on 20 June 2012, SY moved to her current placement on 27 June 2012. The following day an associate of TK attended the placement and attempted to gain entry for the purpose of seeking SY’s signature on a document allegedly prepared to assist TK with his asylum claim. In light of the risks to SY of harm and exploitation, an urgent authorisation was issued and then a standard authorisation to deprive her of her liberty at the placement was granted.

 

  1. On 17 July 2012 TK’s appeal against the refusal to grant him asylum was dismissed on all grounds. His relationship with SY lay at the heart of the case he sought to mount. The tribunal judge found that “The relationship, if there is one, does not have the necessary qualities of commitment, depth and intimacy which would be necessary to demonstrate family life for the purposes of article 8…”. He later observed that “viewed objectively her best interests are likely to be served by there being no further interference by [TK] and his friends with the care arrangements which social services have put in place”. He was found not to have given a truthful account in his evidence and not to be a credible witness.

 

    1. On 23 January 2012 her then carers notified the authority that she had returned from TK’s property in a nearby city and told them that TK had locked her in his house when he went to work, she and TK had been visited by a ‘lawyer’ about a housing application, that they were to marry in six months time and that TK had taken her to a registry office to obtain a copy of her birth certificate. The carers reported they had overheard TK speaking to SY on the telephone in a controlling and aggressive manner.

 

    1. Social workers attempted to undertake a capacity assessment but SY refused to co-operate. For the same reasons a clinical psychologist, Dr. C, was unable to assess formally her capacity to litigate and/or to make decisions as to residence, contact, marriage and sexual relations but concluded it was unlikely she was able to do so.

 

  1. On 24 May 2012 the authority and the police told TK that SY had a learning disability and was unlikely to have capacity to consent to sexual relations and marriage and that an offence would be committed. Notwithstanding this advice, on 10 June 2012 TK and SY entered into a purported Islamic marriage ceremony at his home.

 

So, the issue in the case was whether the Court of Protection should make a declaration that this marriage was not recognised, as being one that SY had no capacity to consent to.  The eagle-eyed or attentive reader may recall that there was a blog post recently about a Holman J decision, in which he held that the Court had no jurisdiction to make such a declaration  – the difference HERE is that the unfortunate wife in that case COULD have made her own application for nullity but was vulnerable and unwilling, which was what caused the bar to the declaration. Here, there was no possibility that SY had the capacity to make an application in her own right, so the Court would have power to make the declaration.

(It isn’t QUITE as simple as that, because the marriage never purported to be a ceremony to which the Marriage Act applies, so the Court can’t use the powers under that Act – this was clearly an Islamic ceremony. So, to declare it a non-recognised marriage  involves the use of the inherent jurisdiction, and the Court needed to walk through very carefully the existing authorities,  hence the debate and determination below – underlining mine for emphasis)

Discussion – Declaration of Non-Marriage

    1. There is no provision in the 2005 Act to make a declaration in respect of the ceremony in which SY and TK participated on 10 June 2012.

 

    1. The issue is whether the Official Solicitor should make a freestanding application for a declaration or whether the court, of its own motion, should invoke the inherent jurisdiction of the High Court and make a declaration of non-marriage. The parties invite me to take the latter course.

 

    1. The ceremony was conducted at TK’s home by a Mr MA. He is not a registrar and the ceremony did not take place at an authorised place. A document entitled ‘Marriage Certificate according to Islamic Laws’ appears in the court bundle [A35].

 

    1. It is submitted by counsel for the authority and for the Official Solicitor that the ceremony failed to comply with essential requirements of the Marriage Acts 1947-1986 in that:

 

a. it was not conducted in a registered place; and

b. it was not conducted by a registrar or by a priest according to Anglican rites.

    1. Furthermore it is submitted that the evidence indicates that in all probability the ceremony was not intended to attract the status of a marriage under English law being a ceremony undertaken to create a marriage expressly according to Islamic laws.

 

    1. In A-M v. A-M (Jurisdiction: Validity of Marriage) [2001] 2 FLR 6, Hughes J. (as he then was) considered the status of an Islamic marriage ceremony conducted in England. He said, at paragraph 58,

 

“It is clear, however, that the present ceremony did not begin to purport to be a marriage according to the Marriage Acts, with or without fatal consequences. It was not conducted under the rites of the Church of England, nor was there ever any question of an application for, still less a grant of, a superintendent registrar’s certificate, and it was conducted in a flat which was clearly none of the places which were authorised for marriage. The ceremony was consciously an Islamic one rather than such as is contemplated by the Marriage Acts……It is not any question of polygamy which ipso facto takes this ceremony outside s. 11, but the fact that it in no sense purported to be effected accordingly to the Marriage Acts, which provide for the only way of marrying in England. …It follows that I hold that the 1980 ceremony is neither a valid marriage in English law nor one in respect of which jurisdiction exists to grant a decree of nullity”.

    1. The self-same facts and considerations apply in this case in relation to the ceremony conducted on 10 June 2012.

 

    1. In the case of Hudson v. Leigh (Status of Non-Marriage) [2009] 2 FLR 1129, a ceremony was undertaken in South Africa which the parties had deliberately modified to avoid strict compliance with local formalities. They intended a civil ceremony would be conducted some weeks later in England, but it never took place. Bodey J. held, at paragraphs 80-84,

 

“As to Mr Leigh’s amended petition, Mr Mostyn has abandoned the secondary prayer in it for a declaration that “…no marriage between the parties subsisted on the 23rd January 2004 or thereafter”. That had seemingly been inserted into the pleading by amendment and as an afterthought so as to try to bring Mr Leigh’s case into S55 (1) (c), as being ‘a declaration that the marriage did not subsist on a date so specified in the application’. I am clear that the making of such a declaration would have been wholly impermissible as being a device to get around S58 (5) (which outlaws any declaration that a marriage was at its inception void) and I would therefore have dismissed that prayer had it stood alone. There remains Mr Mostyn’s application for a declaration that the Cape Town ceremony did not effect a marriage at all….It goes without saying that, if appropriately worded, the mere dismissal of Miss Hudson’s petition for divorce and alternatively for nullity would inform any reasonably knowledgeable interested party that there was not a marriage between herself and Mr Leigh. There would indeed be nothing to prevent a specific recital to that effect. That would not be entirely satisfactory, however, since it would not theoretically bind third parties and problems might arise if either party wanted to marry here or abroad, or otherwise needed to demonstrate his or her status. A declaration, if permissible, would be in the public interest of creating certainty and would be beneficial and convenient for both parties. In my judgment, the making of such a declaration is not outlawed by S58 (5) if and for so long as it is made to declare that there never was a marriage, as distinct from being a declaration (which is not permitted) that a given marriage was void at its inception. When the facts dictate the latter (which, as found here, they do not) then the only route to resolution is nullity. Nor do I find persuasive Mr Le Gryce’s argument about the former practice of the ecclesiastical courts. For so long as the High Court has an inherent jurisdiction, as it does, and has the authority of the RSC to make free-standing Declarations in appropriate circumstances, then such jurisdiction needs within reason to be flexible and to move with the times. I cannot accept that it is stuck in the mid-19th century. Were it so, then countless orders must have been made (for example in the management of life-support systems) without jurisdiction. Accordingly I propose to make a Declaration that the Cape Town ceremony of 23.1.04 did not create the status of marriage as between Miss Hudson and Mr Leigh.”

    1. Bodey J., in a later case, considered the status of an Islamic marriage ceremony conducted in the ‘husband’s’ London flat in the presence of an imam. He held there had been a wholesale failure to comply with the formal requirements of English law and there was nothing that could be susceptible to a decree of nullity under s. 11 of the Matrimonial Causes Act 1973. He made a declaration of non-marriage: El Gamal v. Al Maktoum [2012] 2 FLR 387.

 

    1. On the basis of those authorities I am satisfied that the ceremony which took place between SY and TK on 10 June 2012 did not comply with the formal requirements of the Marriage Acts 1947-1986. I find it was a non-marriage.

 

    1. What is then to be done? The Official Solicitor on behalf of SY could make a freestanding application pursuant to the inherent jurisdiction of the High Court to seek a declaration of non-marriage. Alternatively, the court in these proceedings could, of its own motion, invoke the inherent jurisdiction and make a declaration of non-marriage.

