Mental Capacity Act and Deprivation of Liberty Safeguards Case Law update - Mark Barnett - June 2015

@BJhealthlaw

@BJhealthlaw

@BJhealthlaw

• where now for the streamlined process?

the Court of Appeal judgment in re: x

• PS v Bournemouth – a Mostyn J judgment

• what can the Court of Protection order?

In the matter of MN

@BJhealthlaw

• Cheshire West / P&Q – Supreme Court

decision that there is a deprivation of

liberty where the person is “under

continuous supervision and control and

not free to leave”

• to protect the person’s Article 5 rights -

there must be lawful authority for the

DoL

@BJhealthlaw

• resulted in a flood of applications under

the Deprivation of Liberty Safeguards to

Local Authorities for authorisations of dol

in care homes or hospitals

• still a huge number of cases outside the

scope of DoLS – ‘community DoLs’, e.g.

own home or supported living

@BJhealthlaw

• where the acid test is met in these cases

– authority for the dol must be sought

from the Court of Protection

• normally for commissioner of the services

to take to court

• re: x – President of the Family Court, LJ

Munby

@BJhealthlaw

• created a ‘streamlined process’ to deal

with anticipated large numbers of

applications to the Court of Protection

– largely paper based

– P did not need to be a party to the

proceedings

– but should be consulted as should those

with an interest in P’s welfare

• amendments to court rules and practice

directions to manage the process

@BJhealthlaw

• Court of Appeal – February 2015

• should P be a party to the proceedings in

the streamlined process?

• did the Court have jurisdiction?

• judgment 16 June

• sympathetic with the challenges – but ‐ critical of the unorthodox approach

‐ Court of Appeal has no jurisdiction to

overturn the re: x process

‐ should be properly challenged by way of

Judicial Review

‐ if the Court of Appeal had jurisdiction –

would say P needs to be joined to the

proceedings

@BJhealthlaw

“…it is not appropriate in my view for P’s participation in

proceedings to turn in any way upon whether he wishes to

participate, or indeed on whether he expresses and objection to

the form of care that is being provided or proposed. There is

too high a risk of slip ups in such a scheme. Article 5 requires

greater protection from arbitrariness”

@BJhealthlaw

• strictly comments are judicial opinion –

‘obiter’

• but are bound to carry some weight in

any Judicial Review proceedings

• can the re: x process survive?

@BJhealthlaw

• and if it does, just how streamlined will

it be?

– P a party – with a litigation friend?

– access to funding / representation

– oral hearings?

@BJhealthlaw

• widespread unlawful dol – and already

public bodies were finding it difficult to

get cases to the starting line

• enforcement of the right to

compensation?

• the Law Commission consultation – 7 July

• no new draft statute until end 2016

@BJhealthlaw

• do not see this as justification for not

making the applications

• does not affect the fundamentals that

there are numerous individuals who are

deprived of liberty with no authorisation

@BJhealthlaw

• continue to apply to the Court of

Protection under the re: x procedure

where appropriate

• to be safe - make P a party

@BJhealthlaw

• Mostyn J – 11 June 2015

• ‘Ben’

• issues being considered

– is package of care in his best interests?

– is it a deprivation of liberty?

– contact with Mum

@BJhealthlaw

• Mum (PS) a party, as was brother (BS)

• Ben not a party – but an IMCA report

before the court

• no issues on

– capacity

– the care package being in Ben’s best

interests

– contact

@BJhealthlaw

• Ben – autistic spectrum disorder and mild

LD

• dangerous behaviour – damage to

property, physical injury to others, self

harm and inappropriate sexualised

behaviour

@BJhealthlaw

• vulnerable to self neglect without

“continuous care”

• needs prompts for personal care, getting

up, washing hair and personal and dental

hygiene

@BJhealthlaw

• 2 bed bungalow

• 24 hour care with waking night carer

• constant observation and monitoring but

limited personal care when at home

• prompts/support to ensure he completes

tasks at appropriate times of day

@BJhealthlaw

• uses public transport with support and

shops for groceries

• encouragement to get up and with

personal care (on a 1:1 basis)

• staff cook for him due to incidents

putting himself and others at risk

• minimal evening / night needs – only

occasional support

@BJhealthlaw

• Ben has little insight to requirement for

medication or how to manage it but is

compliant

• Ben has privacy

• even when kitchen locked, he has free

access to bungalow and garden

@BJhealthlaw

• no locks on the doors – but there are door

sensors

• never tried to leave but if he did, staff

would follow him, engage and monitor

him in the community

• would try to persuade him to return and

escalate to managers, social workers and

mental health services if he refused (and

Police)

@BJhealthlaw

• needs 1:1 support in community – little

road traffic awareness and “staff would

intervene should he put himself at risk of

significant harm”

• Ben on occasion states he wants to leave

– either to go to a now closed unit or PS’s

home

@BJhealthlaw

“The intensive support and care… plainly does engage Article 5

ECHR, but not necessarily in the way suggested by the advocates

of the term-of-art definition promulgated by the Supreme

Court. Rather, it engages and gives effect to the right to

security mentioned in that Article.”

@BJhealthlaw

Deprivation of liberty…

“It is difficult to describe, but you know it when you see it”

@BJhealthlaw

“I cannot say that I know that Ben is being

detained by the state when I look at his

position. Far from it.”

@BJhealthlaw

• Ben is not being deprived of his liberty

– not under continuous supervision - he is

afforded privacy

– he is free to leave, albeit that, were he to

do so, his carers would seek to persuade

him to return

@BJhealthlaw

• Ben is not being deprived of his liberty

– but this persuasion would not cross the

line into coercion

– the dol line “would only be crossed if and

when the police exercised powers under

the MHA”

@BJhealthlaw

• difficult to reconcile with Lady Hale’s

judgment in Cheshire West

• even in similar cases, apply to court –

Mostyn J was not critical of the Local

Authority for bringing the case before the

court

@BJhealthlaw

• appeal by parents of MN against

judgment of Eleanor King J

• funding body, A CCG, had made it clear it

was not prepared to fund contact

between MN and his family at his parent’s

home

@BJhealthlaw

• A CCG stated that it was therefore not an

option for the CoP to consider

• Eleanor King J agreed – the CoP was

bound to choose between the available

options only

@BJhealthlaw

• function of CoP is to take decisions on

behalf of those who lack capacity which

they would otherwise take themselves

• CoP has no more power than any

individual to obtain resources or facilities

from a third party

• no hypothetical examination of best

interests

@BJhealthlaw

• CoP should not create a platform for

possible future proceedings in the

Administrative Court

• akin to principle that no individual has

the right to demand a particular form of

medical treatment

@BJhealthlaw

“The Court of Protection is thus confined to choosing between

the available options, including those which there is good

reason to believe will be forthcoming in the foreseeable

future….and in the final analysis the Court of Protection cannot

compel a public authority to agree to a care plan which the

authority is unwilling to implement”

@BJhealthlaw

“[there is a need to] avoid a situation where the already vastly

overstretched Court of Protection would be routinely asked to

make hypothetical decisions in relation to best interests with

the consequence that CCGs are driven to fund such packages…”

@BJhealthlaw

• Law Commission consultation 7 July 2015

• special webinar from us to discuss its

contents, potential implications and how

you can respond

@BJhealthlaw

Please get in touch if you have any questions

or wish to discuss the topics we’ve covered

further…

[email protected] | 01392 458768