Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 1377 (COP)

(1) By keeping Stephen away from his home, Hillingdon breached Article 8 and Article 5(1) (notwithstanding DOLS authorisations granted during later stages). (2) By (a) failing sooner to refer the case to the COP, (b) failing sooner to appoint an IMCA, and (c) failing to conduct an effective review of the best interests assessments, Hillingdon breached Article 5(4).

Related judgments

Neary v LB Hillingdon [2013] MHLO 87 (SEC)

Re Steven Neary; LB Hillingdon v Steven Neary [2012] MHLO 71 (COP)

Extract from judgment

32. I declare that Hillingdon has breached the rights of Steven Neary in the following respects:

(1) By keeping Steven Neary away from his home between 5 January 2010 and 23 December 2010, Hillingdon unlawfully breached his right to respect for his family life, contrary to Article 8 ECHR.
(2) By keeping Steven Neary at the support unit between 5 January 2010 and 14 April 2010, Hillingdon unlawfully deprived him of his liberty, contrary to Article 5(1) ECHR.
(3) By keeping Steven Neary at the support unit between 15 April 2010 and 23 December 2010, and notwithstanding the urgent DOL authorisation granted by Hillingdon as managing authority and the three standard DOL authorisations granted by Hillingdon as supervisory body, Hillingdon unlawfully deprived him of his liberty, contrary to Article 5 (1) ECHR.
(4) By failing to
(i) refer the matter to the Court of Protection sooner than 28 October 2010, and/or
(ii) appoint an Independent Mental Capacity Advocate for Steven sooner than 29 October 2010, and/or
(iii) conduct an effective review of the DOL best interests assessments under Part 8 of Schedule A1 of the Mental Capacity Act 2005,
Hillingdon deprived Steven Neary of his entitlement to take proceedings for a speedy decision by a court on the lawfulness of his detention, contrary to Article 5 (4) ECHR.

39 Essex Street email summary (9/6/11)

The following summary was written by Alex Ruck Keene and Victoria Butler-Cole. It is reproduced below with permission.

Please find attached a copy of the judgment handed down today by Peter Jackson J in the case of LB Hillingdon v Steven Neary & Ors. It is a judgment of sufficient importance on the question of deprivation of liberty that we consider that it merits dissemination ahead of our regular slot at the end of the month. It is essential reading for all Best Interests Assessors.

Full analysis will follow in the newsletter, but in headline terms, the LB Hillingdon accepted Steven Neary, a young man with disabilities, into respite care for a few days at the request of his father and then kept him there for a year (including a period whilst he was subject to the DOLS regime) in circumstances which, as the Judge found gave rise to a breach of his rights under Articles 5(1) and 8 ECHR. The judge further found that, by failing to (i) refer the matter to the Court of Protection sooner than 28 October 2010, and/or (ii) appoint an Independent Mental Capacity Advocate for Steven sooner than 29 October 2010, and/or (iii) conduct an effective review of the DOL best interests assessments under Part 8 of Schedule A1 of the Mental Capacity Act 2005, Hillingdon deprived Steven Neary of his entitlement to take proceedings for a speedy decision by a court on the lawfulness of his detention, contrary to Article 5 (4) ECHR.

Importantly, and the reason this case merits dissemination on a ‘rolling’ basis is that Peter Jackson J identified three important practice issues for those working in the field (paragraph 33):

(1) The purpose of DOL authorisations and of the Court of Protection
Significant welfare issues that cannot be resolved by discussion should be placed before the Court of Protection, where decisions can be taken as a matter of urgency where necessary. The DOL scheme is an important safeguard against arbitrary detention. Where stringent conditions are met, it allows a managing authority to deprive a person of liberty at a particular place. It is not to be used by a local authority as a means of getting its own way on the question of whether it is in the person’s best interests to be in the place at all. Using the DOL regime in that way turns the spirit of the Mental Capacity Act 2005 on its head, with a code designed to protect the liberty of vulnerable people being used instead as an instrument of confinement. In this case, far from being a safeguard, the way in which the DOL process was used masked the real deprivation of liberty, which was the refusal to allow Steven to go home.
(2) Decision-making
Poor decision-making processes often lead to bad decisions. Where a local authority wears a number of hats, it should be clear about who is responsible for its direction. Here, one sub-department of Hillingdon’s adult social services provides social work support and another is responsible for running facilities such as the support unit. At the same time, senior social workers represent the supervisory body that determines whether or not a DOL authorisation should be granted. In that situation, welfare planning should be directed by the team to which the allocated social worker belongs, although there will of course be the closest liaison with those who run the support facilities. The tail of service provision, however expert and specialised, should not wag the dog of welfare planning. Unfortunately, this case was characterised either by an absence of decision-making or by a disorganised situation where nobody was truly in charge and it was consequently possible for nobody to take responsibility. At various stages during the hearing, I asked Hillingdon witnesses to explain who was answerable for various actions, but no-one could say. Even when its position came under strong and public challenge towards the end of the year, and when at least one very senior social work manager had serious concerns about what was happening, this had no effect on the corporate position.
(3) The responsibilities of the supervisory body
The granting of DOL standard authorisations is a matter for the local authority in its role as a supervisory body. The responsibilities of a supervisory body, correctly understood, require it to scrutinise the assessment it receives with independence and a degree of care that is appropriate to the seriousness of the decision and to the circumstances of the individual case that are or should be known to it. Where, as here, a supervisory body grants authorisations on the basis of perfunctory scrutiny of superficial best interests assessments, it cannot expect the authorisations to be legally valid.