 

    1. In the case of XCC v. AA and Others [2012] EWHC 2183 (COP), Parker J. was invited to make a declaration of non-recognition of a marriage within Court of Protection proceedings by invoking the inherent jurisdiction of the High Court. She said, at paragraphs 54 and 85,

 

“The protection or intervention of the inherent jurisdiction of the High Court is available to those lacking capacity within the meaning of the MCA 2005 as it is to capacitous but vulnerable adults who have had their will overborne, and on the same basis, where the remedy sought does not fall within the repertoire of remedies provided for in the MCA 2005. It would be unjustifiable and discriminatory not to grant the same relief to incapacitated adults who cannot consent as to capacitous adults whose will has been overborne…..I am satisfied that once a matter is before the Court of Protection, the High Court may make orders of its own motion, particularly if such orders are ancillary to, or in support of, orders made on application. Since the inherent jurisdiction of the High Court in relation to adults is an aspect of the parens patriae jurisdiction the court has particularly wide powers to act of its own motion.”

    1. I, respectfully, agree.

 

    1. Parker J. held that the provisions of the 2005 Act were not to be imported in to the inherent jurisdiction evaluation, the decision was not dictated only by considerations of best interests but public policy considerations were also relevant [paragraphs 56-57 and 71-76].

 

    1. It is plain on the facts of this case, especially taking account of the immigration judgment handed down on 17 July 2012 in respect of TK’s asylum appeal, that TK exploited and took advantage of SY for the purpose of seeking to bolster his immigration appeal and his prospects of being permitted to remain in this country. The ceremony he and SY engaged in on 10 June 2012 formed the bedrock of that objective.

 

    1. TK well knew that SY had learning difficulties and was a vulnerable young woman. He knew that the police and the care services were extremely concerned about his involvement with SY.

 

    1. I can reach no other conclusion than he deliberately targeted SY because of her learning difficulties and her vulnerability. The courts will not tolerate such gross exploitation.

 

    1. Fortunately, it would appear that TK’s involvement in SY’s life is not now causing her emotional distress or harm. It was, however, yet another abusive and exploitative episode in her life which could have had serious physical, emotional and psychological consequences for her.

 

  1. In my judgment it is important for SY that a declaration of non-marriage is made in respect of the June 2012 ceremony. There are also, in my judgment, compelling reasons of public policy why sham ‘marriages’ are declared non-marriages. It is vital that the message is clearly sent out to those who seek to exploit young and vulnerable adults that the courts will not tolerate such exploitation.

 

Over and above the facts of this case, and that judicial steer underlined above (which I suspect will be cited in many of these cases to come), the Court made some interesting observations about the capacity assessment.

 

    1. The assessment of capacity (COP 3) was completed by SY’s social worker, NU. It is a full, detailed and helpful assessment of SY’s capacity to make decisions as to her residence, contact with others, her care needs and to enter into a contract of marriage.

 

  1. I am told by counsel that it is more usual for the assessment of capacity to be undertaken by a medical practitioner or a psychiatrist. The assessment in this case demonstrates that an appropriately qualified social worker is eminently suited to undertake such capacity assessments. I commend the practice which I hope will be followed in appropriate future cases.

 

[I am not entirely sure how I feel about that – I represent and work with social workers and believe that those who work in adult social care do have the necessary expertise and skill to conduct such assessments and that they would strive to make them fair. However, it can be the case that the Local Authority take, and sometimes have to take, a line as to what they consider to be in the best interests of the person. It may be that such a role doesn’t sit entirely comfortably with conducting an assessment to decide whether a person is capable of exercising autonomy or should have decisions about their future made by the State in their ‘best interests’.  (I am not saying that there WOULD be bias or unfairness, but in law, the perception of bias can be as important as the actuality.  R v Sussex Justices being the lead on this – the law must not only be fair, it must be seen to be fair)

 

 

 

Deprivation of liberty and force-feeding

The Court of Protection grappled with a difficult issue in A NHS Trust v Dr A 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2442.html

Apologies in advance – this is a long article, it is complex and if you don’t do mental capacity or mental health law you probably don’t need to read it.

The facts of the case involved a Doctor who began manifesting erratic behaviour, for example insisting that anyone in the colour red was a member of the Iranian Secret Police and that a book he was writing disproving evolution would make him famous after his death. Dr A also went on hunger strike, following the confiscation of his passport by the UK Border Agency.

Although one expert was of the view that Dr A’s behaviour was all an attempt to apply pressure to reverse decisions about his asylum case, the vast majority of the experts considered that he had had a genuine breakdown of his mental health.

Without going into the details too much, the Court were satisfied that Dr A was suffering from a delusional disorder impairing the functioning of his brain affecting his ability to use or weigh up information relevant to his decision as to whether or not to accept nourishment.  (And thus in terms, that he did not have the capacity to decide to refuse nourishment)

The Court then weighed up whether it was in Dr A’s best interests to receive nutrition by way of force feeding or not  – this is not a simple decision, and a number of competing factors were weighed up and considered. The Court determined that it would be in Dr A’s best interests to receive nutrition by way of nasogastric tube feeding.

However, an issue then arose about whether, having made the declaration that Dr A lacked capacity, and that force-feeding would be in his best interests, whether the Court actually had jurisdiction to compel it.

  1. I therefore conclude that it is in Dr. A’s best interests for this court to make an order that permits the forcible administration of artificial nutrition and hydration.
  1. I now turn to consider the power of the court to make the order in his best interests. The question emerged in the course of argument as to whether, in the circumstances of this case, the court had the power under the MCA to make an order for the forcible feeding of Dr. A. Subsequently, the investigation and analysis of that question has taken a considerable amount of time, both for the parties’ legal representatives and the court. It is alarming to find that the legal position on this fundamental issue is far from straightforward

 

The fact that the next part of the judgment is headed “Eligibility – a new gap?” will make practitioners in this field very nervous – the last gap went all the way to Europe, and ended up with the Mental Capacity Act and all of the impenetrability that the MCA has become in practice.

The Court had to look at whether force-feeding was a deprivation of liberty, and concluded that yes it was. This may well turn out to be important in other cases involving for example political protests,  Brady-type efforts to end ones own life or persons with eating disorders.

When determining whether the circumstances amount objectively to a deprivation of liberty, as opposed to a mere restriction of liberty, the court looks first at the concrete situation in which the individual finds himself. In this case, there is no dispute that subjecting Dr. A. to forcible feeding amounts to a deprivation of liberty. In order to feed him he will be physically restrained by NHS staff against his will while a nasogastric tube is inserted. The restraint continues to prevent him removing the tube. On occasions, in this process, he is sedated. He is not allowed to leave the hospital. The staff are effecting complete control over his care, treatment and movements, and, as a result, he loses a very significant degree of personal autonomy.

The issue then was whether the Court had powers under the MCA to make an order that had the effect of depriving Dr A of his liberty. This becomes very complex, very quickly, even by MCA standards.

  1. 16A(1) of the MCA are clear:

“If a person is ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty.”

And then a long trawl through Schedule 1A of the MCA which sets out when a person is ineligible to be deprived of liberty under the MCA shows that the MCA can’t be used to deprive a person of their liberty if they are being, or are capable of being , detained under the Mental Health Act.

In the light of the evidence suggesting that the criteria set by section 2 MHA might be met in respect of Dr. A., it seemed to me that it was at least arguable that he was “within the scope of the MHA” and therefore, by virtue of paragraph 5 of schedule 1A of the MCA, ineligible to be detained under the MCA.

The hospital actually detained Dr A under s3 of the Mental Health Act during the interim period between the Judge asking trial counsel how the heck this could be fixed and them coming up with solutions. Did that help?

  1. The consequence of placing Dr. A under section 3 was, however, merely to accentuate the difficulties about the application of section 16A because, although removing him from the ambit of case E of schedule 1A, it put him squarely within case A. On any view, he is both subject to a “hospital treatment regime” within the meaning of paragraph 8(1) of the schedule and also detained in a hospital under that regime. In those circumstances he is, prima facie, ineligible to be deprived of his liberty under the MCA and the Court of Protection may not include in any welfare order any provision which authorises him to be so deprived.
  1. Put boldly in that way, it will be seen that this might make it impossible for someone to be treated in a way that is outwith his “treatment” under the MHA if that treatment involves a deprivation of liberty. To take a stark example: if someone detained under section 3 is suffering from gangrene so as to require an amputation in his best interests and objects to that operation, so that it could only be carried by depriving him of his liberty, that process could not prima facie be carried out either under the MHA or under the MCA. This difficulty potentially opens a gap every bit as troublesome as that identified in the Bournewood case itself.

 

So, you can provide treatment to a person who is, or is capable of being, detained under the Mental Health Act, in accordance with the MHA  BUT if the treatment isn’t capable of being provided under the MHA you cannot then turn to the MCA as being a vehicle for providing that treatment even if the person does not have capacity and the Court has declared that the treatment is in their best interests, because of Schedule 1 A of the MCA.

