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Deprivation of liberty: A blatant disregard of the process

About The Author

Emily Clements (Former Team Member)

Emily is a Durham University Law graduate due to start as a paralegal in the London Banking & Finance Department of a Silver Circle firm in October 2014, and currently has her targets set on qualifying as a solicitor.

At the end of September judgment was delivered in the Court of Protection case of Somerset v MK (Deprivation of Liberty: Best Interests Decisions: Conduct of a Local Authority) [2014] EWCOP B25, following a 10-day court hearing in Bristol in May 2014. The judgment strongly criticised the actions of a Local Authority that were found to have wrongly deprived a 19-year-old autistic woman (P) of her liberty. Deprivation of liberty is a serious legal issue; both human rights law and the Mental Capacity Act 2005 ("MCA") are of central importance when dealing with a deprivation of liberty case.

The facts of the case were that P, a young woman who suffered with severe learning difficulties, and an autism spectrum disorder with nearly no verbal capacity, was living with her family. Problems arose when bruises to her chest were observed by her consultant paediatrician whilst P was staying in a respite placement, as her mother was on a holiday abroad for two weeks. A lack of proper investigation by the Local Authority into this medical report led to P being kept in respite for six months on the belief that it was in her best interest not to return home. At the respite facility, P was sedated with medicine before being moved to an assessment and treatment unit since it was subsequently agreed the respite facility was inappropriate for P. 

In truth, the injuries that the young woman had suffered were self-inflicted during periods of violent behaviour in which she had repeatedly hit herself in the chest. This information was easily discoverable had the Local Authority looked in to the issue to the extent that they should have done; P had been witnessed hitting herself hard and repeatedly on the chest during a school trip a few days earlier. This incident was contained in a school report and Ps GP had also been informed. However, the Local Authority failed to discover these records. It may have been more understandable had their ignorance lasted a matter of days or weeks, but months of depriving an individual of their right to liberty on a set of mistaken facts which had at no point been properly examined, cannot be excused. In total she was deprived of living with her family for nearly a year. Throughout this period P was displaying signs of agitation and her family were strongly contesting that being held in the facility was in her best interests.

Although there was no argument that the Local Authority had correctly diagnosed P as incapacitated to make her own decisions about her living, by virtue of the MCA, the law was otherwise applied incorrectly more than once. The Deprivation of Liberty Safeguards, which have been applicable since April 2009 when the Mental Health Act 2007 amended the MCA, are designed to ensure that a persons loss of liberty is lawful and that they are protected. The key elements are that the person must have a representative,  and that the representative must have the right to challenge a deprivation of liberty through the Court of Protection and the deprivation must be reviewed an monitored regularly. In this case the Local Authority should have applied to the Court of Protection and not doing so constituted a breach of their duties. Alternatively, Ps family could have applied to the Court of Protection, however in another breach the Local Authority failed to advise the family of this.

Although in December 2013 (several months after P had first been admitted) the Local Authority had carried out the necessary Deprivation of Liberty Assessment and a standard authorisation was granted, the Local Authority did not correctly assess Ps best interests and the safeguards were which not effectively applied. In fact, under the best intereststest contained in s. 4 MCA to be applied to vulnerable individuals such as P, it was in her best interests to go home to her family. When applying the Deprivation of Liberty assessment criteria, s. 4 MCA is very important. The test requires 'all relevant circumstances' to be taken into account. P had expressed a strong desire to return home to her family, and although it is settled that she did not have capacity at the time, the MCA guidance advises that the individuals expression of her own desires or wishes must be given sufficient weight when considering the different factors. This was not done.

It was found in the Court of Protection that Ps removal from her family was undoubtably unlawful; the Local Authority had also breached its duty to properly investigate Ps injuries. HHJ Marston explained in his judgment that 'a competently conducted investigation would have swiftly come to the conclusion that no or no sufficient evidence existed to be able to conclude Ps safety was at risk by returning to her home'.

As for P and her familys human rights, it is evident that both Article 5 (Ps right to liberty and security of person) and Article 8 (right to respect for ones private and family life) of the European Convention on Human Rights were breached. Notably the Local Authority in its position statement in April conceded that the loss of Ps society to the family amounted to an interference with respect to their private and family life contrary to Article 8 ECHR and that interference was not in accordance with the law'.

HHJ Marston condemned the Local Authoritys actions as 'a blatant disregard of the process of the MCA and a failure to respect the rights of both P and her family under the ECHR'.

In his judgment, HHJ Marston compared P's case to a similar case a few years earlier: London Borough of Hillingdon v Neary (2011) EWHC 1377. In that case Mr Justice Peter Jackson (paragraph 33) noted how the Deprivation of Liberty Scheme must not be misapplied or taken advantage of by local authorities:

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 persons best interests to be in that place at all. Using the DOL regime in that way turns the whole spirit of the MCA on its head, with a code designed to protect the liberty of vulnerable people being used instead as an instrument of confinement.

So how and why would a Local Authority let such an unacceptable deprivation of liberty occur in these circumstances? The worrying truth appears to lie not just in a mistake or even a disregard for the MCA but a complete lack of awareness on behalf of the Local Authority of what the correct procedure was. Even the senior social work manager accepted that there really was a lack of knowledge and understanding about the law amongst Local Authority workers. Irwin Mitchell, who acted as Ps litigation friend, have argued that the case demonstrated the importance of ensuring all staff in local authorities have the necessary standard of training and guidance on the MCA. Polly Sweeney at Irwin Mitchell said: '[t]his is sadly another example of local authorities believing that their safeguarding powers can override their duties under the Mental Capacity Act and the requirement that there is lawful authorisation in place for their actions, however well intended'.

As things stand, P is no longer being unlawfully restrained from living in her family home and the Local Authority has apologised for its 'procedurally inappropriate and unlawful actions'. However, the concern here is that this was not an especially complex or borderline case which the Court of Protection had to break new ground in deciding. Quite the contrary, the facts are relatively straightforward and the Court was only forced to become involved because the Local Authority seemed unable to correctly apply the law itself. It can surely be in no-ones best interests for the situation to have escalated to this level of judicial intervention.

The ordeal has had a 'devastating and profound impact on this family', as we can imagine it would on any family put in a similar position. This is why strengthening training and increasing awareness of the MCA and its legal requirements is a matter of urgency to avoid such situations reoccurring in the future. The case can be seen as a lesson to everyone that it is not just lawyers that require a thorough grip of the relevant legislation. The relevant provisions in the MCA have now been in force for five years and should be being practiced to a higher standard.

Whilst this case may provoke feelings of anger or blame towards the Local Authority, the more constructive way to interpret the outcome is that local authorities need to be supported to help protect other vulnerable individuals and their families. Understanding the MCA and its requirements is crucial. It is not simply a box ticking exercise that the Local Authority slipped-up on; the Local Authority's mistakes led to a traumatic year for a vulnerable individual and her family. The importance of the Deprivation of Liberty Safeguards must be emphasised to those working in local authorities and thorough training provided for anyone that needs it. The end of the judgment categorically emphasised that the focus now needs to be on 'building bridges' between the family and the Local Authority.

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Tagged: Medical Law & Ethics

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