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

@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…
mark.barnett@brownejacobson.com | 01392 458768

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

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