Sorry, this is going to be  complex, it takes about five pages of going through the Act itself to get to that point – the Judge was so exasperated by what he described as  the ambiguity, obscurity and possible absurdity of the legislation, that he authorised counsel to look at the Parliamentary debates in a Pepper v Hart exercise to see if this idiocy was what Parliament had intended, or whether it was a cock-up.  (Judges hardly ever embark on the exercise of looking at what Parliament said about the construction of the Act  – it’s that Otto von Bismarck  “laws are like sausages – it is better not to see them being made” thing)

  1. The Official Solicitor now suggests three solutions to the problem described above:

(1) The necessary feeding and associated measures can be taken under the MHA. There is therefore no need for an order under the MCA.

(2) If the necessary feeding and associated measures cannot be taken under the MHA, an order can still and should be made under the MCA interpreted in accordance with the Human Rights Act 1998.

(3) If the necessary feeding or associated measures cannot be taken under the MHA or the MCA, an order should be made under the High Court’s inherent jurisdiction.

I shall consider these options in turn.

Authorising the treatment under the Mental Health Act

Understandably, the Official Solicitor cited the Ian Brady case as authority for the suggestion that force-feeding can be authorised under the Mental Health Act.

This is the key passage in the Brady judgment that sanctioned his force-feeding under the MHA  (a decision that frankly, I found a bit ‘iffy’ at the time, going much further than traditional views that one can forcibly treat the mental disorder but not physical disorders under the MHA)

71.   “On any view, and to a high degree of probability, section 63 (MHA) was triggered because what arose was the need for medical treatment for the mental disorder from which the Applicant was and is suffering. The hunger strike is a manifestation or symptom of the personality disorder. The fact (if such it be) that a person without mental disorder could reach the same decision on a rational basis in similar circumstances does not avail the Applicant because he reached and persists in his decision because of his personality disorder.”

The medical evidence in this case did not back that up

In this case, therefore, the clinicians treating Dr. A. feel strongly that artificial nutrition and hydration and ancillary treatment are, on the facts of the case, treatment for a physical disorder, starvation and dehydration, and not for the underlying mental disorder. Dr. A. is not suffering from an eating disorder. Whilst feeding him may make him feel better, it is not treating him for a mental disorder as it would be were he suffering from anorexia nervosa.

  1. On this point I have found the views articulated by the treating clinicians, and in particular Dr. WJ, persuasive. She does not consider that the administration of artificial nutrition and hydration to Dr. A. in the circumstances of this case to be a medical treatment for his mental disorder, but rather for a physical disorder that arises from his decision to refuse food. That decision is, of course, flawed in part because his mental disorder deprives him of the capacity to use and weigh information relevant to the decision. The physical disorder is thus in part a consequence of his mental disorder, but, in my judgement, it is not obviously either a manifestation or a symptom of the mental disorder. This case is thus distinguishable from both the Croydon case and Brady.
  1. I also accept the submissions put forward by Miss Paterson, and acknowledged by the Official Solicitor, that it is generally undesirable to extend the meaning of medical treatment under the MHA too far so as to bring about deprivation of liberty in respect of sectioned or sectionable patients beyond what is properly within the ambit of the MHA. I recognise the need for identifying, where possible, a clear dividing line between what is and what is not treatment for a mental disorder within the meaning of the MHA; but I venture to suggest that in medicine, as in the law, it is not always possible to discern clear dividing lines. In case of uncertainty, where there is doubt as to whether the treatment falls within section 145 and section 63, the appropriate course is for an application to be made to the court to approve the treatment. That approach ensures that the treatment given under section 63 of the MHA will be confined to that which is properly within the definition of section 145 as amended. It would help to ensure that patients with mental disorders are, so far as possible, treated informally rather than under section. Finally, it ensures compliance with Article 8 and provides the patient with a more effective remedy than would otherwise be available, namely a forensic process to determine whether the treatment is in his best interests.
  1. I therefore decline to make a declaration that artificial nutrition and hydration can be administered to Dr. A. under the MHA

Authorising the treatment under the MCA, by interpreting it in light of the Human Rights Act

I liked this argument, it is clever. If the MCA as drafted, puts a Court in a position of not being able to protect the right to life of a person who the Court has determined does not have the capacity to refuse treatment which would save his life, the Court ought to interpret the MCA in such a way that it does NOT clash with the article 2 right to life. And using the powerful tool of s3 (1) Human Rights Act to do so

Under section 3(1) of the Human Rights Act:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

 

  1. The second basis on which the Official Solicitor invites the court to authorise the forcible feeding of Dr. A. is under section 16 of the MCA. He submits that the provisions of the MCA read in compliance with the Human Rights Act and the European Convention permit the court to take this course. Mr. Moon and Miss Street submit, first, that, so far as it is possible to do so, the MCA must be interpreted so as to be consistent with the best interests of the person lacking capacity (section 1(5) of the MCA). Unless the court authorises the forcible administration of artificial nutrition and hydration to Dr. A. he will die. The court is thus under an obligation to interpret its powers in a way that ensures his life is saved.
  1. It is submitted by Mr. Moon and Miss Street, however, that the obligations on the court go further. Under Article 2 of the European Convention of Human Rights “everyone’s rights to life shall be protected by law”. Amongst the duties imposed on the State by Article 2 is the so-called “operational duty” requiring the State in certain circumstances to take preventative measures to protect an individual whose life is at risk: Osman v. United Kingdom [1998] 29 EHRR 245.

 

 

But it is still No

  1. The course proposed by counsel, though in some ways attractive, involves reading into section 16A a provision that would have the effect of fundamentally altering its clear meaning. The scheme of the amendments to the MCA, introduced in 2007, is plain. In certain circumstances defined in schedule 1A, the MHA regime takes precedence over the MCA. No argument has been advanced which has persuaded me to disagree with the assessment of Charles J in Re GJ (supra) that the MHA has primacy over the MCA and, in particular, his observation at paragraph 96 of the judgment:

“Case A is a clear indication of the primacy of the MHA 1983 when a person is detained in hospital under the hospital treatment regime and it would seem that when it applies P cannot be deprived of liberty under the MCA in a hospital for any purpose.” [my emphasis]

In such circumstances, and notwithstanding the uncompromising words of Lord Nicholls quoted above, any court, particularly a Judge at first instance, must at least hesitate before reading into a statute words that would have the effect of fundamentally altering its meaning and undermining the apparent scheme of the legislation. He should hesitate still further when the proposed reading in has not been the subject of full argument on both sides nor referred to the relevant Government department. Despite the great efforts of counsel, I am far from satisfied that all the consequences of their proposed reading in of words into section 16A have been fully identified. It may be that, with further thought, an alternative reading or reinterpretation may seem prevalent. For example, it may be thought that, if any statute or provision needs to be reconsidered to ensure capability with ECHR in this context, it should be the MHA rather than the MCA.

  1. I acknowledge, of course, my obligation under section 6(1) of the Human Rights Act not to act in a way that is incompatible with that Act. Were it not for the availability of the inherent jurisdiction, I might be more inclined to adopt the course proposed above or to arrange further hearings before making a decision. Happily, however, for the reasons I will now explain, I am satisfied that the powers available to me under the inherent jurisdiction enable me to comply with my obligations under that section.

Inherent jurisdiction then?

The Judge set out the body of authority which endorses the view that the Court hold an inherent jurisdiction in relation to adults just as it does for children, ending with the most recent authority.

90.   Confirmation is provided by the more recent decision of the Court of Appeal in DL v. A Local Authority [2012] EWCA Civ. 253 in which Davis LJ said at paragraph 70:

“Where cases fall precisely within the ambit of the MCA 2005 and are capable of being dealt with under its provisions there is no room for – as well as no need for – invocation of the inherent jurisdiction. However, even in the case of an adult who lacks capacity within the meaning of the MCA 2005, it appears that the inherent jurisdiction remains available to cover situations not precisely within the reach of the statute.”

  1. The issue is considered at greater length in the judgment of McFarlane LJ who, in reaching the same conclusion, pointed out the MCA contains no provision restricting the use of the inherent jurisdiction in terms of those found in section 100 of the Children Act 1989, “Limited use of Wardship and Inherent Jurisdiction in matters relating to Children”. On this, McFarlane LJ said at paragraph 61:

“It would have been open to Parliament to include a similar provision, either permitting or restricting the use of the inherent jurisdiction in cases relating to the capacity to make decisions which are not within the MCA 2005. In the absence of any express provision, the clear implication is that if there are matters outside the statutory scheme to which the inherent jurisdiction applies then that jurisdiction continues to be available to continue to act as the ‘great safety net’ described by Lord Donaldson.”

