On the 4th May 2010 Lord Justice Munby handed down judgment in the case of In the matter of A (dob 19.6.2001), A Local Authority v A and others  EWHC 978 Fam. The issue in the case was in what circumstances could there be a deprivation of liberty (“DOL”), engaging the protection of Article 5 of the European Convention on Human Rights, when a child or adult, lacking capacity, was being looked after by his family at home but was subject to restrictions on his or her liberty. (It will be recollected that the authorisation procedures in Schedule A1 of the Mental Capacity Act 2005 (“the Act”) only apply to hospitals and care homes; any DOL in a private home can only be authorised by the Court, under section 16 of the Act). In his lengthy and complex judgment Lord Justice Munby surveyed much of the case-law in the field and concluded that (i) local authorities were not responsible for DOLs simply because they provided care services to the persons concerned, (ii) local authorities could become responsible if they failed to investigate and, where appropriate, either provide supportive services to help consensually end a DOL or, if necessary, bring before the Court possible cases of DOL carried out by private individuals, (iii) in these cases, the restrictions on the liberty of the individuals concerned, imposed by loving family members for their protection and in the context of the family home, did not amount to DOLs. Lord Justice Munby began by rehearsing the basic ingredients of a DOL:
48. It was correctly common ground before me that in determining whether there is a 'deprivation of liberty' within the meaning of and engaging the protection of Article 5(1) three conditions must be satisfied ……………..:
i) an objective element of "a person's confinement to a certain limited place for a not negligible length of time";
ii) a subjective element, namely that the person has not "validly consented to the confinement in question"; and
iii) the deprivation of liberty must be one for which the State is responsible.
The first issue that Lord Justice Munby addressed was on what basis the State could be responsible, when the immediate cause of any DOL was the actions of private individuals i.e. the family of the child or adult concerned. It was suggested that local authorities might be responsible for DOLs in such cases when they were providing care services because they had “complete and effective control … through [their] assessments and care plans””. Lord Justice Munby gave that suggestion short shrift: “It needs to be said in the plainest possible terms that this suggestion, however formulated …….. is simply wrong in law. A local authority does not exercise “control”, it lacks the legal power to exercise control, over people in the situation of A or C or their carers”. So far so clear. Merely providing services under section 17 of the Children Act 1989 (i.e. where there is no care or emergency protection order), or community care services, under inter alia section 47 of the National Health Service and Community Care Act 1990 does not result in a local authority exercising sufficient “control” so as to become responsible for any DOL:
106. The local authority provides services and support to A and her family and to C and her family. It knows what goes on in the family home. But that is all. A local authority engaged in that way is not, in my judgment, so directly or actively involved in the domestic, family, regime as thereby to make the local authority – the State – responsible for that regime. Nothing has happened in the present cases remotely like the events which in Storck made the public authorities responsible.
107. Mr Sherman suggests that the degree of local authority involvement here justifies the contrary view. He says that the local authority is actively involved in the decisions to lock A and C in their bedrooms at night "by including this in its assessments and care plan", adding that "it positively encourages such actions and provides services to ensure that this can be undertaken with a minimum of risk." By reason of its knowledge of the circumstances and what he calls its active support of the actions taken by their carers, the local authority, he says, would be in breach of its positive obligations under the Convention if it failed either to prevent the deprivation of liberty or to seek the court's sanction to render it lawful.
108. Ms Freeborn describes the submission as puzzling, given what she says is the low level of the local authority's involvement in A's day to day care and the absence of any involvement in her overnight care. As Mr O'Brien says on behalf of B, the level of care provided to A is 4 hours per week. No other additional care or support is provided, apart from respite care which has recently been offered, and the local authority is not involved in the provision of any care for A during the period she is locked in her bedroom. And the decision to lock A in her bedroom was taken by B alone. Ms Ball on behalf of C says much the same. The local authority is not directly involved in the way in which C is restricted at home. The local authority may have endorsed her home arrangements but they have not caused them. Moreover, as she correctly points out, those arrangements did not need to be endorsed by the local authority in order to continue lawfully.
109. I agree with Ms Freeborn, Mr O'Brien and Ms Ball. There was no direct or active involvement by the local authority. It was not the decision-maker. It took no active steps to implement what the families had decided. Mere knowledge, in my judgment, is not enough. Knowledge may suffice to trigger a local authority's duty to investigate and, if appropriate, to invoke judicial assistance. But, as I have already said, there is no basis for attributing to the local authority here any failure in its performance of such obligations.