One particular point that merits development is the judge’s reasoning upon Article 5(4). At paragraph 196, he commented that:

“Lastly, I have already indicated that the protracted delay in applying to court in this case was highly unfortunate. There are repeated references, particularly by the service manager, to the burden being on Mr Neary to take the matter to court if he wished to challenge what was happening. That approach cannot be right. I have already referred to the decision in Re S, which rightly observes that the practical and evidential burden is on a local authority to demonstrate that its arrangements are better than those that can be achieved within the family. It will discharge the practical burden by ensuring that there is a proper forum for decision. It will not do so by allowing the situation it has brought about to continue by default. Nor is it an answer to say, as Hillingdon has done, that Mr Neary could always have gone to court himself, and that it had told him so. It was Steven’s rights, and not those of his father, that were in issue. Moreover, local authorities have the advantage over individuals both in terms of experience and, even nowadays, depth of pocket. The fact that an individual does not bring a matter to court does not relieve the local authority of the obligation to act, it redoubles it.”

He then went on to conclude, at paragraph 202, that “there is an obligation on the State [under Article 5(4) ECHR] to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court” (emphasis added). In the instant case, the combination of failures outlined above gave rise to that breach.

Initial commentary

This judgment is important at a number of levels, but for initial purposes we would single out the judge’s conclusions upon Article 5(4). There has been some degree of debate as to the circumstances under which local authorities are required to bring matters before the Court. Whilst the Code of Practice includes some guidance at paragraphs 8.7-8.8, as Peter Jackson J noted, they do not answer the question. Nor has there been a replacement for the endorsement of the Official Solicitor’s Practice Note which gave guidance as to the correct applicant under the old inherent jurisdiction (see Official Solicitor: Declaratory Proceedings: Medical and Welfare Decisions for Adults Who Lack Capacity [2006] 2 FLR 373Not on Bailii!).

This judgment strongly suggests that, even in this time of budget constraints, the onus is upon the local authority (or the PCT) to bring deprivation of liberty cases (whether under Schedule A1 or otherwise) before the Court in a timely fashion where there is any doubt as to whether: (1) it is in P’s best interests to be where he is; (2) whether (if relevant) he is deprived of his liberty; and (3) whether that deprivation is proportionate and in his best interests. To rely on P to enforce his own rights under Article 5(4) (or even to rely upon the fact that a family member may be in a position to seek to do so) would appear (and in our opinion entirely correctly) is to run the very serious risk that those rights amount to nothing.

Citations

London Borough of Hillingdon v (1) Stephen Neary (2) Mark Neary (3) EHRC

Case No: COP 1191258T

[2011] 4 All ER 584, [2011] 3 FCR 448

Other

Hearing: 23/6/11 to 27/6/11

Judgment: 9/6/2011

Before: Peter Jackson J

Mr Hilton Harrop-Griffiths (instructed by Hillingdon Legal Services) for the Applicant

Ms Aswini Weereratne (instructed by Miles & Partners on behalf of the Official Solicitor) for the First Respondent

Mr Mark Neary in person

Ms Elizabeth Prochaska (instructed by The Equality and Human Rights Commission) lodged written submissions

Mr Guy Vassall-Adams (instructed by the Solicitors for Independent Newspapers on 27 May 2011) only for Independent Print Ltd, Guardian News and Media Ltd, Times Newspapers Ltd, the BBC and the Press Association

External links

BAILII!

Transcript on judiciary website

Mark Neary, 'Get Steven Home: The Book' (blog): 'The story of a year long battle to enable a young autistic man to live at home' (quotation from blog)

Browne Jacobson Solicitors, 'Deprivation and delay – the severe consequences of getting DOLS wrong' (13/6/11)

Independent, 'Autistic man detained unlawfully' (9/6/11)

BBC, 'Hillingdon Council held autistic man Steven Neary unlawfully' (9/6/11)

Local Government Lawyer, 'Council unlawfully kept 21-year-old man in care for a year, says High Court judge' (10/6/11)

Andy McSmith and Jerome Taylor, 'A father's right to love' (Independent, 10/6/11)

Lucy Series, 'Safeguards and secrets' (The Small Places blog, 10/6/11)

Simon Lindsay, 'Playing safe' (Local Government Lawyer, 7/7/11)

Press Association, 'Ruling on autistic care dispute' (9/6/11)

Press Association, 'Autistic man "unlawfully detained"' (9/6/11)

Press Association, 'Autistic man "let down' by council"' (9/6/11)

Anna Raccoon, 'Rotten Borough? - the Vicious Borough of Hillingdon' (20/3/12). Mark Neary's application for occasional respite care in the form of a carer staying overnight was rejected: respite care is only available at the Positive Behaviour Unit (at which his son was unlawfully deprived of his liberty for a year).