In essence, if Parliament wanted to stop the use of inherent jurisdiction to creatively solve problems, they need to legislate this explicitly.

This is the cunning argument deployed  (which involves assuming that when the MCA says “Court” it means only the Court of Protection, not the High Court, even though in practice, as here, it is likely to be the same Judge, sitting in the same room, who just metaphorically puts on a different hat for a moment.

 

93.   (1) The prohibition on making an order which authorises the person being deprived of his liberty is expressly restricted to the Court of Protection exercising its statutory jurisdiction under the MCA and is not, but could have been, extended to the High Court exercising its inherent jurisdiction.

(2) Following McFarlane LJ in DL, the clear implication is that Parliament did not intend to prevent the High Court exercising its jurisdiction to make an order in the best interests and in order to uphold the Article 2 rights of a person lacking capacity in the circumstances of a case such as this.

(3) Furthermore, Parliament cannot have intended to remove the safety net from a person lacking capacity who requires the orders sought to be made in order to prevent his death.

(4) The relevant concept is his ineligibility to be “deprived by this Act” (section 16A(1) and schedule 1A at paragraph 2).

(5) If a person is ineligible to be deprived of his liberty by the MCA, section 16A provides that “the court may not include in a welfare order provision which authorises the person to be deprived of his liberty”. In this provision:

(a) “The court” means the Court of Protection; and

(b) “the welfare order” means an order under section 16(2)(a) of the Mental Capacity Act by the Court of Protection.

I agree with those submissions.

So, having determined that the Court had power under the Inherent Jurisdiction (which is like the legal equivalent of Duct Tape, or perhaps more accurately Polyfilla to cover up the cracks), the Judge then had to consider whether he should go on to use that power.

  1. the court, as a public authority, cannot lawfully act in a way that is incompatible with a right under ECHR. I accept the submission that I am under an operational duty under Article 2 to protect Dr. A., a man who, as I have found, lacks capacity to decide whether to accept nutrition and hydration against the risk of death from starvation. By making the orders sought by the Trust under the inherent jurisdiction, I will be complying with that operational duty.
  1. In all the circumstances, I hold that this court has the power under its inherent jurisdiction to make a declaration and order authorising the treatment of an incapacitated adult that includes the provision for the deprivation of his liberty provided that the order complies with Article 5. Unless and until this court or another court clarifies the interpretation of section 16A of the MCA, it will therefore be necessary, in any case in which a hospital wishes to give treatment to a patient who is ineligible under section 16A, for the hospital to apply for an order under the inherent jurisdiction where the treatment (a) is outside the meaning of medical treatment of the MHA 1983 and (b) involves the deprivation of a patient’s liberty.
  1. Under that jurisdiction, I am satisfied, for the reasons set out above, that an order for forcible feeding of Dr. A. is in his best interests. I therefore make the orders sought by the applicant Trust, that is to say declaring that it shall be lawful for the Trust clinicians to provide Dr. A. with artificial nutrition and hydration and to use reasonable force and restraint for that purpose, and further declaring that, insofar as those measures amount to a deprivation of liberty, they shall be lawful.

An elegant fix of a mess caused by Parliament.

There is a postscript update on Dr A, which may be of interest

98.   On 1st July 2013 (before the transcript of the judgment was finalised) the Trust notified my clerk that Dr A had returned to Iran, having made, in the doctors’ opinion, a capacitous decision to do so. I received statements from Drs R and WJ and correspondence from the parties, detailing the clinical decisions and events, which preceded his departure. I am informed that Dr A had continued to be provided with artificial nutrition and hydration requiring restraint. He also received amisulpride, an anti-psychotic. His mental state gradually improved, in response to the medication. Dr A started drinking and eating voluntarily on 8 and 10 May respectively. His weight returned to a level within a normal range. The Trust states that Dr A first mentioned he was returning to Iran on 23 May 2013. He made the final decision on 4 June 2013; after taking medical advice and legal advice from his immigration solicitor. On 14th June 2013 Dr WJ rescinded Dr A’s detention under section 3 MHA; his mental condition having continued to improve. He returned to Iran on 24 June 2013. I will now make an order concluding these proceedings, discharging the declarations and the order for a review hearing.

an englishwoman’s home is her castle (unless she is 82) ?

A race through KK v STCC 2012 – on deprivation of liberty, capacity and Court of Protection.

 

The judgment is on Baiili, here:-  http://www.bailii.org/ew/cases/EWHC/COP/2012/2136.html

 

It is a High Court decision, dealing with an 82 year old woman, KK, who had found herself in a nursing home STCC. It was, by all accounts a good nursing home, and meeting her needs. But KK wanted to go back to her home. The case obviously therefore grapples with interesting issues of capacity and where the State can or should assume responsibility for making decisions about a person’s life.

 

KK developed Parkinson’s disease and also had an admission to hospital following a fall. This left her disoriented and muddled and a psychiatrist who assessed her decided that she lacked capacity to make decisions. A best interests meeting (and I can already hear many of you saying “best interests? whose best interests?”) decided that she could not return home and should move to a nursing home. She made some improvements there and went back to her bungalow.  There was an out of hours emergency support line, and the LA report KK having used it over a thousand times in a six month period, leading them to review whether she could remain at home.

 

(This has interesting echoes of the Supreme Court case involving the woman who was incontinent at night and wanted workers to help get her out of bed, but was instead given effectively adult nappies – leading to the debate about whether provision of social care services ought to involve a duty of dignity, as opposed to just meeting the needs in the most cost-effective way.

R (on the application of ELAINE MCDONALD) v KENSINGTON & CHELSEA ROYAL LONDON BOROUGH COUNCIL (2011)[2011] UKSC 33  – it was one where the Court were split, and fervently so, but finally ruled that this method of meeting her needs did not violate her human rights.  Frankly, although the budgetary implications of the decision going the other way, and there being a right to be treated in a dignified way were enshrined in law would be a massive change, I wish personally that the decision had gone the other way. I don’t feel comfortable with the idea that this is not a breach of human rights – and this is something that the mainstream press completely overlooked in all their human rights bashing – denying people in their old age proper humane treatment is far worse than all the ‘not deported because he had a cat’ nonsense)

 

The STCC made a DOLS decision that KK was being deprived of her liberty, and followed the correct legal process. The case found itself in Court and to be challenged.

 

There is a nice summary of the law on capacity, which I’ll quote in full, as it is a good starting point for grappling with these issues

 

Capacity – the law

    1. A person may be deprived of their liberty under the DOLS if the six qualifying requirements under Schedule A1 of the 2005 Act are satisfied. In those circumstances, the supervisory body, (in this case CC), may, on the application of the managing authority (in this case STCC), issue a standard authorisation for the deprivation of liberty, and, prior to the determination of an application for a standard authorisation, the managing authority may issue an urgent authorisation. The six qualifying requirements include, under paragraph 12(1)(c) of the schedule, the “mental capacity requirement”. Paragraph 15 of the schedule provides that: “the relevant person meets the mental capacity requirement if he lacks capacity in relation to the question of whether or not he should be accommodated in the relevant… care home for the purpose of being given the relevant care or treatment”.

 

    1. When a standard authorisation has been made by a supervisory body, s. 21A(2) empowers the Court of Protection to determine any questions relating to, inter alia, whether P meets one or more of the qualifying requirements. In particular, once the court determines the question, it may make an order varying or terminating the standard authorisation: s. 21A(3)(a). But once an application is made to the Court under s. 21A, the Court’s powers are not confined simply to determining that question. Once its jurisdiction is invoked, the court has a discretionary power under s. 15 to make declarations as to (a) whether a person has or lacks capacity to make a decision specified in the declaration; (b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration, and (c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person. Where P lacks capacity, the court has wide powers under s. 16 to make decisions on P’s behalf in relation to matters concerning his personal welfare or property or affairs.

 

    1. When addressing questions of capacity, the Court must apply the following principles.

 

    1. First, a person must be assumed to have capacity unless it is established that she lacks capacity: s. 1(2). The burden of proof therefore lies on the party asserting that P does not have capacity. In this case, therefore, the burden of proof lies on CC to prove that KK lacks capacity. The standard of proof is the balance of probabilities: s. 2(4).