There is, however, what some might regard as a sting in the tail, in the form of a sharp reminder of the proper function of local authorities who do not have parental responsibility for children and who are not legally authorised to look after adults:
52. ………………. People in the situation of A and C, together with their carers, look to the State – to a local authority – for the support, the assistance and the provision of the services to which the law, giving effect to the underlying principles of the Welfare State, entitles them. They do not seek to be "controlled" by the State or by the local authority. And it is not for the State in the guise of a local authority to seek to exercise such control. The State, the local authority, is the servant of those in need of its support and assistance, not their master …………. while the local authority performs important monitoring and safeguarding roles, its major function in relation to C and others like her is to assess needs and provide services …..
53. This attitude is perhaps best exemplified by the proposition that "in the event that the parents were to disagree with the decisions of the local authority (which will always be based upon the opinion of relevant professionals) it would seek to enforce its decisions through appropriate proceedings if necessary" (emphasis added). This approach …………….. reflects an attitude of mind which is not merely unsound in law but hardly best calculated to encourage proper effect being given to a local authority's procedural obligations under Article 8 of the Convention ……………… Moreover, it is likely to be nothing but counter-productive when it comes to a local authority 'working together', as it must, with family carers. 'Working together' involves something more – much more – than merely requiring carers to agree with a local authority's 'decision' even if, let alone just because, it may be backed by professional opinion…………….
Any attempt to exercise control, where children or adults were being looked after by their families, required judicial assistance. However, as Lord Justice Munby went on to explain, local authorities providing care services were not absolved from all responsibility for any DOL carried out by a private individual. Far from it, because just as there were “positive obligations” inherent in Article 8 of the European Convention on Human Rights, there were positive obligations in Article 5:
84. In the same way the State owes a number of positive obligations under Article 5 to protect individuals from arbitrary interferences with their right to liberty, whether by state agents or by private individuals. As the Strasbourg court said in Storck v Germany (2005) 43 EHRR 96 at para , the State may have "positive obligations to protect … against interferences with … liberty carried out by private persons." Elaborating this, the Court continued at paras - (citations omitted):
"The Court has consistently held that the responsibility of a state is engaged if a violation of one of the rights and freedoms defined in the Convention is the result of non-observance by that state of its obligation under Art.1 to secure those rights and freedoms in its domestic law to everyone within its jurisdiction. Consequently, the Court has expressly found that Art 2, Art 3 and Art 8 of the Convention enjoin the State not only to refrain from an active infringement by its representatives of the rights in question, but also to take appropriate steps to provide protection against an interference with those rights either by state agents or private parties.
Having regard to this, the Court considers that Art 5(1), first sentence, of the Convention must equally be considered as laying down a positive obligation on the state to protect the liberty of its citizens. Any conclusion to the effect that this was not the case would not only be inconsistent with the Court's case law, notably under Arts 2, 3 and 8 of the Convention. It would, moreover, leave a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The State is, therefore, obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge”.
For those reasons, “the local authority was entitled to commence the proceedings in both these cases and was acting responsibly and reasonably in doing so” (paragraph 92). Lord Justice Munby drew the threads together, in this way:
95. For present purposes I can summarise my conclusions as follows. Where the State – here, a local authority – knows or ought to know that a vulnerable child or adult is subject to restrictions on their liberty by a private individual that arguably give rise to a deprivation of liberty, then its positive obligations under Article 5 will be triggered.
i) These will include the duty to investigate, so as to determine whether there is, in fact, a deprivation of liberty. In this context the local authority will need to consider all the factors relevant to the objective and subjective elements referred to in paragraph  above.
ii) If, having carried out its investigation, the local authority is satisfied that the objective element is not present, so there is no deprivation of liberty, the local authority will have discharged its immediate obligations. However, its positive obligations may in an appropriate case require the local authority to continue to monitor the situation in the event that circumstances should change.
iii) If, however, the local authority concludes that the measures imposed do or may constitute a deprivation of liberty, then it will be under a positive obligation, both under Article 5 alone and taken together with Article 14, to take reasonable and proportionate measures to bring that state of affairs to an end. What is reasonable and proportionate in the circumstances will, of course, depend upon the context, but it might for example, Mr Bowen suggests, require the local authority to exercise its statutory powers and duties so as to provide support services for the carers that will enable inappropriate restrictions to be ended, or at least minimised.
iv) If, however, there are no reasonable measures that the local authority can take to bring the deprivation of liberty to an end, or if the measures it proposes are objected to by the individual or his family, then it may be necessary for the local authority to seek the assistance of the court in determining whether there is, in fact, a deprivation of liberty and, if there is, obtaining authorisation for its continuance.
