NYCC & ACCG v MAG (2016)
Keywords: Deprivation of liberty; Court of Protection powers; Accommodation.
This was an appeal against the refusal of the lower court (North Yorkshire County Council v MAG, GC and A Clinical Commissioning Group  EWCOP 64) to grant an order authorising the deprivation of liberty of MAG. The official solicitor opposed the appeal on behalf of MAG.
FACTS: The case concerned MAG, a 35 year old man with autism, ataxic cerebral palsy, hearing and visual impairments and a learning disability, living in his own home in the community as a tenant. A care package providing for 1:1 support at home and 2:1 support in the community, combined with additional restrictions, was in place in order to manage behaviour posing a risk to himself and others. All parties accepted that MAG lacked capacity to decide where to live and to consent to his care package and that the combination of restrictions currently in place amounted to a deprivation of liberty.
MAG had lived at the property since 2006, joint funded by North Yorkshire County Council and a CCG. The property was a one-bedroom ground floor flat with no outside space. It was too small to accommodate the use of a wheelchair and with no second bedroom for sleeping night staff. His support team consisted of a total of 11 workers of whom up to 4 workers provided care each day. He was able to access the community daily. His care package consisted (since December 2011) of 35 hours of 2:1 support each week (increased from 28 hours). At all other times he remained in his flat.
MAG was unable to stand independently. Outdoors he used a wheelchair with a harness (to protect both himself and others). However he was unable to use his wheelchair indoors due to insufficient space to manoeuvre. Therefore he mobilised by crawling and pulling himself along the floor and up on to chairs and his bed. This resulted in him sustaining painful bursitis in both knees and he had calluses on his knees and ankles. A Registered Learning Disability Nurse had advised that MAG’s current property did not meet his needs and that he should be able to live in a property which ensures he can live a life with dignity and comfort and which does not cause him physical or emotional harm.
Since November 2011, MAG’s deprivation of liberty in his home had been repeatedly authorised on an interim basis by the court. These orders continued in place until 13 July 2015 when District Judge Glentworth refused a further application. It was accepted by all parties that it was in MAG’s best interests to move to a less restrictive property which was wheelchair accessible and had outside space.
Since early 2013 NYCC had been searching for suitable alternative accommodation for MAG but to date had failed to offer any alternative.
The powers of the court
This case had been deferred to await the judgement in the appeal of Re MN (Adult)  EWCA Civ 411. Two crucial paragraphs from that judgement were particularly relevant here:
“The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection has no more power, just because it is acting on behalf of an adult who lacks capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than the adult if he had capacity would be able to obtain himself.” (Sir James Munby P in Re MN (Adult)  EWCA Civ 411 at 80)
So the options available to the court were those which the public bodies involved were prepared to offer.
A further comment concerned the extent to which it is legitimate for the court to attempt to influence such decisions by public bodies:
“The Court of Protection, like the family court and the Family Division, can explore the care plan being put forward by a public authority and, where appropriate, require the authority to go away and think again. Rigorous probing, searching questions and persuasion are permissible; pressure is not. And in the final analysis the Court of Protection cannot compel a public authority to agree to a care plan which the authority is unwilling to implement.” (Sir James Munby P in Re MN (Adult)  EWCA Civ 411 at 81)
It was argued by the Official Solicitor that this case differed from Re MN in that in this case the public bodies were both willing to provide and fund alternative accommodation. Therefore, it was argued, Glentworth DJ had not applied improper pressure by declining to authorise the deprivation of liberty.
However, Cobb J concluded that it was not the willingness of the public bodies which was the crucial issue. The choice actually available to the court at the time of the hearing was to authorise the deprivation of liberty in the current circumstances or not to do so. It was reasonably foreseeable that alternative accommodation would be available in the future (indeed by the time of the appeal a suitable property had been identified) but this did not alter the options available to the court in terms of an interim order authorising the deprivation of liberty.
The lawfulness of the care package (involving deprivation of liberty)
At first instance, Glentworth DJ had considered this issue by asking the single question:
Whether the elements of the care package which involved a deprivation of liberty were lawful
Cobb J held that this approach was in error. 2 separate questions needed to be asked:
i) Whether it was in MAG’s best interests to live at the property, noting that although he was deprived of his liberty, there was no alternative available which offered a lesser degree of restriction;
ii) Whether the accommodation provided to MAG was so unsuitable as to be unlawfully so provided, breaching MAG’s rights under the ECHR (notably Article 5). [Given that the court could not endorse a care plan which would involve or create breaches of ECHR rights]
On the first question, Cobb J concluded that, given the absence of alternatives, it was in MAG’s best interests to live at the property.
The second question required more detailed consideration. Article 5 is concerned with the reason for the detention, not the conditions of it. Cobb J referred to Ashingdane v United Kingdom (1985) 7 EHRR 528 which established that “Article 5(1)(e) is not in principle concerned with suitable treatment or conditions”. Thus a breach of article 5 would only be satisfied at the high threshold that place and conditions were “seriously inappropriate” (R ( Idira) v Secretary of State for the Home Department  EWCA Civ 1187 at 52).
The parties had jointly instructed a Consultant Developmental Psychiatrist, Dr. Rippon. Her report had concluded that:
- MAG was essentially happy in his home
- the restrictions that in place were relatively few considering MAG’s significant difficulties
- the restrictions were necessary for MAG’s own well-being
- MAG’s current accommodation had some significant benefits
- the current care package was meeting MAG’s needs
- MAG had the best quality of life given his disabilities and his own limitations.
Cobb J took the view that the place and conditions of detention would have to be different or of a significantly different character to those that MAG was living in for the test of serious inappropriateness to be satisfied. Therefore the accommodation provided was not so unsuitable as to be unlawfully provided.
The appeal was allowed and Glentworth DJ’s original refusal to authorise the deprivation of liberty was set aside.
This case reinforces and expands on the judgement in Re MN. The key points are that:
- The options available to the CoP in determining P’s best interests are limited to those which a capacitated adult would have in the same circumstances. This includes decisions as to whether it is in P’s best interests to be deprived of his/her liberty.
- The powers of the CoP are limited to enquiry and persuasion. The CoP does not have the power to compel a public body to take any particular decision or action, no matter how potentially beneficial to P. The CoP can only decline to endorse decision by a public body in the exercise of its statutory powers and duties where that course of action is unlawful.
- The court’s role in authorising a deprivation of liberty is to protect P against arbitrary detention by the state. The proportionateness of the deprivation is in relation to P’s needs and difficulties, not the conditions in which the deprivation arises.
Note: It may relieve the reader to know that suitable accommodation was identified for MAG and the move was scheduled to take place on about 15 December 2015.