 

    1. Secondly, the Act provides that a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain: s. 2(1). Thus the test for capacity involves two stages. The first stage, sometimes called the “diagnostic test”, is whether the person has such an impairment or disturbance. The second stage, sometimes known as the “functional test”, is whether the impairment or disturbance renders the person unable to make the decision. S. 3(1) provides that, for the purposes of s. 2, a person is unable to make a decision for himself if he is unable (a) to understand the information relevant to the decision; (b) to retain that information; (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision whether by talking, using sign language or any other means. Important guidance as to the assessment of capacity generally, and the interpretation and application of the four components of the functional test in particular, is set out in section 4 of the Mental Capacity Act 2005 Code of Practice.

 

    1. Third, capacity is both issue-specific and time specific. A person may have capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether at the date on which the court is considering the question whether the person lacks capacity in question, in this case to make decisions as to her residence and care.

 

    1. Fourthly, a person is not to be treated as unable to make a decision unless all practicable steps to help her to do so have been taken without success: s. 1(3). The Code of Practice stresses that “it is important not to assess someone’s understanding before they have been given relevant information about a decision” (para 4.16). “Relevant information” is said in paragraph 4.19 to include “what the likely consequences of a decision would be (the possible effects of deciding one way or another) – and also the likely consequences of making no decision at all”. Paragraph 4.46 of the Code of Practice adds that “it is important to assess people when they are in the best state to make the decision, if possible”.

 

    1. Fifth, I bear in mind and adopt the important observations of Macur J in LBL v RYJ [2010] EWHC 2664 (Fam) (at paragraph 24), that “it is not necessary for the person to comprehend every detail of the issue … it is not always necessary for a person to comprehend all peripheral detail .…” At paragraph 58 of the judgment, Macur J identified the question as being whether the person under review can “comprehend and weigh the salient details relevant to the decision to be made”. A further point – to my mind of particular importance in the present case – was also made by Macur J at paragraph 24 in that judgment: “…it is recognised that different individuals may give different weight to different factors.”

 

    1. Sixth, a person is not to be treated as unable to make a decision merely because she makes an unwise decision: s. 1(4). Paragraph 4.30 of the Code of Practice states: “It is important to acknowledge the difference between

 

  • unwise decisions … and
  • decisions based on a lack of understanding of risks or inability to weigh up the information about a decision.

Information about decisions the person has made based on a lack of understanding of risks or inability to weigh up the information can form part of a capacity assessment – particularly if someone repeatedly makes decisions that put them at risk or result in harm to them or someone else.”

    1. Finally, in assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in addition the court in these cases will invariably have evidence from other clinicians and professionals who have experience of treating and working with P, the subject of the proceedings. Often there will be evidence from family and friends of P. Occasionally, as in this case, there will be direct evidence from P herself. In A County Council v KD and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at paras 39 and 44, Charles J observed “it is important to remember (i) that the roles of the court and the expert are distinct and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence… the judge must always remember that he or she is the person who makes the final decision”. That case concerned an application for a care order under Part IV of the Children Act 1989, but the principles plainly apply to proceedings under the Mental Capacity Act in general and the assessment of the functional test under s. 2 in particular. In other words, when assessing the ability of P to (a) understand the information relevant to the decision (b) retain that information, and (c) use or weigh that information as part of the process of making the decision, the court must consider all the evidence, not merely the views of the independent expert. In many cases, perhaps most cases, the opinion of the expert will be confirmed by the other evidence, but inevitably there will be cases where the court reaches a different conclusion. When taking evidence from P herself, the court must plainly be careful about assessing the capacity to understand, retain and use and weigh up information, but, whilst acknowledging the important role for expert evidence, the assessment is ultimately a matter for the court.

 

  1. There is a further point, to which I alluded in an earlier decision in PH v A Local Authority, Z Ltd and R [2011] EWHC 1704 (Fam). In assessing the evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians and professionals treating and working with, P. In PH, I drew attention to a potential risk, identified by Ryder J in Oldham MBC v GW and PW [2007] EWHC136 (Fam) [2007] 2 FLR 597, another case brought under Part IV of the Children Act 1989, that the professionals and the court may be unduly influenced by what Ryder J called the “child protection imperative”, meaning “the need to protect a vulnerable child” that, for perfectly understandable reasons, may influence the thinking of professionals involved in caring for the child. Equally, in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. On the other hand, the court must be equally careful not to be influenced by sympathy for a person’s wholly understandable wish to return home.

 

 

Very nicely put, in my humble opinion, and it identifies one of the main pitfalls in this area – that of the State taking a very paternalistic approach of ‘we know best’.

 

KK gave evidence herself in Court, and the summary again is set out in full – there’s one particularly telling line at the end, when she was asked what would happen if at home in her bungalow, she were to fall and be unable to get up. She said, that if she fell on the floor and died on the floor, she would rather die in her own home than live somewhere else.

 

KK’s evidence

    1. Unusually, although not uniquely, this court received evidence from KK herself to assist in determining the question of capacity, not only in a written statement but also orally in court.

 

    1. In her oral evidence KK repeated that she wanted to live in her bungalow. She said: “Everything I’ve got is in that bungalow. My whole life. Everything there is familiar to me. I’ve got my hobbies. I’ve got all sorts of things. I am doing a model village. It is in my bedroom in the bungalow.” I asked KK how she got to her bungalow from the court. In reply, she correctly said that you have to go over a bridge, but gave the wrong name for the bridge. When I asked how long it would take to get there, she immediately replied “it depends on the traffic – a good half hour”. She told me that she could see everything in the village from her bungalow window – the church and the tower, the whole village. She collects porcelain dolls. She goes to the bungalow every day and spends several hours there before returning to STCC for the afternoon where she tends to sit in her room. Taxis take her to and from the bungalow. She has a special taxi, able to take the wheelchair. She now goes home three hours everyday.

 

    1. Turning to nutrition and hydration, KK gave the following evidence in her statement:

 

“When left at my bungalow with food I have struggled in being able to reach the food that is left on my table as my table has been filled with lots of different things and often the food gets pushed nearer the back. I have also struggled to drink some of the drinks left out as it has been difficult lifting the drink and moving the straw as my right hand has a tremor. If I was to return to my bungalow I would look forward to planning my meals and writing a shopping list with carers. The cooks at STCC try hard to make meals which I will enjoy, whilst I appreciate their efforts I generally do not like what they cook. I drink “Ensure” nutrition drinks to supplement my diet. I like the taste of these drinks and have asked to be put back on to them. … I get frustrated that STCC’s staff mash my food up and give me a spoon to eat it with. I do not need my food mashed up or a spoon to eat with. I do not think that my diet would be any worse if I returned to the bungalow as I would have meals of choice prepared for me and carers present to assist me with eating.”

    1. I asked her about her food intake during her oral evidence. She said that she could have what she liked for breakfast but usually just had a glass of milk. She repeated in oral evidence that the food was not very good at STCC – “like baby food”. She said that her favourite food was salad. She said that she could make a cup of tea for herself but she does not do so because her legs “are not too good”.

 

    1. As to her future care needs, KK observed as follows in her statement:

 

“I have considered what level of care that I would need whilst at home. I acknowledge that I need assistance in washing including myself, toileting, preparation of food and day-today chores. I anticipate that this could be adequately provided for with four, one hour care visits a day. It may be considered that I need an increased package. I am willing to discuss a suitable package with care professionals. I get on well with my social worker JL and respect his view and opinions. I do not believe that I would need care overnight. Usually I go to bed at 1900hrs and wake at 6 o’clock. Prior to my transfer to STCC I was put to bed by carers at approximately 1900hrs and was visited again at approximately 6 o’clock at which time they would wash and dress me and put me in my recliner chair. This worked well. This routine is similar to that which is in place at STCC.”

In her oral evidence, KK repeated that she would need four visits a day from two carers.

    1. In cross-examination Mr. Dooley asked KK about the cases when she had declined to go on the home visits. She said that on a couple of occasions she had not fancied going back because of the weather. There is a long path up to the bungalow. She was concerned that it might be slippery and that she might be blown over in her wheelchair.

 

  1. In her statement, KK acknowledged that whilst at the bungalow she used the lifeline alarm excessively. She adds: “I understand why this was inappropriate and consider my behaviour in using it so much to have been silly.” In oral evidence, she reiterated that she accepted that she had been using the lifeline in a wrong way. She said “I was nervous”. She added, however, “but I have learnt my lesson.” She was asked what would happen if she fell over. She replied: “If I die on the floor, I die on the floor. I’d rather die in my own bungalow, I really would.”

 

The opinion of all of the professionals was that KK did not have capacity to make decisions – however, the Court rightly identified that it is a factual matter that falls to be determined by the Court and those opinions (even if significant weight must attach) are not determinative.

