Welcome to the February 2016 Newsletters. Highlights this month include:
Alex Ruck Keene Victoria Butler-Cole Neil Allen
Annabel Lee Anna Bicarregui
Simon Edwards (P&A)
- In the Health, Welfare and Deprivation of Liberty Newsletter: Article 5, best interests and the COP; 16 and 17 year olds and deprivation of liberty; and the views of the Official Solicitor on ‘using and weighing’;
- In the Property and Affairs Newsletter: EPAs and gratuitous care; the CICA and the COP; and the perils of putting oneself forward as panel deputy;
Guest contributor Beverley Taylor
Scottish contributors Adrian Ward
Table of Contents
- In the Practice and Procedure Newsletter: the transparency pilot and how to survive it;
- In the Capacity outside the COP Newsletter: the National Mental Capacity Action day and how to take part; capacity and organ donation; and legislative developments both sides of the border in Ireland;
- In the Scotland Newsletter: Scottish Government consults on a review of the AWI; two important MWC reports and an obituary of Ian McMurray
And remember, you can now find all our past issues, our case summaries, and much more on our dedicated sub-site here. ‘One- pagers’ of the cases in these Newsletters of most relevance to social work professionals will also shortly appear on the SCIE website.
Article 5 ECHR – Deprivation of liberty
This appeal against the decision of District Judge Glentworth that we covered here raises important issues about the task of the court when considering whether to approve arrangements amounting to a deprivation of liberty. By way of refresher, the case concerned a 35 year old man with a number of disabilities. MAG had lived at his current placement since 2006. The property was a one bedroomed ground floor flat. He could not stand independently and the flat was too small to accommodate the use of his wheelchair. At home he mobilised by pulling himself along the floor and up on to chairs and his bed which had resulted in painful bursitis in both knees and calluses to his knees and ankles. It was agreed that MAG was deprived of his liberty for the purposes of Article 5(1).
The local authority had sought declarations and decisions relating to MAG. The case had been before the court for four years, during which time the Official Solicitor had requested the local authority to identify alternative accommodation options. Those commissioning the placement also agreed that it was in his best interests to live in a less restrictive property if one became available. NYCC sought final declarations on the basis that there were no immediate alternative residential options and it was in MAG’s best interests to
1 Neil remaining instructed on behalf of MAG, and in line with standard policy, he has not contributed to this Note.
continue to be deprived of his liberty in his current placement. Having found culpable delay on the part of NYCC in failing to find an alternative, the District Judge refused to continue an authorisation that risked breaching MAG’s Article 5 rights.
Relying on the recent Court of Appeal case of Re MN, the local authority and the CCG involved in MAG’s case argued that the Court had no jurisdiction to require it to find another property which would not ordinarily be available to MAG. Cobb J had little hesitation in holding that District Judge Glentworth had erred, and allowed the appeal. His discussion was wide-ranging and addressed in stages below, but as an overarching observation, he indicated that he considered that the District Judge had “uncharacteristically appear[ed] to have allowed her understandable concern about MAG's living circumstances, and her palpable frustration at what she saw as NYCC's tardiness in resolving his accommodation issues, to distract her from following a clear path to outcome. The result is one which I consider is unsupportable, and wrong.”
Importantly, Cobb J considered that the questions posed by the judge (framed by Counsel for the Official Solicitor) had been wrong. These were: “(1) whether the elements of the care package which involve a deprivation of liberty are lawful; and, if so, (2) whether that deprivation of liberty should be authorised by the court; and, if it is; and (3) the nature and frequency of the necessary ongoing reviews of the care arrangements by the court.”
Cobb J noted that:
23. All substantive decisions in the Court of Protection are governed by the best interests test, and yet the judge did not pose such a question for herself. She went straight to
consider "whether the elements of the care package which involve a deprivation of liberty are lawful". In my judgment, there was a need to break her decision-making down into two separate questions which required consideration in this case, namely:
- Whether it is in MAG's best interests to live at the property, noting that although he is deprived of his liberty, there is no alternative available which offers a lesser degree of restriction;
- 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).”
