Re P (Scope of Schedule A1) (2010) COP 30/6/10

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Given that a standard authorisation extends to restraining P from leaving the accommodation, it must also extend to compelling him to return.

Summary of judgment

The following is an extract from 39 Essex Street, 'Court of Protection Newsletter', issue 4, December 2010 (link below).

Summary

Robert Eckford of the Official Solicitor's office has recently kindly brought to our attention an important decision of Mostyn J of June 2010 regarding the scope of the powers that are granted by a standard authorisation under Schedule A1 to the MCA 2005. The authors understand that there is no transcript of the judgment, but that no problems will be caused by the dissemination of the gist of the judgment in an entirely anonymised form.

Mostyn J was considering the extent of the powers granted to a local authority and a care home under existing (and any renewed) standard authorisations. He noted that it was common cause that these powers extended to a power to restrain P if he tried to leave the care home. The question for him was whether within those powers there was a power to coerce P to return if he refused to return to the care home from a period of leave. Mostyn J noted that it was understandably in P's interests that he should have access to society in the community and 'escape' the confines of the care home, and that the relevant PCT had agreed to fund 'befrienders' to encourage access to the community.

Mostyn J therefore asked himself whether the powers under the existing standard authorisation extend to coercing P back to the nursing home if P refused to return. He noted that it would be little short of absurd if the local authority and care home had powers to restrain P from leaving but not to compel him to return, and that the greater power must include the lesser. Mostyn J therefore declared that the power was implicit in the current and any future standard authorisation.

Comment

This decision is of some importance as a companion piece to and/or re-affirmation of the decision of DCC v KH (2009) COP 11729380, in which DJ O'Regan held that a DOLS standard authorisation was sufficient to return P on the long journey from contact sessions to his residential placement. Notwithstanding the conclusions expressed in these two cases, however, the authors' clear view (and one accepted in at least one case in which they have appeared in Archway) remains that standard authorisations are not apt to cover any deprivation of liberty arising whilst P is being taken to the placement covered by the standard authorisation.

External link

No Bailii link: no transcript

39 Essex Street, 'Court of Protection Newsletter', issue 4, December 2010