 

The Court (and I find myself cheering a little as I type this) determined that KK did have capacity, and that therefore the State did not have the power to make her stay in the nursing home if she did not wish to do so.

    1. When considering KK’s capacity to weigh up the options for her future residence, I adopt the approach of Macur J in LBJ v RYJ (supra), namely that it is not necessary for a person to demonstrate a capacity to understand and weigh up every detail of the respective options, but merely the salient factors. In this case, KK may lack the capacity to understand and weigh up every nuance or detail. In my judgment, however, she does understand the salient features, and I do not agree that her understanding is “superficial”. She understands that she needs carers four times a day and that is dependent on them for supporting all activities in daily living. She understands that she needs to eat and drink, although she has views about what she likes and dislikes, and sometimes needs to be prompted. She understands that she may be lonely at home and that it would not be appropriate to use the lifeline merely to have a chat with someone. She understands that if she is on her own at night there may be a greater risk to her physical safety.

 

    1. In weighing up the options, she is taking account of her needs and her vulnerabilities. On the other side of the scales, however, there is the immeasurable benefit of being in her own home. There is, truly, no place like home, and the emotional strength and succour which an elderly person derives from being at home, surrounded by familiar reminders of past life, must not be underestimated. When KK speaks disparagingly of the food in the nursing home, she is expressing a reasonable preference for the personalised care that she receives at home. When she talks of being disturbed by the noise from a distressed resident in an adjoining room, she is reasonably contrasting it with the peace and quiet of her own home.

 

    1. The local authority has attached considerable importance to KK’s excessive use of the lifeline in the first half of 2011. I infer that this was an important factor in the decision to move her back to STCC. It remains a significant factor in the professionals’ assessment of her capacity. To my mind, however, the local authority has not demonstrated that it has fully considered ways in which this issue could be addressed, for example by written notes or reminders, or even by employing night sitters in the initial stage of a return home. I also note that during KK’s daily home visits it has not been reported that she has used the telephone in ways similar to her previous use of the lifeline, although in the latter stages of her period at home prior to admission to care in July 2011 she was apparently using the lifeline excessively during the day as well as at night. Ultimately, however, I am not persuaded that calling an emergency service because one feels the need to speak to someone in the middle of the night, without fully understanding that one has that need or the full implications of making the call, is indicative of a lack of capacity to decide where one lives.

 

    1. Another factor which features strongly in the local authority’s thinking is KK’s failure to eat and drink. Here again, however, I conclude that more could be done to address this issue by written notes and reminders, and by paying greater attention to KK’s likes and dislikes. KK is not the only older person who is fussy about what she eats and drinks.

 

    1. I do not consider the fact that KK needs to be helped about overusing the lifeline, or reminded to eat and drink regularly, carry much weight in the assessment of her capacity. Overall, I found in her oral testimony clear evidence that she has a degree of discernment and that she is not simply saying that she wants to go home without thinking about the consequences. I note in particular that for a period earlier this year she elected not to go on her daily visits to the bungalow because of the inclement weather. This is, to my mind, clear evidence that she has the capacity to understand and weigh up information and make a decision. Likewise, I consider her frank observation that “if I fall over and die on the floor, then I die on the floor” demonstrates to me that she is aware of, and has weighed up, the greater risk of physical harm if she goes home. I venture to think that many and probably most people in her position would take a similar view. It is not an unreasonable view to hold. It does not show that a lack of capacity to weigh up information. Rather it is an example of how different individuals may give different weight to different factors.

 

The Court did, however, and this is illustrative of the problem I have blogged about before, of what the heck a deprivation of liberty really is, determine that KK’s liberty had not been deprived. So even though she did not want to stay at STCC and had had to do so, her liberty was not being deprived.  I echo what’s previously been said by the Courts on the DOLS issue, that it is extremely unfortunate that a law intended to help the most vulnerable in society has now become so impenetrable that no lay person (or indeed many lawyers) can really look at a set of circumstances and call correctly whether there has been a deprivation of liberty or not.

    1. This case illustrates the importance of the fundamental principle enshrined in s. 1(2) of the 2005 Act – that a person must be assumed to have capacity unless it is demonstrated that she lacks it. The burden lies on the local authority to prove that KK lacks capacity to make decisions as to where she lives. A disabled person, and a person with a degenerative condition, is as entitled as anyone else to the protection of this presumption of capacity. The assessment is issue-specific and time specific. In due course, her capacity may deteriorate. Indeed that is likely to happen given her diagnosis. At this hearing, however, the local authority has failed to prove that KK lacks capacity to make decisions as to where she should live.

 

  1. It will now be for the local authority and KK to discuss what happens next. It is not a matter for me to determine or even advise. One course may be for the local authority to put together a proposal for a series of trial overnight visits, with all necessary support, to enable KK to experience being back in the bungalow at night so that she can reach a decision whether she in fact wishes to move back. During that process, the local authority would doubtless be monitoring her capacity, and may of course return to this Court if it concludes that she no longer meets the functional test. But before doing so, it must be careful to ensure that it complies fully with the statute and Code of Practice, taking all practicable steps to enable KK to make decisions for herself.

 

 

“A labyrinth of DoLs”

 An imaginary judgment

 

(I am extremely grateful in the construction of the legal framework of this judgment to Lord Justice Wilson’s careful and precise analysis of the law in RE P and Q 2010 – often known as the MIG and MEG case. Almost everything in this that you think is well-written was written by Lord Justice Wilson, and everything shabby and feeble is my own)

 

 The Court is today dealing with an application by those representing the parents of a young man named L, to the effect that his accommodation in the Minos Taurus care facility amounts to a Deprivation of Liberty under the Mental Capacity Act 2005, and that as this has been done without authority, the facility, and the Local Authority who placed him there are in breach of Article 5 of the Human Rights Act 1998 in that his liberty is being restricted without lawful excuse.

 

The Local Authority and the owners of Minos Taurus – Mr Ian K Harris and his dad, Ellis, contend that there is no restriction on L’s liberty and that there is an open door that L can leave by at any time and a path that can be followed to the outside world should he wish to leave at any time; and that thus L is effectively remaining in the placement of his own wish.

 

Matters are complicated when the Court looks, as I am strenuously urged to, beyond the face value of that statement and at the reality of the layout of the Minos Taurus care home. The care home has a front door, which is locked at all times. Staff members have a key, and visitors will be admitted, but residents are not able to freely enter or exit through that door. That much is common ground between the parties.

 

The rear door is indeed, unlocked at all times and any resident is free to go through it and staff would not attempt to prevent or discourage a resident from doing so.

However, emerging from that back door does not grant the resident immediate access to the public highway or the world at large, but rather to the grounds of the Minos Taurus home, which are over two acres in size. I have been shown aerial photography taken by the applicants of those grounds and it is plain that what has been constructed is an array of hedges, constructed in such a way that only one path moves from the entrance to the exit.

The hedges themselves are impenetrable, and could not be scaled without considerable difficulty, being both prickly and twelve feet in height.

In short, what lies at the rear of Minos Taurus can best be described as a labyrinth. The entrance to this labyrinth is the back door of the physical Minos Taurus building and the exit is to the public footpath that runs outside the rear of the property. There is no physical gate, or barrier to that exit.

 Minos Taurus therefore contend that L, or any other resident, would simply have to walk a path between the entrance and the exit. If they walked that path, which they are free to do at any time of the day or night, nothing would prevent them from reaching the footpath and thus leaving the land owned by Minos Taurus. Thus, there is no deprivation of liberty.

I note that they contend that describing their grounds as a labyrinth is pejorative and that it is, in reality ‘a restful and soothing arrangement of hedges in a classical form’.

 They are to be admired for their chutzpah in that submission, but I find that quite the simplest of this entire tangled and byzantine case to unpick. The grounds are laid out in the form of a maze (I note in passing that whilst I may, as counsel did throughout, flit between the term maze and labyrinth, that what we are dealing with here is a maze – since it has an entrance and exit and branching paths, whereas a labyrinth leads to the centre and is not intended to be difficult or puzzling to navigate).

I am satisfied that the applicant’s claim that the grounds of Minos Taurus are intentionally laid out as a maze, and that it is not a merely coincidental happenstance or an intention to create a geometrically and horticulturally pleasing arrangement which simply happened to also take the form of a maze. Nor is it a homage to Hampden Court, or the many other notable horticultural efforts that are set out in glossy photographs in Section J of the bundle. Whilst those photographs have indeed been soothing to consider and admire, they have not assisted me as Minos Taurus had hoped they might.

The grounds are laid out in the form of a maze and this has been a deliberate intention on the part of Minos Taurus.