Cobb J held that “[i]t appears that in answering her single question the judge may have avoided consideration of MAG's best interests altogether, and conflated the issues arising in relation to deprivation of liberty raised by the separate questions, causing confusion and leading her to reach the wrong conclusion. Had she asked herself the questions posed in  above, she would, I apprehend, have answered the first question in the affirmative, and the second in the negative. She would accordingly have gone on to grant the authorisation.” It was important in this consideration that no party before District Judge Glentworth had disagreed that it was, at that point, in MAG’s best interests to reside at the property. “[t]here was evidence that he was happy there; the judge conceded that the placement had its positives, as she made clear in her supplemental judgment on 13 July 2015, §10 ("the fact that there are positives in relation to the existing accommodation is a factor to be taken into account"). The deprivation of liberty arising on the implementation of the care package for MAG is a necessary consequence of the least restrictive available option which best
promotes his needs (see also  of Re NRA & Others  EWCOP 59).”
As to the second question, Cobb J held that “the judge would be required to consider the particular type of accommodation in which MAG is/was deprived of his liberty, and the purpose of the detention. Neither MAG's property, nor the manner in which his care package was delivered (imposing the deprivations of liberty identified in  above) was so unsuitable as to be unlawful; there was no breach of MAG's rights under the ECHR, and, significantly, the judge did not find one” (paragraph 26, emphasis in the original). Relying in particular on the Strasbourg authorities relating to the scope of Article 5(1) reviewed in R(Idira) v Secretary of State for the Home Department  EWCA Civ 1187, Cobb J noted that “[w]hat one collects from these authorities, and indeed the others referred to, is that context is everything. The court must consider the relationship between the ground of permitted deprivation of liberty and the place and conditions of the detention; cases concerning those who lack capacity are plainly akin to […] mental health cases [such as Ashingdane v United Kingdom (1985) 7 EHRR 528]. In this case, deprivation of liberty of a person who lacks capacity in his own home, under a care plan delivered by qualified care providers, is most unlikely to breach his Article 5 rights; indeed, the MCA 2005 specifically provides statutory authorisation to deprive someone of their liberty in this way.” “It follows from what I have discussed above,” Cobb J continued, “that the second question would have to have been answered in the negative, and the application for authorisation would therefore have been granted.”
Cobb J made clear that he considered that DJ Glentworth had erred in distinguishing Re MN which, on a proper analysis, applied across all
welfare determinations, including those which involved deprivation of liberty. Although he agreed that the court could not endorse a care plan that involved or created breaches of MAG’s ECHR rights, he concluded that, the judge had, in fact, not found this to be the case (at most, that there was a risk of a breach). More fundamentally, and applying Idira, he concluded that, given that Article 5 ECHR is concerned with the reason for detention, not the conditions of it, a high threshold would have to be crossed and a breach would only arise if there was a finding that the place and condition of detentions was “seriously inappropriate” (paragraph 43).
Cobb J held that DJ Glentworth had inappropriately sought by making a direction that the Council "must take the steps necessary to ensure that there is no breach" of statute to do that on MAG's behalf which MAG, if he had capacity, would not himself have been able to achieve in the absence of some public law remedy. “[L]ike MAG, the Court of Protection is confined to choosing between available options: see  of Charles J's judgment in Re NRA & others (above: ) and  of Lady Hale's judgment in Aintree University Hospitals NHS Trust v James  UKSC 67,  AC 591” (paragraph 44). In similar vein, he found that the effect of her refusal to grant authorise the deprivation of liberty was (and was intended to) require NYCC to take urgent steps to locate and provide alternative accommodation – such was, on the facts, to exert impermissible pressure.
Cobb J held that DJ Glentworth had exceeded her functions as regards her inquiry into NYCC’s conduct and reached essentially unfair conclusions. He also found it “highly regrettable” that a case was put on MAG’s behalf that Article 3 ECHR had been raised, when this was not an Article 3 case.
