The proceedings concerned PS, an elderly lady born in 1925. The evidence indicated that she lacked capacity in relation to issues of residence, contact, financial management and other welfare issues arising.
She was ready for discharge from hospital when her daughter, CA, informed the hospital that she was intending to discharge her mother into her own care rather than into a residential care and elderly mentally infirm unit where PS had lived since the previous year and which had been identified as suitable for meeting PS’s permanent needs at a meeting, convened by the local authority and attended by CA. Concerns were increased by CA’s request to the hospital that they not inform the local authority of what she was planning.
On a Friday evening the local authority made an urgent ex parte out-of-hours telephone application to a judge who made an an interim order to protect PS over the weekend, providing for PS to be placed in the T unit until a hearing before everyone could next come to court the following Tuesday.
The judge then granted an injunction, backed by a penal notice, restraining CA
from doing anything to obstruct or prevent PS from remaining there. But the local authority was understandably concerned that the injunction would not of itself enable the local authority to prevent PS’s removal if CA were to take the law into her own hands and seek to remove her mother from the home, albeit in defiance of the injunction. Equally, the local authority was concerned that if it took steps itself to prevent PS leaving or being removed from the T unit without the protection of an appropriate order of the court it might be unlawfully ‘depriving PS of her liberty’ in breach of Human Rights and thereby expose itself to a possible claim for compensation. The local authority sought an order permitting it to use
appropriate means to stop CA removing PS.
This raised two questions: first, does the court have jurisdiction to make such an order, and, secondly, if it has, when and how should the jurisdiction be exercised?
Also, PS was in receipt of both the State retirement pension and a small private pension paid into her bank account. She also had modest savings in a building society account. CA had practical control of these funds – she was empowered to sign cheques on her mother’s behalf. The local authority and the Official Solicitor were concerned that these funds could be at risk of dissipation and that the money is not being appropriately applied in meeting PS’s requirements. The local authority sought the appointment of a receiver. This raised two questions: first, does the court have jurisdiction to make such an order when it would be open to the local authority to make an application to the Court of Protection for the appointment of a receiver under Part VII of the Mental Health Act 1983.
On the point whether there is power to detain the judge was firmly of the view that the court has power to direct that an adult shall be placed at and remain in a specified setting such as a hospital, residential unit, care home or secure unit. It was equally clear to him that the court’s powers extend to authorising that person’s detention in such a place and the use of reasonable force (if necessary) to detain him and ensure that he remains there.
The judge was mindful of the constraints created by the HL v United Kingdom (Bournewood) litigation because detention in the sense in which it is here being used will inevitably involve a “deprivation of liberty” under Article 5. Since the court is a public authority for this purpose any exercise of its inherent jurisdiction must be compatible with the various requirements of Article 5.
He appreciated that an exception to the right to liberty is created by Art 5(e): “the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.”
He thought that this and the other parts of article 5 regarding due process added up to this:
a) First, our domestic law must meet the standard of “lawfulness” set by the
Convention, which requires that all law be sufficiently precise to allow
the citizen – if need be, with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a given
action might entail.
Specifically, our domestic law must give effect to the principle that an individual cannot be deprived of his liberty on the basis of unsoundness of mind unless three minimum conditions are satisfied: he must reliably be shown to be of unsound mind; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder.
b) Second, the detention must be in conformity with the essential objective
of Article 5(1), which is to prevent individuals being deprived of their liberty in an arbitrary fashion. Accordingly our domestic law must provide adequate legal protections and “fair and proper procedures” before someone is detained.
The judge noted that Article 5(4) provides the right to an individual deprived of his liberty to have the lawfulness of that detention reviewed by a court. In the case of someone deprived of his liberty on the ground of unsoundness of mind, there were two aspects to this, in his opinion:
a) First, the lawfulness of the detention has to be reviewed in the light of any domestic legal requirements and also in the light of the text of the Convention, the general principles embodied in the Convention and the aim of the restrictions permitted by Article 5(1)(e).
Thus the review must be wide enough to bear on those conditions which are essential for the lawful detention of a person on the ground of unsoundness of mind, in particular with a view to ascertaining whether there still persists unsoundness of mind of a kind or degree warranting compulsory confinement.
b) Second. given the very nature of the deprivation of liberty under consideration in cases within Article 5(1)(e), there must be a review of the lawfulness of the detention “at reasonable intervals.” Domestic law must provide “speedy” and “periodic control” at “reasonable intervals.”