L’s family contend, that L, being a person who lacks capacity to make decisions in his own regard, is incapable of navigating a maze or labyrinth, and that whilst theoretically, he is free to leave at any time, in reality he is imprisoned by this maze and his liberty is just as restricted as if he were blocked by a locked and barred door.

They state that it is of significance that their Freedom of Information request gleaned that :-

 (a) Since the construction of the maze, no member of staff has chosen to enter by the back door rather than the front

(b) Since the construction of the maze, no resident has left the home by way of the back door.

(c) All residents who have left the home have done so by the front door, which had been unlocked for them by staff.

Turning now to the law, which one might rightly muse is almost as impenetrable as the hedge and with as many twists and turns as the construction in question. The issue whether the arrangements for L amount to a deprivation of his liberty and whether the arrangements engage Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

Article 5 provides: “1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law – … (e) the lawful detention … of persons of unsound mind …; … 4 Everyone who is deprived of his liberty by … detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

 The practical effect of a conclusion that the arrangements for L amount to a deprivation of his liberty is to be found in the valuable right provided by paragraph 4 of Article 5. For in that event his right would be to take court proceedings for a decision in relation to the lawfulness of their detention The paragraph would impose a duty on the court itself periodically, again probably at least annually, to review the continued necessity for the arrangements which deprive him of his liberty, albeit perhaps only on paper unless requested otherwise: see Re BJ (Incapacitated Adult) [2009] EWHC 3310 (Fam), [2010] 1 FLR 1373, at [26] – [28]. The court’s review would probably again require independent representation of him.

It is not, therefore, a merely academic question, but one which goes to the heart of L’s rights. I shall not go into details of the nature of L’s problems, suffice to say that his day to day functioning is approximately that of a five year old child and that it is beyond dispute and accepted by all parties to these proceedings that he lacks capacity to make decisions for all matters relevant to these proceedings pursuant to section 2 of the Mental Capacity Act 2005. There is expert evidence, undisputed, to that effect.

 L came into the Minos Taurus care home as a voluntary patient, his family having brought him there for a period of respite. They say that they had no idea that having taken him there, they did not have the power to discharge him. Although he is free to leave whenever he wishes, he is, they say, prevented from doing so by the practical barriers that have been put in place.

As indicated earlier, Minos Taurus and the Local Authority who are assisting in the funding of L’s placement there, and supporting his remaining in that placement, are of the view that L can leave the placement at any time and that there is a route or path which can be followed which is completely unimpeded to L, if he chose to follow it. Minos Taurus have indicated that if the Local Authority determined that L should leave the home by the front door, or were to cease funding the placement, they would facilitate L leaving by the front door.

The European Court of Human Rights (“the ECtHR”) has made clear that a deprivation of liberty has three elements:

(a) “the objective element of a person’s confinement to a certain limited place for a not negligible length of time”: Storck v. Germany (2005) 43 EHRR 96, at [74];

(b) the “additional subjective element [that] they have not validly consented to the confinement in question”: the Storck case, also at [74]; and

 (c) the confinement must be “imputable to the State”: the Storck case, at [89].

That is not disputed by any of the parties. The critical issue that is in dispute is whether, as a matter of fact, L is confined to a certain limited place, or whether he is not. I am invited by L’s family to reword the test as being whether L is confined to a certain limited place or whether he is free to come and go as he chooses, but I decline to replace the construction that has been carefully arrived at by the ECtHR in Storck with a different formulation. It is not incumbent on the State to demonstrate that L is free to come and go as he chooses, but to refute the claim that he is confined to a certain limited place for a not negligible length of time. The classic exposition of the nature of the enquiry into the objective element, on which no doubt has been cast for 30 years, is that of the ECtHR in Guzzardi v. Italy (1981) EHRR 333, at [92] – [93], as follows: “… the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question … The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance … the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion …”

These are prescient words indeed and ones that have survived the last three decades better than tastes in literature, music, art or fashion. It certainly is no easy task to determine the clear bright line that separates a restriction of liberty from a deprivation of liberty. One is reminded of the philosophical debate about a pile of stones, and one stone being removed at a time, and at what point there ceases to be a pile.

To the layperson it would seem a relatively easy task to determine whether objectively someone is deprived of their liberty. They would probably begin with asking the question “What’s stopping them from leaving?”  , but there is no question no matter how simple or blindingly obvious the answer that cannot be obfuscated by the combined efforts of Parliament, the judiciary and the focussed minds of the Bar.

In relation to the objective element there are two more recent decisions of the ECtHR of great importance.

The first decision is HL v. UK (2005) 81 BMLR 131;  Mr HL was an incapable 48-year-old man who was autistic, unable to speak and had a history of self-harm. For 30 years prior to 1994 he had been an inpatient in Bournewood Hospital; and for the final seven of them he had been in its Intensive Behavioural Unit. Then, in 1994, without being formally discharged, he was moved into the home of paid carers. In July 1997, following an incident of self-harm at a day-care centre, he was readmitted to the unit at the hospital and he remained there for four months, whereupon he was returned to the carers. For the first three of those months he was an informal patient, i.e. not compulsorily detained there under the Mental Health Act 1983; and such was the period during which, so the ECtHR held, he had been deprived of his liberty in breach of Article 5. Thus did the court identify “the Bournewood gap” in our legal framework for control over the deprivation of liberty in the case of an incapable person effected otherwise than pursuant to the Act of 1983; and Parliament sought to fill the gap by making insertions into the Mental Capacity Act 2005 which, by s.4A(5) and Schedule A1, set up a framework for such control in the case of a person receiving care or treatment in a hospital or a care home and which, by s.4A(1) and (3), rendered any other such deprivation lawful only if made pursuant to a court order that such was in her (or his) best interests. In its submissions in the case of HL the UK government had laid considerable emphasis on the fact that Mr HL had been compliant with his return to live in the unit and had never attempted to leave it nor expressed the wish to do so. But the court held, at [90], that, in that Mr HL was incapable, his compliance was not of central importance. The fact was that, irrespective of whether his ward was locked or lockable, he had not been free to leave the unit: [91] and [92]. The court said, at [91]: “the Court considers the key factor in the present case to be that the health care professionals treating and managing [Mr HL] exercised complete and effective control over his care and movements from 22 July 1997, when he presented acute behavioural problems, to 29 October 1997, when he was compulsorily detained.”

 

The second decision is the case of Storck cited above. A young woman aged 18 was placed by her father in a locked ward of a private psychiatric clinic and she remained there for 20 months. Very strong medication was administered to her, at times by force. On a number of occasions she attempted to flee from the clinic and was prevented from doing so by being fettered. Once she succeeded in escaping and the police forcibly returned her there. She was unable to maintain regular social contact with persons outside the clinic. The ECtHR held that all three elements of a deprivation of liberty were present and that, in respect of the objective element, the case was a fortiori that of HL.

 

In the case of RE P (known as MIG) and Q (known as MEG) 2010, the Court of Appeal determined that there were some important factors to be considered when determining whether there was objectively a deprivation of liberty.

 1. A person’s happiness, as such, is not relevant in determining whether there has been a deprivation of liberty.

 2. However, an objection is relevant, even where a person lacks capacity. If they do not want to be in a place and they object, there will be conflict. At the very least there will be arguments and they will suffer the stress of having their argument overruled. This would be a factor which could be properly taken into account when determining if a person’s liberty were being deprived, rather than restricted.

3. From the relevance of objections and also of the lack of them, it is logical to move to the relevance of medication and also of the lack of it . The administration to a person of medication, at any rate of antipsychotic drugs and other tranquilisers, is always a pointer towards the existence of the objective element: for it suppresses her liberty to express herself as she would otherwise wish. Indeed, if the administration of it is attended by force, its relevance is increased. Furthermore, in that objections may be highly relevant, medication which has the effect of suppressing them may be relevant to an equally high degree. But again, conversely, the absence of medication is a pointer in the other direction.

4. The purpose of the arrangements under scrutiny can be relevant.

 5. the relative normality, or otherwise of the arrangements under scrutiny can be relevant

 6. an enquiry into the residential arrangements and the degree of outside social contact. “Whether a certain situation constitutes a deprivation of liberty may depend on the living conditions of the person concerned and the degree of freedom he or she enjoyed otherwise”: “The European System for the Protection of Human Rights,” by Macdonald, Matscher and Petzold, 1993, 289.

I propose to analyse the case on the basis of those principles, to form an objective view of whether, as a preliminary issue the first of the three limbs of Starck are made out. Has there been the objective element of a person’s confinement to a certain limited place for a not negligible length of time ?

