Just before Christmas, judgment was given in the case of J Council v GU and others.
GU suffered from a number of separable mental disorders including autism, obsessive compulsive disorder, dissocial personality disorder, mixed anxiety disorder and paedophilia.
He lacked capacity to make decisions about many things and it was agreed that it was in his best interests to live in Y care home indefinitely.
It was also agreed that he needed to be subject to fairly rigorous restrictions in his contact with other people and in his correspondence. This was related to the paedophilia. For example, GU wrote letters about his fantasies and left them in public places. It was judged necessary for him to be strip-searched, have his correspondence monitored and his calls listened to.
The judge could see that there was no question that he was deprived of his liberty. However, concerns had been expressed during the case by the Official Solicitor with regard to the restrictions and the impact of Article 8 of the European Convention on Human Rights – the right to respect for a person’s private and family life, home and correspondence.
The judge noted that if the rigorous restrictions were imposed at a high secure psychiatric hospital that they would be the subject of detailed procedures and safeguards prescribed in primary or secondary legislation. He was surprised that there was no equivalent under the Mental Capacity Act 2005.
A detailed policy arrangement running to 52 pages was agreed between the parties. There were three separate policies relating to searching, phone calls and correspondence. Each policy was to be reviewed by the mental health trust who would also receive monthly reports and scrutinise incident forms. In addition, the Care Quality Commission was to seek expert advice and case track GU, particularly with regard to allegations of abuse.
The judge was of the view that not every case where there is some interference with Article 8 rights will need to have in place detailed policies with oversight from public authorities. However, where there was going to be a longterm restrictive regime with invasive monitoring, then he felt that such policies were likely to be necessary.
The judge was critical of Parliament highlighting that if there were rules or guidance in place then this would not be necessary.