Re C; C v Blackburn with Darwen Borough Council  EWHC 3321 (COP)
C was subject both to guardianship and the DOLS regime at a care home: (1) he was not ineligible for DOLS; (2) he was not deprived of his liberty, so the authorisation was set aside; (3) the authorisation had been lawful albeit perfunctory; (4) the restrictions were necessary; (5) the COP cannot decide on residence when a guardianship residence requirement remains in effect; (6) even if it could, it would only do so in exceptional circumstances; (7) the local authority was invited to reconsider the appropriateness of guardianship.
The numbering reflects the numbering in the brief summary above.
(1) He was not ineligible for DOLS as there was no conflict with the guardianship residence requirement.
(2) The DOLS authorisation was set aside because he was subject to a restriction, rather than a deprivation of his liberty: (a) although he was more aware of his predicament than the subjects of previous cases, the restraints on him were lighter; (b) the locked doors and requirement of supervision were not in themselves a deprivation of liberty, where their purpose is to protect a resident from the consequence of an epileptic fit, or harm caused by a lack of awareness of risk, or from self-harm; (c) the limit on the number of outings as a consequence of staffing levels did not tip the balance, when C had regular, nearly daily, access to the community and to his family; (d) although he would have liked to be able to live somewhere else, to have an unconfined life in the community, this was not realistically possible due to the extent of his difficulties: in contrast with a situation where a person has been removed from a home that is still realistically available (Cheshire West and Chester Council v P  EWCA Civ 1257 considered).
(3) (Obiter) The standard authorisation was not vitiated by the perfunctory way in which it was completed: the other assessment documentation made up for its deficiencies.
(4) (Obiter) Had C been deprived of his liberty the standard authoriation would not have been set aside: the restrictions were necessary for his safety and wellbeing, and possibly that of others.
(5) The Court of Protection lacks jurisdiction to determine place of residence while a guardianship residence requirement remains in effect: in general the MHA, where it applies, has primacy over the MCA (GJ v The Foundation Trust  EWHC 2972 (Fam) applied); on the other hand, genuinely contested issues about the place of residence of a resisting incapacitated person ought to be determined by the COP under MCA 2005 s16 (rather than under the guardianship or DOLS regimes);
(6) (Obiter) Even if the COP had jurisdiction it would only make an order that conflicts with the MHA guardianship regime in exceptional circumstances involving a breach of a person’s rights under Article 5 or Article 8 ECHR that was striking and required urgent correction.
(7) Instead of dismissing C’s welfare application, it was adjourned with liberty to apply while the local authority were invited to reconsider the appropriateness of guardianship.
Extract from judgment
24. Mr C’s situation raises multiple legal issues. It is a truly unhappy state of affairs that the law governing the fundamental rights and welfare of incapacitated people should be so complex. As this case shows, its intricacies challenge the understanding of professionals working in the field and are completely inaccessible to those for whose benefit the legislation has been devised, including those with a relatively high level of understanding, such as Mr C. This judgment, while keeping citation from statute, regulation, codes of practice and reported cases to the necessary minimum, still remains more focused on technical issues than I would like
Before: Peter Jackson J
At: Preston Combined Court Centre
Ms Barbara Hewson (instructed by Maxwell Gillott on behalf of the Official Solicitor) for CC
Mr Jonathan Butler (instructed by Legal Services) for the Local Authority
The Care Home did not appear and was not legally represented
Mr Simon Burrows (instructed by Hempsons) for the Care Trust
C v (1) Blackburn and Darwen Borough Council (2) A Care Home (3) Blackburn and Darwen Borough Council
B,  All ER (D) 203 (Dec)
Thanks to Victoria Butler-Cole (39 Essex Chambers) for providing the judgment.