96. What emerges from this is that, whatever the extent of a local authority's positive obligations under Article 5, its duties, and more important its powers, are limited. In essence, its duties are threefold: a duty in appropriate circumstances to investigate; a duty in appropriate circumstances to provide supporting services; and a duty in appropriate circumstances to refer the matter to the court. But, and this is a key message, whatever the positive obligations of a local authority under Article 5 may be, they do not clothe it with any power to regulate, control, compel, restrain, confine or coerce. A local authority which seeks to do so must either point to specific statutory authority for what it is doing – and, as I have pointed out, such statutory powers are, by and large, lacking in cases such as this – or obtain the appropriate sanction of the court. Of course if there is immediate threat to life or limb a local authority will be justified in taking protective (including compulsory) steps: R (G) v Nottingham City Council  EWHC 152 (Admin),  1 FLR 1660, at para . But it must follow up any such intervention with an immediate application to the court.
Lord Justice Munby concluded this part of the judgment with 2 pieces of practical guidance for local authorities:
98. Before passing from this part of the case there are two final points which I should emphasise. In the first place, it is vital that local authorities embark upon the kind of investigations that Hedley J and I have described with sensitivity and with a proper appreciation of the limited extent of their powers. Social workers need to keep their eyes open and their professional antennae alert when meeting or visiting their clients. And if there is real cause for concern they must act quickly and decisively. But they must guard against being seen as prying or snooping on the families who they are there to help and support. Nothing is more destructive of the 'working together' relationship which in this kind of context, as in others, is so vitally important than a perception by family carers that the local authority is being heavy-handed or worse. I repeat in this context what I have already said in paragraphs - above.
99. The other point relates to how local authority applications to the court should be made. Too often, in my experience, local authorities seeking the assistance of the court in removing an incapacitated or vulnerable adult from their home against their wishes or against the wishes of the relatives or friends caring for them, apply ex parte (without notice) and, I have to say, too often such orders have been made by the court without any prior warning to those affected and in circumstances where such seeming heavy-handedness is not easy to justify and can too often turn out to be completely counter-productive: cf X Council v B (Emergency Protection Orders)  EWHC 2015 (Fam),  1 FLR 341, at para . I agree in every respect and would wish to associate myself with what Charles J said in B Borough Council v S (By the Official Solicitor)  EWHC 2584 (Fam),  1 FLR 1600, at paras -. And although I accept that the analogy is not exact, it seems to me that, generally speaking, a local authority will only be justified in seeking a without notice order for the removal of an incapacitated or vulnerable adult in the kind of circumstances which in the case of a child would justify a without notice application for an emergency protection order; as to which see X Council v B (Emergency Protection Orders)  EWHC 2015 (Fam),  1 FLR 341, and Re X (Emergency Protection Orders)  EWHC 510 (Fam),  2 FLR 701. That said, there will, of course, be cases in the adult jurisdiction where, just as in the corresponding children jurisdiction, a without notice application will be justified; indeed (see para ), B Borough Council was just such a case.
Lord Justice Munby finally addressed the question of whether there had been a DOL at all. Since the child and adult in the case lacked the capacity to consent to any confinement the “subjective element” (see the citation from paragraph 48(ii) of the judgment, above) was made out. After extensive reference to case-law, in particular a recent decision of Mrs Justice Parker in Re MIG and MEG  EWHC 785 (Fam), Lord Justice Munby concluded that, whilst a parent could be guilty of both the tort and the crime of falsely imprisoning their (minor or adult) child, there had not been any DOL in these cases. Indeed, the context of any restrictions on a person’s liberty was very important. Where the setting was the family home, and the persons imposing restrictions were the child’s loving family, a false imprisonment or DOL was much less likely, although of course each case turned to some extent on its own facts:
150.But for the fact that they are each locked in their bedrooms at night, Parker J's analysis and conclusions in relation to MIG would lead me, and for essentially the same reasons, unhesitatingly to the conclusion that neither A nor C is being deprived of her liberty. Their happy family life, in the heart of a caring and loving family, can hardly be further removed from the paradigm case of the prisoner or, indeed the immensely different case of someone subject to control order and curfew. Does the fact that, during the night time, they are locked in their bedrooms, alone make the difference? In my judgment it does not.
151.Having regard to the context, to the "concrete situation" in which A and C find themselves, in the setting of their family life, with their parents in the family home, neither of them is being deprived of her liberty, even during the period during the night time when she is locked in her bedroom.
