Salford City Council v (1) GJ, (2) NJ and (3) BJ (by their respective litigation friends) [2008] EWHC 1097 (Fam) EWHC 1097 (Fam)

This case, bought under the inherent jurisdiction of the High Court, concerned the legality of the Local Authority’s care plan for BJ, an adult without the capacity to determine where he should live or with whom he should have contact. The Local Authority had proposed arrangements which, they conceded did amount to a deprivation of liberty and contact arrangements between three incapacitated adults, GJ and his adoptive children BJ and NJ. An earlier hearing concluded that the proposed deprivation of liberty and restrictions on contact were lawful. The judge took the opportunity to reiterate the findings in PS that, prior to the Deprivation of Liberty Safeguards coming into effect, any deprivation of liberty which is reliant on authorisation through the inherent jurisdiction, must first be authorised by the Court on application by the Local Authority and the incapacitated person should be a party with support from a litigation friend. Where the request for authorisation of a deprivation of liberty is dependant on a possible future event the Court will need and very clear and detailed care plan and any order will specify the precise circumstances when the deprivation can occur.

What fell to be determined at this juncture was the appropriate ongoing review structure, both in terms of the nature of such reviews and the frequency with which these should occur. The Judge provided helpful guidance as to what form and in what frequency such reviews should occur but was also clear that each case must be considered in light of its own particular facts and that the decisions reached in this case should not be used as a template for all subsequent cases under the inherent jurisdiction.

Interim Reviews

Following an initial sanctioning of a deprivation by the Court they may still be issues of substance that require greater understanding, for this reason this judgment makes clear that as a general rule a review by the Court should take place (as an oral hearing) within four weeks. In cases where there has been no effective representation of the incapacitated person by a litigation friend this hearing should be much sooner. Prior to a final hearing the regularity of reviews by the Court should be set according to the facts of each case but any order must include the right of the incapacitated person and their litigation friend to apply, on little notice, for a review. The Judge made clear that this meant days rather than weeks. In addition the order should set out a clear timetable for what is to be done in the run-up to the review hearing, e.g. preparation and serving on parties of a full, updated bundle, a multi-disciplinary meeting between the local authority workers, the mental health team, other appropriate professionals and the Litigation Friend to determine an agreed case summary and draft directions where possible. Between any review by the court the Local authority must hold regular internal reviews (normally at least every 6-8 weeks) the frequency of which will be specified in each case either in the court approved care plan or the court order. Within these reviews the local authority must consider the issues both of capacity and of best interest Mr and the interests of the person who has been deprived of his liberty must be represented by an independent person (whose functions are as set out within the MCA deprivation of liberty safeguards).
Reviews post ‘final hearing’

The Court highlighted the need for judicial consistency in these cases including the hearing of any reviews wherever possible. It made clear that first review must occur no less that 12 months are the date of the final hearing and thereafter annually for the length of time that the deprivation of liberty continues, unless circumstances dictate that an earlier review is required. Again any order must provide the incapacitated person and their litigation friend liberty to apply for an earlier review. Again the Judge made clear that the litigation friend must continue to play and integral part of the review process, including taking an active part in any internal reviews conducted by the local authority. Judge made clear that for the purposes of keeping the litigation friend (including the Official Solicitor) engaged within this process the matter was not ‘concluded’ for the purposes of CPR until such a time as the deprivation of liberty came to an end.

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