Mark Barnett looks at: the Hillcroft care home, Residual liability, Inherent Jurisdiction and the Capacity and DOLS cases: 'LB Haringey v FG & Ors (No.1) [2011] EWHC 3932 (COP)' and 'KK v STCC [2012] EWCOP 2136 (26 July 2012)'

1. Mental Capacity Act & Deprivation of Liberty case law round up
•Hillcroft care home
•Residual liability
•Inherent Jurisdiction
•Capacity and DOLS
•LB Haringey v FG
•CC v KK

2. ill treatment or wilful neglect of a person who lacks capacity
ill treatment of a person with mental disorder
bailed until 14 November 2012
possible sentences of up to five years
care workers arrested for suspected abuse of residents

3. psychotic, violent & aggressive
seclusion for up to two weeks in 2001 / 2002
reduction in number & frequency of medical reviews
MHA patient at Ashworth

4. •seclusion policy in contravention to the MHA Code of Practice
•incompatible with Articles 3 and 8 ECHR

5. •seclusion policy was lawful
•Articles 3 and 8 were not breached
•is there a right to ‘residual liberty’?

6. •no - Article 5 did not apply

7. •ECtHR (July 2012)
•no breach of Article 3

8. •seclusion could represent a further deprivation of liberty within the meaning of Article 5
•BUT no general rule that it would in all cases
•whether or not there has been a further DoL depends on the circumstances of the case

9. starting point must be the person’s “concrete
situation and account must be taken of…the type,
duration, effects and manner of implementation
of the measure in question”
ECtHR

10. these “must apply with greater force” when
considering whether there has been a further
deprivation of liberty
ECtHR

11. •no breach of Article 5
•context was considered, as in Austin

12. “even when he was not in seclusion, he would
already have been subjected to greater
restrictions on his liberty than would normally be
the case for a mental health patient”
ECtHR

13. •AND purpose also seems to have been considered…

14. seclusion, though coercive was “not imposed … as
a punishment”

15. “the very purpose of Ashworth hospital is to
house patients who cannot be reached by
treatment and whose persistent illness renders
them predictably dangerous…the aim of seclusion
… is to contain severely disturbed behaviour which is likely to cause harm to others”
ECtHR

16. greater scrutiny where personal
autonomy is already restricted
BUT “in accordance with the law”
safeguards were protected …
external review
compulsory seclusion – interfere with the right to private life

19. 2003 - arranged marriage to AA in Bangladesh
2009 - AA obtained spousal visa
and entered UK
fact of marriage came to the attention of the LD team
interim declarations re: capacity & contact made to protect DD
DD - British citizen with severe
learning difficulties

20. MARRAGE IMAGE
•DD had no capacity to consent to marriage, sexual relations, understand pregnancy or care for a child

21. •what formal steps needed to be taken in respect of the marriage?
•what are the court’s powers?

22. •the CoP does not have an inherent jurisdiction
•high court declare the marriage was not recognised in the U.K.– KC v Westminster
•MCA provisions were not to be imported into this evaluation
•high court does have to consider whether a declaration was ‘necessary and proportionate’

23. •the marriage was not recognised as valid in the UK

24. •effective social services intervention may not have prevented marriage
•But “there was an effective lack of communication between medical and social services over a number of years”
•the duty of health and social work professionals

25. “…unless and until there is any binding authority
available, courts may be safest in an approach…by
ascertaining the facts, applying the statutory
principles and reasoning a conclusion from that,
and treating each case as one to be decided on its
own facts”
LB Haringey v FG & Ors - Hedley J

26. living in nursing home & expressed a wish to go home
used the lifeline service approx 1,100 times in 6 months
Standard Authorisation in place
numerous capacity assessments ..concluded she lacked capacity
82 y/o woman - parkinson’s
& vascular dementia

27. LA IMAGE
•clear and articulate
•understanding and insight into care needs
•understood the need for support
•realistic as to physical limitations

28. LA IMAGE
•different individuals give different weight to different factors
•the danger of the ‘protection imperative’

29. LA IMAGE
•do not start with a ‘blank canvas’ - what are the options?
•LA had not identified a complete package of support

30. LA IMAGE
•what is the relevant information either way?
•P doesn't have to be able to weigh up every detail

31. LA IMAGE
•‘reason’ and ‘purpose’, as in Cheshire, have to be considered in the light of the decision of the ECtHR in Austin … BUT

32. “…the right course is to have regard to the
purpose for a decision as part of the overall
circumstances and context, but to focus on the
concrete situation in determining whether the
objective element is satisfied”
Baker J

33. •significant physical restriction due to disability
•but no more restrictive at nursing home than own home

34. Points to a deprivation BUT
•no restraint or sedation
•door not locked
•with help, has free access around the nursing home
•no restrictions on contact

35. •not the kind of institution associated with DOL
•a well run nursing home putting the needs of residents first

36. •part of everyday was spent at home in bungalow “a sign of normality”

37. •no deprivation of liberty

38. “… a provisional and very tentative view
might be that questions of reason, purpose, aim,
motive and intention are wholly irrelevant to the
question of whether there is a deprivation of
liberty….”
Munby LJ

39. www.bjlegaltraining.com http://thesmallplaces.blogspot.co.uk/ http://autonomy.essex.ac.uk/ http://www.mentalhealthlaw.co.uk/Main_Page

40. Mark Barnett | 0121 237 3942 | mark.barnett@brownejacobson.com