He noted that in HL v United Kingdom the Strasbourg court found our procedures in respect of patients falling into the so-called ‘Bournewood gap’ to be gravely deficient. The applicant was found to have been deprived of his liberty in circumstances involving breaches of both Article 5(1)(e) and Article 5(4). There was some debate as to the adequacy of the inherent jurisdiction. The Strasbourg court was not impressed with the inherent jurisdiction as it was understood to operate at the time of the applicant’s confinement.
The judge said that proper compliance with section 6 of the Human Rights Act 1998 requires the judges to mould and adapt the inherent jurisdiction so that it is compatible with the requirements of Article 5, as well as with Article 8. He approved heartily of another judge’s view that “one of the advantages of a declaratory remedy, and in particular of an interim declaration, is that the court itself can do much to close the so-called Bournewood gap in the protection of those without capacity.”
The judge laid down his view of what compliance would require of our courts:
i) The detention must be authorised by the court on application made by the local authority and before the detention commences.
ii) Subject to the exigencies of urgency or emergency the evidence must establish unsoundness of mind of a kind or degree warranting compulsory confinement.
In other words, there must be evidence establishing at least a prima facie case that the individual lacks capacity and that confinement of the nature proposed is appropriate.
iii) Any order authorising detention must contain provision for an adequate review at reasonable intervals, in particular with a view to ascertaining whether there still persists unsoundness of mind of a kind or degree warranting compulsory confinement.
He implied that granting what’s called ‘liberty to apply’ on notice could achieve this sort of review.
The judge made an order declaring that:
“it is lawful being in PS’s best interests for the local authority by its employees or agents to use reasonable and proportionate measures to prevent PS from leaving [the care home in question].”
On the receiver point, section 37 of the Supreme Court Act 1981 confers power on the court to appoint a receiver whenever it appears to the court to be just and convenient to do so. The judge could see no reason why in principle the court in the exercise of the inherent jurisdiction should not, in an appropriate case, appoint a receiver of an incapacitated person’s property if that is an appropriate way of protecting his interests and promoting his welfare. Welfare, after all, in this context is not confined to someone’s physical or emotional welfare. It extends to embrace the material and financial.
The judge found it necessary in PS’s interests for her income and savings to be put under proper control, but that it would be an unnecessary burden and wholly disproportionate to the very modest amounts involved, to condemn the parties to the trouble and expense of separate proceedings in the Court of Protection.
So he appointed an appropriate officer of the local authority to be PS’s receiver, declaring that “it is in PS’s best interests that her financial affairs are managed by [DS], Director of Adult Services, Sunderland City Council (provided that the management of such financial affairs shall be limited to the collection and application of her income and the management of her bank and building society accounts)” (in effect, a short order of the kind that is being denied by the Court of Protection to local authorities at the moment) and ordering that:
“[DS] is hereby appointed to be receiver of the property money and income of PS until further order and is hereby authorised to take all such steps as may be necessary to preserve the same with power to pay and apply the income to or for the benefit of PS.”
The judge also granted an injunction to restrain CA operating PS’s bank or building society accounts.
The author believes that this case will be raising concerns of the following nature amongst those implementing the Mental Capacity Act and the current common law:
• What is the point of the Bournewood reforms, if the principle that one should apply to court first for sanction of deprivation of liberty, is one that is in fact enshrined in the law already?
• If the doctrine of necessity is merely a doctrine which provides a defence to legal criticism, and declarations merely clarify the law, why does a local authority have to go to court in advance of detaining someone, if they have a reasonable belief in necessity in a given situation? Could it be because it is required by European human rights law in relation the substantive and procedural interests of those from whom the authority is purporting to ‘rescue’ such people? If so, will the Bournewood proposals even be compliant with European law?
• What does the coming into force of the Mental Capacity Act ‘do’ to, and for, the inherent jurisdiction of the High Court – does the Act supersede it? Does it put it into abeyance where there is a new statutory remedy, or does it leave it there for all or perhaps only some purposes – those not covered by the Act?
• Should the Court of Protection be refusing to grant short orders to local authorities? If the current policy persists, will other local authorities follow suit and simply bypass that route, and go for a ‘best interests’ limited receivership, instead, under the Supreme Court Act?