Cobb J concluded with two procedural points:
- First, he noted that this was a case which illustrated the need urgently to bring about case management reforms, the case having lasted (in his view) far too long, and at estimated combined costs of more than
- Second, and without making a formal finding that she was wrong, he expressed his concern that DJ Glentworth had not (as she had done for some 3 ½ years prior to the hearing, and she could have done pending appeal) continued the interim authorisation. The “upshot was that MAG was unlawfully deprived of his liberty in his home. To their immense credit, the care workers continued to work on the case, with MAG, albeit that there must have been a question about the frustration of the contract, and the validity of any insurance for their activities. Ironically, by refusing the protection of the MCA 2005, MAG lost the right of review of his situation.”
This case illustrates precisely why it was a fundamental error to try to ‘hook’ deprivation of liberty to the Mental Capacity Act. For purposes of Article 5(1)(e) ECHR, questions of best interests are – strictly speaking – irrelevant, and the only tests that apply (other than the presence of unsoundness of mind) are whether the deprivation of liberty is necessary and proportionate.
On a proper ECHR analysis, the questions posed by DJ Glentworth were therefore entirely correct. Yet, as Cobb J noted, they led her astray as
regards the approach demanded by the Mental Capacity Act, which requires consideration of best interests. In a case such as the present, in which, in reality, there was only one placement on offer, it is frankly artificial to talk of a best interests decision being taken on behalf of MAG by the court. Yes, the court theoretically could have decided on behalf of MAG not to continue living at the placement and simply to live on the streets. In reality, however, no such option could have been chosen, the court itself being under a positive obligation to secure his Articles 2, 3 and 8 ECHR rights, all of which would be likely to have been breached had he simply departed the placement and lived on the streets. Further, the effect of a best interests decision being taken on his behalf that he should live at the placement in the absence of any alternative would place a serious hurdle in his way as regards the bringing of any judicial review application (unless that best interests decision was very firmly expressed as being taken on his behalf as between (1) living at an unsatisfactory placement or (2) being on the streets).
It would be far more honest if the court in a situation such as this where there is only one placement on offer were solely required to look with a critical eye at whether the deprivation of liberty was really necessary (and/or any other interference with ECHR rights was justified).
Applying the high threshold set by the authorities analysed in Idira, it may very well be that it is only a rare case that the court can properly find that the placement and conditions are so deficient that Article 5(1) ECHR will be breached, but at least the court would not be asking itself essentially unrealistic questions about the individual’s best interests.
Absent from the judgment at first instance or that
before Cobb was any reference to Article 8 ECHR (although we understand that submissions were addressed to him on this aspect). At first blush, it would appear obvious that MAG was subject to a serious interference with his rights under Article 8 ECHR, and if DJ Glentworth were to have considered the question of whether that interference was necessary and proportionate, she may (a) have had to cross a lesser threshold than that imposed by Article 5; and (b) properly been able to find such on the facts of the case. If so, then – as with Munby LJ in A Local Authority X v MM – she might properly have found herself in a position where she could decline to consent on his behalf of the arrangements as representing a breach of his Article 8 rights, thereby putting the local authority to the choice of amending the care plan and the arrangements for MAG or having to seek the dismissal of the proceedings (and hence leaving itself open to a claim being brought on MAG’s behalf for breach of Article 8).
The dividing line between the jurisdiction of the COP and the Administrative Court – and the consequent delicate dance required of judges2 – is likely to remain an issue for some time come, not least as the Government has recently confirmed that the appeals (or, more strictly, review) process for the Care Act will not be
introduced until 2020. In an ideal – or at least better – world, the solution to the problems thrown up by this case and that of MN is to secure access for all to a body which is properly able to review the decisions taken by public bodies as regards the delivery of care.
- See in this regard in the medical context also the comment by Alex forthcoming in the Medical Law Review relating to the St George ’s case.
Article 5 ECHR – Deprivation of liberty – children and young persons – Article 8 ECHR – residence – COP jurisdiction and powers – interface with family proceedings
This is the sequel to Trust A v X and A Local Authority  EWHC 922 (Fam), summarised here. In the first instalment, a 15-year-old boy – who had been diagnosed with ADHD, mild learning disability, Asperger’s syndrome and Tourette’s syndrome – was under continuous supervision and control and not free to leave a psychiatric unit. But his parents were held to be able to consent on his behalf so he was not deprived of liberty for the purposes of Article 5 ECHR. This was an appropriate exercise of parental responsibility.