152.Ms Freeborn, on behalf of A, urges me to have regard to the context – a caring and loving regime which enables A to continue to live within a loving child-centred family home surrounded by people who have her best interests as their motivation, where she is the centre of the family life and where she is untroubled by the measures to keep her and the rest of the family safe from her behaviour at night by locking her bedroom door.
153.Mr O'Brien, on behalf of B, says much the same. He points out that the restriction is to protect A from harm and that, as recognised by all the expert evidence, it is in her interests. And – an important point – he emphasises that A is not confined for the purposes of punishment but to safeguard her welfare.
154.Ms Ball makes the same submission in relation to C. She says that the universally praised care provided to C by her devoted parents partly takes the form of restrictions. But, she says, such restrictions are needed because of specific features of C's genetic condition, to help her lead the best life she can. C's parents, she say, are looking after her, not punishing her; promoting and improving her autonomy and dignity, not restricting them; and in supporting her as they do they are giving to her, not taking away. Such arrangements, she submits, are not even on the borderline between a deprivation and a mere restriction of liberty; the caring restrictions imposed by C's parents in the context of their home and family life together clearly fall, she says, outside the category of cases which Article 5 is intended to regulate. The restrictions upon C, imposed in the context of her family life, are, says Ms Ball, as 'normal' as they could conceivably be for someone with C's condition. They are not arbitrary at all but, rather, tailored to her needs, proportionate and imposed in good faith. Moreover, she says, it has to be remembered that A and C are inherently restricted by the manifestations of their genetic condition. The 'restrictions' imposed upon them do not in fact, she says, restrict their liberty in any meaningful sense of the word. Rather, in the context of their restrictive condition, they maximise their opportunities and help them to live their lives to the full.
155.I agree with these powerful submissions, just as I agree with the more specific submission that, taking account of what is referred to in Guzzardi as the "type, duration, effects and manner of implementation" of the night time regimes, what we have here is merely a restriction upon liberty – and, I should add, an entirely appropriate and proportionate restriction upon liberty – rather than a deprivation of liberty. Not the least important and telling of the factors which have to be evaluated, and which in my judgment point towards the conclusion that there is no deprivation of liberty here, are the facts (a) that the regime in question applies only at night time and at a time when, but for their disabling condition, A and C would otherwise be expected to be asleep and (b) that although locked in their bedrooms both A and C are checked at night by their parents who, moreover, respond if their daughter wants to come out.
156.Mr Sherman, taking the opposite stance, submits that there is here a deprivation of liberty because A and C are not only locked in their bedrooms at night but also remain under continuous supervision and control during the day, whether at home or elsewhere. For reasons which will, I hope, be apparent I do not accept this analysis.
So, in practical terms, how can local authorities investigate whether private individuals are depriving an incapacitated person of their liberty, in particular where the private individuals may not be the “loving family” depicted in the A case, but hostile and secretive? Under section 115 of the Mental Health Act 1983 (“the 1983 Act”) an approved mental health professional (“AMHP”) (with ID) may enter and inspect premises where a mentally disordered patient is living if he or she has reasonable cause to believe that the patient is not under proper care. A refusal of entry is an offence under section 129, but section 115 does not authorise forcible entry or the removal of the patient. A police officer often accompanies the ASW, to protect him or her and impress the residents but also because under section 17(1)(e) of the Police and Criminal Evidence Act and officer can enter and search premises without a warrant if it turns out that action is required to save “life or limb” or prevent “serious damage to property”. If that fails, the AMHP could obtain a magistrates’ warrant under section 135 of the 1983 Act if it appears on an information on oath laid by the AMHP that a person believed to be suffering from mental disorder is being ill-treated, neglected or kept otherwise than under proper control, or being unable to care for himself or herself is living alone. The warrant authorises a constable to enter if need be by force and remove the person concerned to a place of safety with a view to the making of an application under the 1983 Act “or of other arrangements for his treatment or care”. The power under s 47 of the National Assistance Act 1948 (“the 1948 Act”) remains on the statute books i.e. magistrates can authorise the forcible removal to suitable premises of persons in need of care and attention, subject to the further provisions contained in s 47. Academic commentary observes with a great deal of force that it can be difficult to reconcile s 47 with the Convention and it is not recommended. There is a range of other powers which might come in handy: ASBOs, parenting and support orders, injunctions under Housing Act 1996. Of particular interest may be:
- Powers of entry, inspection and personal removal under Public Health Act 1936, section 287;
- Powers to clean up a “filthy and unwholesome” dwelling: Public Health Act 1936, section 83; abatement notices under Environmental Protection Act 1990, section 80 where the dwelling is prejudicial to health or a nuisance;
- Possession proceedings, coupled with imaginative terms of suspension, requiring support to be accepted.
