E lacked capacity and was being deprived of his liberty at a residential unit by the local authority. They had breached his Article 5 rights by doing so without seeking a DOLS authorisation or court order, and had breached his Article 8 rights by actions including a failure properly to involve his carer. However, the court authorised continuing deprivation of liberty at the residential unit pending the final hearing as this was in his best interests. There is no threshold condition for an order under s16 depriving someone of his liberty, other than that P lacks the relevant capacity. When considering DOL there is a clear distinction between a placement at home, with family or an adult carer, and a residential placement. Hearsay from an incompetent witness is admissible but no weight would be given to E's statements.
The application concerned E, who was aged 19 and suffered from tuberous sclerosis which led to severe learning disability. The application was brought by G, E's sister. The respondents were E, the local authority, and his carer F. The interim hearing was initially to decide (a) whether or not E was deprived of his liberty and (b) interim residence, but the judgment covered other areas.
E was born in 1990 and cared for by F full-time since 1999. In 2004 he started attending the J Residential Home for respite care, and also attended a special school. Due to concerns over F's care, the local authority removed E to a residential unit at the V Unit, an emergency respite unit, in April 2009. In May 2009 he was referred to domiciliary care services at Z Road, and was moved in June.
(1) There was complete agreement that E lacked capacity and the judge found accordingly.
(2) E was, contrary to the Z Road's manager's opinion, deprived of his liberty both at Z Road and V Unit. Staff at Z Road exercised complete control over E's care and movements, and over assessments, treatment, contacts and residence. The concrete situation was that E was confined to Z Road except when he was escorted to school or on visits or activities, and he had no space or possession that was private or safe from interference or examination. He was unable to maintain social contacts because of restrictions placed on access to other people, including family members, and a decision had been made by the local authority that he would not be released into the care of others, or permitted to live elsewhere, unless such a move was considered appropriate. In assessing whether he was at liberty, it was also important to note that E had been prescribed Haloperidol, a neuroleptic medication, to reduce his agitation and more challenging behaviour: he had no control over the administration of that medication.
(3) The removal of E from home was not in accordance by a procedure prescribed by law and was an arbitrary act. There was no attempt to follow the legal procedure of urgent and standard authorisations or to obtain court approval. Article 5 had therefore been breached.
(4) The removal from F's care, the failure to give any or any adequate consideration to his family life with F at the time of the removal or for many months thereafter, the failure adequately to involve F in the decision-making process about E's future, and the impediments to contact between E and F for several months constituted a serious breach of his (substantive and procedural) Article 8 rights.
(5) The first court order, although its recital stated that no findings had been made on deprivation of liberty or best interests, did authorise detention from that point onwards as it said that "it was in E's best interests to reside at his current address". It was also argued that since E's continuing deprivation of liberty was entirely attributable to the wrongful actions of the local authority then any compensation awarded should extend to this ongoing deprivation: no concluded opinion on this was given.
(6) Article 5 and the Winterwerp case do not impose a threshold condition that the court may not entertain an application for an order under s16 MCA 2005 that would have the effect of depriving P of his liberty unless satisfied that his condition warrants compulsory confinement. The proposed DOL falls to be assessed as part of the best interests analysis. The only threshold which must be crossed in order to engage the court's powers under s16 is that the person concerned must lack capacity in relation to matters concerning his personal welfare, or property and affairs. Any assessment of best interests will inevitably involve a question of whether or not the deprivation is appropriate and proportionate. The fact that E was unlawfully deprived of his liberty does not result in a conclusion that he must now be released: the court can authorise ongoing DOL.
(7) The DOL safeguards apply only to hospitals and care homes. The manager of Z Road asserted that the unit was not a care home, because it did not provide accommodation as the residents sign a tenancy agreement. However, the tenancy agreement with E was a nullity: he did not have capacity to enter into it; and there is no exclusive possession, therefore no tenancy at all. No ruling was given at this interim hearing on whether or not Z Road was a care home as the court can authorise any DOL under s16 and s48.
(8) Common sense suggests that when considering DOL there is a clear distinction between a placement at home, with family or an adult carer, and a residential placement. In most cases the circumstances at home are more likely to fall into the category of a restriction, rather than a deprivation. Even if there would be a DOL at home with F, this would have made no difference to the best interests assessment.
(9) In civil litigation, hearsay reports of statements from a person who is not competent are inadmissible; however, the Court of Protection is permitted to admit such evidence. This applied to evidence of E's statements from which inferences of ill-treatment could be drawn. On the facts, however, given that E's communication capacity is extremely limited, no weight would be attached to his statements.
(10) It was in E's best interests to remain at Z Road until the final hearing: although there was a "very real possibility" that the final decision would favour residence with F there was "a good prospect" it would not.
(11) Further directions included reasonable contact with F and G to be arranged; a risk assessment and training relating to E returning to F to be carried out; a review hearing in May, and a final hearing in July, to be listed.
The following is an extract from Judiciary of England and Wales, 'Court of Protection Report 2010' (July 2011).
4. G v E and A Local Authority and F  EHWC 621 (Fam) (Mr Justice Baker, 26 March 2010). www.bailii.org/ew/cases/EWHC/Fam/2010/621.html E was born in 1990 and suffers from a rare genetic condition, tuberous sclerosis, as a result of which he has severe learning disability. Since 1995 F had been his foster mother. The local authority removed him from F’s care on 7 April 2009, when he was placed in the V Unit. On 15 June 2009 he was transferred to Z Road, a residential unit housing three men with special needs with a staff support ratio of 2:1. His sister, G, applied to the Court of Protection for the following declarations (which were granted):
However, the judge declared that in the interim it was in E’s best interests to continue to live at Z Road until the final hearing in July 2010. The judgment sets out in detail from paragraph 171 to 182 a very helpful “balance sheet” approach as approved by Thorpe LJ in Re A (Medical Treatment: Male Sterilisation)  1 FLR 549.
This judgment raises interesting issues at paragraph 104 et seq as to the capacity to enter into a contract (although it makes no reference to Social Security Commissioner Mesher’s decision CH/2121/2006, 13 November 2006 - that if the landlord is aware of the incapacity to enter into a tenancy at the time the tenancy is entered into, this has the effect of creating a valid (but voidable) contract - voidable by the tenant - and so housing benefit is payable for such an arrangement).
.,  2 FLR 294,  Fam Law 703
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