Mental capacity act and dols case law update - Mark Barnett - October 2012

Mental Capacity Act & Deprivation

of Liberty case law round up

• Hillcroft care home

• Residual liability

• Inherent Jurisdiction

• Capacity and DOLS

• LB Haringey v FG

• CC v KK

ill treatment or wilful neglect

of a person who lacks capacity

ill treatment of a person with

mental disorder

bailed until 14 November 2012

possible sentences of up to

five years

care workers arrested for suspected abuse of residents

psychotic, violent & aggressive

seclusion for up to two weeks

in 2001 / 2002

reduction in number &

frequency of medical reviews

MHA patient at Ashworth

• seclusion policy in contravention to the MHA Code of Practice

• incompatible with Articles 3 and 8 ECHR

• seclusion policy was lawful

• Articles 3 and 8 were not breached

• is there a right to ‘residual liberty’?

• no - Article 5 did not apply

• ECtHR (July 2012)

• no breach of Article 3

• seclusion could represent a further

deprivation of liberty within the meaning

of Article 5

• BUT no general rule that it would in all

cases

• whether or not there has been a further

DoL depends on the circumstances of the

case

starting point must be the person’s “concrete

situation and account must be taken of…the type,

duration, effects and manner of implementation

of the measure in question”

ECtHR

these “must apply with greater force” when

considering whether there has been a further

deprivation of liberty

ECtHR

• no breach of Article 5

• context was considered, as in Austin

“even when he was not in seclusion, he would

already have been subjected to greater

restrictions on his liberty than would normally be

the case for a mental health patient” ECtHR

• AND purpose also seems to have been considered…

seclusion, though coercive was “not imposed … as

a punishment”

“the very purpose of Ashworth hospital is to

house patients who cannot be reached by

treatment and whose persistent illness renders

them predictably dangerous…the aim of seclusion

… is to contain severely disturbed behaviour which is likely to cause harm to others”

ECtHR

greater scrutiny where personal

autonomy is already restricted

BUT “in accordance with the

law”

safeguards were protected …

external review

compulsory seclusion – interfere

with the right to private life

2003 - arranged marriage to AA

in Bangladesh

2009 - AA obtained spousal visa

and entered UK

fact of marriage came to the

attention of the LD team

interim declarations re: capacity

& contact made to protect DD

DD - British citizen with severe learning difficulties

MARRAGE IMAGE

• DD had no capacity to consent to marriage, sexual relations, understand pregnancy or care for a child

• what formal steps needed to be taken in respect of the marriage?

• what are the court’s powers?

• the CoP does not have an inherent

jurisdiction

• high court declare the marriage was not

recognised in the U.K.– KC v Westminster

• MCA provisions were not to be imported

into this evaluation

• high court does have to consider whether

a declaration was ‘necessary and

proportionate’

• the marriage was not recognised as valid in the UK

• effective social services intervention may

not have prevented marriage

• But “there was an effective lack of

communication between medical and

social services over a number of years”

• the duty of health and social work

professionals

“…unless and until there is any binding authority

available, courts may be safest in an approach…by

ascertaining the facts, applying the statutory

principles and reasoning a conclusion from that,

and treating each case as one to be decided on its

own facts” LB Haringey v FG & Ors - Hedley J

living in nursing home &

expressed a wish to go home

used the lifeline service approx

1,100 times in 6 months

Standard Authorisation in place

numerous capacity assessments

..concluded she lacked capacity

82 y/o woman - parkinson’s & vascular dementia

LA IMAGE

• clear and articulate

• understanding and insight into care needs

• understood the need for support

• realistic as to physical limitations

LA IMAGE

• different individuals give different weight to different factors

• the danger of the ‘protection imperative’

LA IMAGE

• do not start with a ‘blank canvas’ - what are the options?

• LA had not identified a complete package of support

LA IMAGE

• what is the relevant information either way?

• P doesn't have to be able to weigh up every detail

LA IMAGE

• ‘reason’ and ‘purpose’, as in Cheshire, have to be considered in the light of the decision of the ECtHR in Austin … BUT

“…the right course is to have regard to the

purpose for a decision as part of the overall

circumstances and context, but to focus on the

concrete situation in determining whether the

objective element is satisfied”

Baker J

• significant physical restriction due to

disability

• but no more restrictive at nursing home

than own home

Points to a deprivation

BUT

• no restraint or sedation

• door not locked

• with help, has free access around the

nursing home

• no restrictions on contact

• not the kind of institution associated with DOL

• a well run nursing home putting the needs of residents first

• part of everyday was spent at home in bungalow “a sign of normality”

• no deprivation of liberty

“… a provisional and very tentative view

might be that questions of reason, purpose, aim,

motive and intention are wholly irrelevant to the

question of whether there is a deprivation of

liberty….” Munby LJ

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http://www.mentalhealthlaw.co.uk/Main_Page

Mark Barnett | 0121 237 3942 | mark.barnett@brownejacobson.com