Incapacity

Friday 24 September 2010

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NM v Kent County Council [2015] UKUT 125 (AAC), Edward Jacobs, Upper Tribunal Judge: NM had diagnoses of learning disability with behavioural problems and paedophilic sexual interest. He was subject to guardianship under s. 7 Mental Health Act 1983 (MHA 1983) and also to a standard authorisation (DOLS) under MCA 2005 in respect of his residence in a care home. NM applied to a tribunal under s 72 MHA 1983 to be discharged from guardianship. The tribunal refused his application. On NM’s appeal to the Upper Tribunal, it was held that the tribunal’s analysis justified the need for guardianship despite the DOLS being in place; MCA 2005 dealt with a person’s best interests whereas the MHA dealt with the protection of the patient and the public. Judges could sit both simultaneously in the Court of Protection and the Upper Tribunal to allow a co-ordinated approach. Click here for the judgment.

W City Council v Mrs L (by her litigation friend PC) [2015] EWCOP 20, Bodey J: Mrs L was 93 and suffered from Alzheimer’s disease. She resided in her own home with her cat, with care and safety arrangements set up for her between her adult daughters and the local authority. The local authority applied to the court for authorisation of her deprivation of liberty. Mrs L, through her daughter as litigation friend, contended that she was not deprived of her liberty. The arrangements for the care of Mrs L included that the garden gate was kept shut, thereby preventing or deterring her from leaving the property; door sensors were activated at night so that if she went out of the flat her daughter who lived nearby or emergency services would be alerted so that she could be escorted back indoors; in an emergency, such as failure of the door sensors, it might be necessary to lock the front door and confine her to the flat. Local Authority specialist dementia carers visited 3 times a day. It was held that Mrs L was not being deprived of her liberty, applying Cheshire West. The facts that Mrs L was in her own home and that she wished to be there, although not decisive, were relevant. It was held that the restrictions on her were not continuous and complete as she had ample time to spend as she wished. The case was finely balanced but on the totality of the evidence the arrangements were restrictions and did not cross the line to being a deprivation of liberty. If that was wrong, on the facts, the deprivation of liberty would not be imputed to the State as this was a shared arrangement set up by agreement with a caring and pro-active family. The responsibility of the State was diluted by the strong role of the family. It was held that this was finely balanced decision taken on the facts of the particular case. Click here for the judgment. (Leonie Hirst of Garden Court Chambers appeared on behalf of W County Council.)

Note: This is one of few published decisions to date on the subject of deprivation of liberty of a person cared for in their own home. It will probably not provide a great deal of assistance in bringing greater certainty to the area.

Trust A v X (By the Child’s Guardian) (1) and A Local Authority (2) [2015] EWHC 922 (Fam), Keehan J: concerns the whether a child was deprived of his liberty in a hospital. D was aged 15. He suffered from mental disorders resulting in challenging behaviour. On the referral of his treating psychiatrist, he was informally admitted to Hospital B. The hospital Trust applied for a declaration that the deprivation of his liberty by the Trust was lawful and in his best interests. D was not Gillick competent to consent to his residence and care arrangements or any deprivation of liberty. It was held that the essential issue in the case was whether D’s parents could, in the proper exercise of parental responsibility, consent to his accommodation in Hospital B and thus render what would otherwise be a deprivation of liberty not a deprivation of liberty (i.e. the second limb in Cheshire West was not satisfied). On the particular facts of this case the consent of D’s parents to his placement at Hospital B fell within the “zone of parental responsibility”, so that they were able to consent to his placement. Click here for the judgment.

Newcastle City Council v PV (by his litigation friend, the Official Solicitor) (1) and the Criminal Injuries Compensation Authority (CICA) (2), [2015] EWCOP 22, Senior Judge Lush: PV had suffered a non-accidental injury as a baby resulting in significant cognitive and behavioural problems. Initially the CICA decided not to make an award because PV’s mother, who may have caused the injury, could potentially benefit. The council appealed that decision and the CICA eventually made an award for PV of over £2 million subject to a direction that the award should be held in trust. The council then made an application to the Court of Protection for various orders in relation to the award. Senior Judge Lush gave guidance on applications for CICA awards on behalf of persons lacking mental capacity including who can make the application to the CICA, and on the setting up a trust in respect of the compensation. Click here for the judgment.

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