 

I am however, before conducting that exercise, mindful of the following authorities , and indeed that the Court of Appeal in Re P and Q determined that there was NO deprivation of liberty in that case and this body of caselaw strives to convince me that there is far more to the objective question that considering the commonsense formulation that an ordinary person would use “What’s stopping them from leaving?” , in that these cases illustrate that locked doors, tranquiliser medication and physical restraint can all, in certain circumstances be deployed to stop a person leaving somewhere without his liberty being deprived. 

  (I wonder, in an idle moment, whether a Judge in a civil trial to determine a tort of False Imprisonment, would wrestle for even a moment with the issue of whether someone who was drugged, locked up or sat on was being prevented from leaving, but that is by the by)

 

RE  C (BY THE OFFICIAL SOLICITOR) v (1) BLACKBURN WITH DARWEN BOROUGH COUNCIL (2) A CARE HOME (3) BLACKBURN WITH DARWEN TEACHING CARE TRUST (2011) [2011] EWHC 3321 (Fam) Where an individual who was living in a care home with locked doors was not considered by the High Court to be deprived of his liberty.

 

The Honourable Mr Justice Peter Jackson commented here, and they are sentiments which I would not only echo, but shout into the Grand Canyon via a megaphone and perhaps even go so far as to embark upon a process of chiselling these words into Mount Rushmore:- 

 It is a truly unhappy state of affairs that the law governing the fundamental rights and welfare of incapacitated people should be so complex. As this case shows, its intricacies challenge the understanding of professionals working in the field and are completely inaccessible to those for whose benefit the legislation has been devised, including those with a relatively high level of understanding, such as Mr C. This judgment, while keeping citation from statute, regulation, codes of practice and reported cases to the necessary minimum, still remains more focused on technical issues than I would like

Bravo.

 I wish that my own meagre contribution to the law in this regard could add illumination, but I fear it is likely to do little other than complicate matters still further.

 I am also referred to the case of CHESHIRE WEST & CHESTER COUNCIL v P (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR) (2011) [2011] EWCA Civ 1257 In which the Court of Appeal determined that restrictive measures taken in relation to a man who lacked capacity did not amount to a deprivation of his liberty.

HELD: (1) After reviewing the relevant authorities, the court identified the following factors which were likely to be significant in the type of deprivation of liberty cases coming before the Court of Protection: (a) the starting point was the “concrete situation”, taking account of a range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see paras 32-33, 188, 102 of judgment); (b) deprivation of liberty had to be distinguished from restraint because restraint alone was not deprivation of liberty (paras 23, 102); (c) account had to be taken of the individual’s whole situation and context was crucial, Guzzardi v Italy (A/39) (1981) 3 E.H.R.R. 333 and Engel v Netherlands (A/22) (1979-80) 1 E.H.R.R. 647 applied, Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] 1 A.C. 385 followed (paras 32-35, 102); (d) mere lack of capacity to consent to living arrangements could not in itself create a deprivation of liberty and the fact that a domestic setting could involve a deprivation of liberty did not mean that it often would, Surrey CC v CA [2010] EWHC 785 (Fam), [2011] M.H.L.R. 108 approved (paras 27-28, 41-59, 102-103); (e) it was legitimate to have regard both to the objective “reason” for a placement and treatment and also the objective “purpose”, Austin v Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] 1 A.C. 564 followed (paras 60-75, 102); (f) subjective motives or intentions had only limited relevance since an improper motive or intention might have the effect that what would otherwise not be a deprivation of liberty was, for that very reason, a deprivation whilst a good motive or intention could not render innocuous what would otherwise be a deprivation of liberty (paras 74-77, 102); (g) it was always relevant to evaluate and assess the ‘relative normality’ of the situation, Secretary of State for the Home Department v JJ and others followed (paras 78-97, 102); (h) the assessment had to take account of the particular capabilities of the person concerned since what might be a deprivation of liberty for one person may not be for another (paras 92, 97, 102); (i) in most contexts the relevant comparator was the ordinary able bodied adult but not in the kind of cases that came before the Family Division and the Court of Protection, concerning children and adults with disabilities whose lives were dictated by their own cognitive and other limitations (paras 86, 102); (j) in such cases, the comparator was an adult of similar age with the same capabilities as the adult concerned, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations. In the case of a child, the comparator was a child of the same age and development, Surrey CC v CA [2011] EWCA Civ 190, [2011] 2 F.L.R. 583 applied (paras 86-97, 102). (2) In the instant case, the judge had not compared P’s situation with the kind of life he would have been leading as someone with his disabilities and difficulties in a normal family setting. There was nothing to show that the life he was living there was significantly different from the kind of life that anyone with those difficulties could normally expect to lead, whatever kind of setting they were living in. On the contrary, there was a strong degree of normality in his life, assessed by reference to the relevant comparator (paras 105-112). The judge’s reasoning in relation to the measures applied to P from time to time was equally problematic. The measures involved the kind of occasional restraint that anyone caring for P in any setting would have to adopt from time to time. The finger sweep was obviously intrusive but had to be looked at in context. It was little different from what any properly attentive parent would do if a young child was chewing something unpleasant or potentially harmful. It involved a degree of restraint but that was far removed from anything approaching a deprivation of liberty. P’s care plan did not involve a deprivation of his liberty (paras 113-117).

 

The Minos Taurus unit, and the Local Authority urge that I exercise caution before determining that the arrangements for L amount to a deprivation of his liberty. They contend that :-

1. There is an unlocked door through which L may leave at any time.

2. L’s needs are being met in the unit

3. L is not making attempts to leave through the unlocked door. Setting aside whether he could navigate the maze (about which they make no concessions) he has not attempted to step out of the physical building and into the grounds at the rear of the building.

 4. L does attend social functions and some educational/play facilities outside of the unit and has a quality of life comparable to that which persisted before his admission 

5. L is not on any medication

6. L has not been the subject of any restraint

7. There are no entries in any of the records of L objecting to the placement, or of wishing to leave. It is plain that he is asking for his family and making positive comments about them and his time with them.

On the evidence that has been placed before me, there is nothing to counteract these facts and I have to find that these contentions are all made out.

 

Set against that,  I am satisfied that the purpose of the arrangements, in having a maze built in the grounds of the building and there being an open door leading into that maze is in order to provide the illusion of a person being free to leave. This illusion does not sit well with me, leaving as it does, an indelible impression of an attempt to circumvent the need to make the application to detain a person using the Mental Capacity Act, which application could be challenged.

I am also satisfied that none of the residents at Minos Taurus, who are there on a “voluntary” basis are capable of negotiating or navigating that maze successfully and that within a few short minutes of being in the maze unaccompanied they would become fearful, lost and no doubt calling for staff to help them. That is not an indication of them consenting to be in the home or wishing to remain there, but the reality of them being simply incapable of negotiating the obstacle that has been placed in their path by Mr Ian K Harris and his father, Ellis.

This, however, is the only matter that I can set against the 7 positive factors listed above to indicate that there might be a degree of deprivation of liberty rather than restriction of it.  I do not feel able to imbue that matter, grave as it is, with sufficient weight to tip the scales against those 7 positive factors.

Much as this conclusion might leave a bad taste in my mouth, the construction of the maze being a clear device to circumvent suggestion that L and his fellow residents are deprived of their liberty, I am in difficulties on the authorities to reach the objective conclusion that L’s family invite me to make. Given that some of the authorities find that locked doors and physical restraint need not amount to an objective deprivation of liberty, and that those factors are not present in this case, I am driven by the authorities and an analysis of the law to find that there is no such deprivation of liberty.

However, my conclusion is that L would like to have a member of his family to visit him in the unit and to walk with him in the grounds. Should they happen to wish to wander in the maze, and should they happen to find their way out (perhaps with the benefit of the aerial photography that can be found at G42 of the Court bundle) then that might be a coincident outcome.

If the unit were to refuse to allow L to be visited by his family and to walk with them in the grounds, or to refuse to allow L to leave by the exit of the maze, should he find his way there, then I would be minded to find that a deprivation of liberty had occurred at that point. Indeed, I determine that if they were minded to do so, they should make the relevant application to give them authority to deprive L of his liberty to walk in the garden with his family.

 The same would be true of any of the other residents of Minos Taurus, and I am happy for this judgment to be published and made available to the family members of all other residents of the unit.

I apologise that my solution and judgment in this case is more akin to the Gordian Knot than Ariadne’s ball of thread, but I trust that it will meet with some satisfaction in at least some of the participants of this fascinating piece of litigation.

Follow

Get every new post delivered to your Inbox.

Join 2,374 other followers