Depending on the time available, a solicitors’ letter, from the legal department or external solicitors, can be effective in persuading family members A to allow the social worker access. Best interests proceedings are often seen as rather self-contained, but every local authority should have local policies and multi disciplinary committees for protecting vulnerable adults, under No Secrets: Guidance on developing multi agency policies and procedures to protect vulnerable adults from abuse (LAC (2000) 7) (currently in the process of being revised). (See also Guidance for Restrictive Physical Interventions (July 2002)). The circumstances in which best interests proceedings are considered ought to be part of the local authority’s protection of vulnerable adults (“POVA”) procedures and it may be that POVA partners (for example the police) will sometimes be able to help the local authority solve a range of practical difficulties. Sometimes appointing an independent mental capacity advocate (“IMCA”) can help informally resolve matters. Obviously, a local authority must appoint an IMCA when section 39 of the Act applies:
39 Provision of accommodation by local authority
(1) This section applies if a local authority propose to make arrangements—
(a) for the provision of residential accommodation for a person (“P”) who lacks capacity to agree to the arrangements, or
(b) for a change in P's residential accommodation,
and are satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate for them to consult in determining what would be in P's best interests.
(2) But this section applies only if the accommodation is to be provided in accordance with—
(a) section 21 or 29 of the National Assistance Act 1948 (c 29), or
(b) section 117 of the Mental Health Act,
as the result of a decision taken by the local authority under section 47 of the National Health Service and Community Care Act 1990 (c 19).
However, an IMCA may also be appointed where there is a care review or an adult protection investigation and there is no-one else suitable (not being a paid carer) to represent the protected person’s interests (for example because all the family members are in dispute): see The Mental Capacity Act 2005 (Independent Mental Capacity Advocate) (General) Regulations 2006 SI 2006/1832 and The Mental Capacity Act 2005 (Independent Mental Capacity Advocate) (Expansion of Role) Regulations 2006/2883. Or some other locally available advocate may be appointed and might be useful. The Mental Capacity Act Code of Practice gives detailed guidance on how to try to settle disputes at Chapter 15, including the following:
- When disagreements occur about issues that are covered in the Act, it is usually best to try and settle them before they become serious.
- Advocates can help someone who finds it difficult to communicate their point of view. (This may be someone who has been assessed as lacking capacity.)
- Some disagreements can be effectively resolved by mediation.
- Where there is a concern about healthcare or social care provided to a person who lacks capacity, there are formal and informal ways of complaining about the care or treatment.
- The Health Service Ombudsman or the Local Government Ombudsman (in England) or the Public Services Ombudsman (in Wales) can be asked to investigate some problems that have not been resolved through formal complaints procedures.
257 Mental Capacity Act Code of Practice
- Disputes about the finances of a person who lacks capacity should usually be referred to the Office of the Public Guardian (OPG).
- When other methods of resolving disagreements are not appropriate, the matter can be referred to the Court of Protection.
- There are some decisions that are so serious that the Court of Protection should always make them.
What options are there for settling disagreements?
15.1 Disagreements about healthcare, social or other welfare services may be between:
- people who have assessed a person as lacking capacity to make a decision and the person they have assessed (see chapter 4 for how to challenge an assessment of lack of capacity)
- family members or other people concerned with the care and welfare of a person who lacks capacity
- family members and healthcare or social care staff involved in providing care or treatment
- healthcare and social care staff who have different views about what is in the best interests of a person who lacks capacity.
15.2 In general, disagreements can be resolved by either formal or informal procedures, and there is more information on both in this chapter. However, there are some disagreements and some subjects that are so serious they can only be resolved by the Court of Protection.
15.3 It is usually best to try and settle disagreements before they become serious disputes. Many people settle them by communicating effectively and taking the time to listen and to address worries. Disagreements between family members are often best settled informally, or sometimes through mediation. When professionals are in disagreement with a person’s family, it is a good idea to start by:
- setting out the different options in a way that is easy to understand
- inviting a colleague to talk to the family and offer a second opinion • offering to get independent expert advice
- using an advocate to support and represent the person who lacks capacity
258 Mental Capacity Act Code of Practice
- arranging a case conference or meeting to discuss matters in detail
- listening to, acknowledging and addressing worries, and
- where the situation is not urgent, allowing the family time to think it over.