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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)'
Citation preview
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
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
psychotic, violent & aggressive
seclusion for up to two weeks
in 2001 / 2002
reduction in number &
frequency of medical reviews
MHA patient at Ashworth
• seclusion policy in contravention to the MHA Code of Practice
• incompatible with Articles 3 and 8 ECHR
• seclusion policy was lawful
• Articles 3 and 8 were not breached
• is there a right to ‘residual liberty’?
• no - Article 5 did not apply
• ECtHR (July 2012)
• no breach of Article 3
• 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
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
these “must apply with greater force” when
considering whether there has been a further
deprivation of liberty
ECtHR
• no breach of Article 5
• context was considered, as in Austin
“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
• AND purpose also seems to have been considered…
seclusion, though coercive was “not imposed … as
a punishment”
“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
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
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
MARRAGE IMAGE
• DD had no capacity to consent to marriage, sexual relations, understand pregnancy or care for a child
• what formal steps needed to be taken in respect of the marriage?
• what are the court’s powers?
• 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’
• the marriage was not recognised as valid in the UK
• 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
“…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
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
LA IMAGE
• clear and articulate
• understanding and insight into care needs
• understood the need for support
• realistic as to physical limitations
LA IMAGE
• different individuals give different weight to different factors
• the danger of the ‘protection imperative’
LA IMAGE
• do not start with a ‘blank canvas’ - what are the options?
• LA had not identified a complete package of support
LA IMAGE
• what is the relevant information either way?
• P doesn't have to be able to weigh up every detail
LA IMAGE
• ‘reason’ and ‘purpose’, as in Cheshire, have to be considered in the light of the decision of the ECtHR in Austin … BUT
“…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
• significant physical restriction due to
disability
• but no more restrictive at nursing home
than own home
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
• not the kind of institution associated with DOL
• a well run nursing home putting the needs of residents first
• part of everyday was spent at home in bungalow “a sign of normality”
• no deprivation of liberty
“… 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
www.bjlegaltraining.com
http://thesmallplaces.blogspot.co.uk/
http://autonomy.essex.ac.uk/
http://www.mentalhealthlaw.co.uk/Main_Page
Mark Barnett | 0121 237 3942 | [email protected]