2011 03 Incapacity

Friday 1 April 2011

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P (aka MIG) and Q (aka MEG) (by their litigation friend the Official Solicitor) v Surrey C C and others[2011] EWCA Civ 190 (Mummery, Smith and Wilson LJJ): in assessing whether care arrangements for severely disabled teenagers /young adults who lacked capacity might engage Article 5 and amount to a DOL, three elements had to be satisfied. There had to be an objective element of a person’s confinement to a certain limited place for a not negligible length of time; a subjective element that he or she had not validly consented to the confinement in question; and the confinement had to be imputable to the state. Considering the first limb, the Court of Appeal held that the relevant criteria were: whether objections to the arrangements had been expressed, whether drugs which might suppress the expression of objections had been used, the normality of the living arrangements and the opportunities for leaving the place of residence for the purposes of recreation, education and social contact. A person’s happiness is not relevant to the test save that it is relevant to the BI checklist at section 4 of the Mental Capacity Act 2005. The 2 teenagers/young adults had lived in foster homes/adult placements, had had their liberty restricted under highly regulated arrangements and had not been in reality free to leave. However, they had not been deprived of their liberty. Click here for the transcript.

AH (by his litigation friend RH) v Hertfordshire Partnership NHS Foundation Trustt and Ealing PCT[2011] EWHC 276 (CoP) (Peter Jackson J): the PCT proposed to move a disabled adult, who had severe learning difficulties, childhood autism and a history of challenging behaviour, from a large-scale Specialist Residential Service in a rural environment, to a self-contained flat, adapted for his needs, and in a house with three other flats to be occupied by severely disabled adults, located in London. The Court decided that the move was not in his best interests. He was better off in rural Hertfordshire because of his particular characteristics and because he had lived there almost all of his life; his current staff group could not be bettered and might not be equalled after a move which would deprive him of almost every familiar face, and there was no justification for the upset, possibly amounting to serious harm, that would be caused by even the most careful attempts to dismantle and rebuild his cherished routines. No transcript is yet available.

London Borough of Hillingdon v Steve Neary (by his litigation friend the Official Solicitor and Mark Neary & others) [2011] EWHC 413 (COP) (Peter Jackson J): COPR 90(1) states that the general rule is that a hearing in the CoP is to be heard in private. Representatives of the media applied for permission to identify the parties by their names pursuant to COPR Rule 91(2)(a). The application was granted. The circumstances of the First Respondent were already in the public domain to a considerable extent. If his claims and that of his father were made out, the facts deserved to be known to the public; and if they were not, it might be right for the record to be corrected. The media should be excluded if the evidence showed a real possibility of detriment or distress to the First Respondent of anything other than a trivial nature, but there was no evidence for such detriment. Given the extent of the information already publicly available, it was frankly unreal for the proceedings to continue under initials. This was an application of the law to the First Respondent’s particular circumstances and not a precedent or a change in practice. Click here for the transcript.

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