Discharged from hospital and having turned 16, D now resides at a residential unit, funded by the local authority, with his parent’s consent under s20 of the Children Act 1989. The main issues before the court:
- Whether his parents were still able to consent on his behalf;
- Whether the arrangements were imputable to the State.
All parties agreed that the Supreme Court’s nuanced acid test was met. The placement is set within its own grounds, with a main house and 12
- Alex remaining instructed on behalf of D, and in line with standard policy, he has not contributed to this Note.
self-contained residential units, each with its own fenced garden. D resides in one of them, House A, with three other young people of a similar age. The educational facility he attends is on site, where he is taught in a class with 4 other young people. The following circumstances therefore amounted to continuous supervision and control, with a lack of freedom to leave:
“D has his own bedroom. All external doors are locked and D is not allowed to leave the premises unless it is for a planned activity. D receives one-to-one support throughout his waking day, and at night, the ratio of staff to students is 2:1. He is not initially allowed unaccompanied access to the community.
D attends school every weekday from 8:45am to 2pm. He then eats his lunch on return to House A. He will then get changed and partake in leisure activities. Currently every Thursday afternoon D attends swimming and will eat his dinner outside of House A with staff.
House A has all entrances and exits to the building locked by staff. When wishing to go out into the garden D needs to request a staff member to open the door. These doors are sometimes left open when there is a group leisure activity in the garden.
D will be having contact with his parents each Saturday for up to 5 hours. Currently his parents have been visiting for 3 hours as D does get increasingly anxious during this time. There have been no significant issues since D’s move to Placement B.”
Valid (parental) consent?
Despite the Official Solicitor’s attempts to persuade him to reverse himself, Keehan J remained of the view that, whilst D was under 16, his parents could consent to his hospital
confinement if that was an appropriate exercise of parental responsibility. Crucially, it was held that the assertion of Thorpe LJ in RK v BCC and Others that ‘a parent may not lawfully obtain or authorise the deprivation of liberty of a child’ was unsupported by authority. In particular, it was not supported by Nielsen (which should be confined to its facts) nor in any other ECtHR, or binding or relevant domestic, decision. What was an appropriate exercise of parental responsibility would be influenced by D’s conditions:
“109. Thus, D’s diagnosed conditions, were a very material factor in determining which decisions fall within the zone or scope of parental responsibility. D’s limited ability to make decisions on his own behalf was a material factor in determining the scope or zone of parental responsibility.
110. On the facts of Trust A v X, especially the loving and caring relationships that his parents had with him and the close working relationship they enjoyed with D’s medical and other professions, I considered their decision to consent to D’s confinement in Hospital to be a proper exercise of parental responsibility. To have held otherwise would, in my judgment, have resulted in unwarranted and
u nn ec es sa ry s ta te in terf eren c e in D’s an d h is
p a ren ts’ fa mily lif e. ” (emphasis added)
However, once D turned 16, all things changed. For his parents could not consent on his behalf. Parliament had chosen to distinguish the legal status of those (a) under 16, (b) aged 16 and 17, and (c) adults (para 64 and 103). For example, incapacitous 16 and 17 year olds are within the remit of the MCA but an incapacitous person under 16 is generally excluded:
“105. In the premises, and whilst acknowledging that parents still have parental responsibility for their 16 and 17 year old
children, I accept that the various international conventions and statutory provisions referred to, the UNCRC and the Human Rights Act 1998, recognise the need for a greater degree of respect for the autonomy of all young people but most especially for those who have attained the age of 16 and 17 years. Accordingly, I have come to the clear conclusion that however close the parents are to their child and however cooperative they are with treating clinicians, the parent of a 16 or 17 year old young person may not consent to their confinement which, absent a valid consent, would amount to a deprivation of that young person’s liberty.
115. I am satisfied that young people of 16 or 17 years are entitled to the full protection of their Article 5(1) rights irrespective of their capacity to consent to their treatment or their living arrangements.”
The local authority contended that the effect of the parents’ consent under s20 of the Children Act 1989 meant that D’s placement and confinement were not imputable to the state. This was rejected by the court:
“131… this local authority identified the unit, assessed D’s needs and care regime, approved the package of care proposed by the unit and the regime under which D would reside there and the fact that it pays all the costs of his placement and education at the unit.
