Persons who lack capacity – Deprivation of liberty – Mental Capacity Act

Hillingdon London Borough Council v Neary and others: (Court of Protection) Mr Justice Jackson: 9 June 2011

The respondent, S, had childhood autism and a severe learning disability. He required supervision and support at all times.

In August 2009, S moved into a flat with his father, the second respondent. In December 2010, the second respondent was unwell and felt exhausted. At the request of the second respondent, S went to stay overnight on a respite placement. S was subsequently moved into a residential support unit. The second respondent had not agreed to S remaining at the support unit for long-term assessment. On 15 April, the unit manager signed an urgent deprivation of liberty (DOL) authorisation allowing the applicant authority to deprive S of his liberty at the support unit for a period of seven days. A further three standard DOL authorisations were issued in April, June and September. In October, the authority issued proceedings in the Court of Protection. The authority sought a number of orders, including, among other things, declarations that it was lawful for them to place S in appropriate residential accommodation identified by the council, and to make long-term welfare decisions regarding S’s future care and residence. In November, a fourth standard DOL authorisation was issued. In December, that authorisation was terminated by the Court of Protection. The respondent sought a declaration from the Court of Protection.

Issues arose as to whether: (i) S’s rights under article 8 of the European Convention on Human Rights had been violated at any point in or around 5 January and 23 December 2010; (ii) S had been deprived of his liberty between about 5 January and 14 April 2010 (period A); (iii) there had been any lawful authority for any deprivation of liberty during period A; (iv) S had been deprived of his liberty without lawful authority under schedule A1 to the Mental Capacity Act 2005, contrary to article 5(1)(e) of the convention between 15 April and 23 December 2010 (periods B to E); and (v) S had been deprived of a speedy review of his deprivation of liberty contrary to article 5(4) of the convention at any time during periods B to E, due to a failure to appoint an independent mental capacity advocate (IMCA) under section 39D of the 2005 act until November 2010, and/or to conduct a review of the best interests assessment under part 8 of schedule A1 to the 2005 act, and/or to refer the matter to the court sooner than October 2010.

The court held that:(1) It was established law that there was a positive obligation to respect the right to family life in the area of adult care. The starting point should be the normal assumption that mentally incapacitated adults would be better off if they lived with a family rather than in an institution. If the state was to justify removing vulnerable adults from their relatives, partners, friends or carers it could only be on the basis that the state was going to provide a better quality of care than they have hitherto been receiving (see [154] of the judgment).

On the evidence, by keeping S away from his home between 5 January and 23 December 2010, the authority had unlawfully breached his right to respect for family life, contrary to article 8 of the convention. Nowhere in the authority’s records of S’s year in care had there been any mention of the supposition that he should be at home, other things being equal, or the disadvantages to him of living away from his family, still less an attempt to weigh those disadvantages against the supposed advantages of care elsewhere. No attempt had been made at the outset to carry out a genuinely balanced best-interests assessment, nor had one been attempted subsequently (see [32], [155] of the judgment).

(2) Article 5(1) of the convention was only engaged if there was a deprivation of liberty, whereupon the safeguards provided by the deprivation of liberty regime under section 4A and schedule A1 to the 2005 act came into play. It was therefore necessary to identify whether a person was deprived of liberty by making a close examination of the specific circumstances. In such cases there would always be some restriction on liberty, the question was whether they were of a degree or intensity to amount to deprivation. A person might deprive another person of their liberty if they were giving effect to the relevant decision of the court or if the deprivation had been authorised by schedule A1 following a best-interests assessment. The purpose of a best-interests assessment was to ensure that a person was only deprived of his liberty where it was his best interests and necessary and proportionate in relation to the likelihood and seriousness of the harm that he might otherwise suffer (see [156]-[157], [165], [173], of the judgment).

In the instant case, by keeping S at the support unit during period A, the authority had unlawfully deprived him of his liberty contrary to article 5(1) of the convention. Key features had been S’s objection to being at the support unit, the objection of the second respondent and the total effective control of S’s every waking moment in an environment that had not been his home. By keeping S at the support unit during periods B to E, and notwithstanding the DOL authorisations granted by the authority, the authority had unlawfully deprived him of his liberty contrary to article 5(1) of the convention. The best-interests assessments had been flawed and consequently the authorisations had been flawed (see [32], [161]-[162], [182]-[187] of the judgment).

(3) It was settled law that there was an obligation on the state to provide effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities had, or ought to have had, knowledge. There was an obligation on the state to ensure that a person deprived of liberty was not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court. The nature of the obligation would depend upon the circumstances (see [200], [202] of the judgment).

In the circumstances, the authority had deprived S of his entitlement to take proceedings for a speedy decision by a court on the lawfulness of his detention contrary to article 5(4) of the convention. The authority had failed to: (i) issue proceedings in a timely manner; (ii) appoint an IMCA for S sooner than 29 October 2010; and (iii) conduct an effective review of the DOL best-interest assessments under part 8 of schedule 1A. Those omissions had had consequences and the authority had thereby defaulted on its obligations towards S (see [32], [202] of the judgment).

Hilton Harrop-Griffiths (instructed by Hillingdon Legal Services) for the authority; Aswini Weereratne (instructed by Miles & Partners on behalf of the Official Solicitor) for the first respondent; the second respondent appeared in person.