132. In no sense at all could this set of circumstances be considered a purely private arrangement with no state involvement. The role of the local authority in establishing and maintaining D’s placement is central and pivotal.”
In the alternative, if the confinement was purely private, the State was indirectly responsible for it because the local authority’s positive Article 5 obligations were engaged. It had to make an application to the court to determine whether D was deprived of his liberty and if so, to obtain authorisation for its continuance.
The altar of resources
The local authority stressed that the outcome of this decision had significant resource implications for this and all local authorities nationally. But the argument was rejected:
“137. The issue of the resource implications is a matter for the local authority and, ultimately, the Government; it is not, should not and, in my judgment, cannot be a relevant consideration for this court.
138. The protection of the human rights of those with disabilities or the vulnerable members of our society, most especially in respect of the protection afforded by Article 5 (1), is too important and fundamental to be sacrificed on the altar of resources.”
To summarise the current state of the law:
- Adults who are confined and lack capacity require Article 5 safeguards;
- For 16 and 17 year olds who are confined and lack capacity (or do have capacity and refuse), those with parental responsibility cannot give valid consent: Article 5 safeguards are required;
- For those under the age of 16 who are confined and lack capacity (or refuse to give it), parents can give valid consent if that is an
appropriate exercise of parental responsibility;
- For all those under 18 under an interim or final care order who are confined and lack capacity, Article 5 safeguards are required (following A Local Authority v D and others  EWHC 3125 (Fam)).
As a matter of legal principle, the fact that consenting to the confinement of someone who is 15-years-and-364-days-old can be within the scope of parental responsibility but a day later it cannot, may seem artificial. But Parliament has conferred a different legal status on the latter. So too, however, has Parliament decided that parental responsibility extends up to the age of
18. And it is instructive to note that parental responsibility pursuant to a care order cannot provide valid consent to confinement at any age. Moreover, even for those under 16 who are not under care orders, an inappropriate exercise of parental responsibility will not provide valid consent to confinement. But perhaps the 16th
birthday aims to strike a fair balance between Articles 5 and 8. For the lower the threshold for Article 5, the greater the interference there will be with Article 8.
This exposure of the Teen Bournewood Gap will present similar challenges to children and transition services and guardians as that currently being felt by adult services. Where care orders or parental responsibility do not cover a child’s or young person’s confinement, separate legal proceedings will be required to authorise the resulting deprivation of liberty. The Court of Protection is feeling its way with Re X and COPDOL10 for those aged 16 and over. The inherent jurisdiction is likely to experience a similar fate as it strives to determine an Article 5 compliant procedure for those under 16.
WBC v Z & Ors  EWCOP 4 (Cobb J)
Mental capacity – assessing capacity – contact – residence
This case concerned a 20 year old woman with Aspergers syndrome and an IQ in the range 70-
- In June 2014 the local authority where Z lived
issued proceedings in the Court of Protection seeking declarations as to Z’s capacity to decide where to live, what care to receive, and what contact to have with others. The local authority’s concerns for Z arose in circumstances where she had engaged in risky behaviour and there was a genuine concern about sexual exploitation. The court held a 2 day hearing to determine Z’s capacity. The local authority relied on a report by an independent psychiatrist, which, by the time of the hearing, was over a year old. The psychiatrist had concluded that Z was unable to identify risks to herself from social situations and over-estimated her ability to keep herself safe. It was suggested that Z might acquire capacity if she had a period of stability in her life during which she engaged with professional support. By the time of the hearing, Z’s risky behaviour had decreased. She had received some support from a care agency, although she felt that it was not needed and that the care workers talked down to her. The court heard from Z in person, and was satisfied that “the passage of time and Z's greater maturity, coupled with some support from Dimensions and enhanced self-esteem through her music, Z appears to have matured, learned from her mistakes, and developed sufficiently in her capacity to make relevant decisions, and keep herself safe.” The presumption of capacity was
not rebutted, and the declarations sought by the local authority were refused. The judge concluded (at paragraph 70):
“I have conscientiously cautioned myself against considering outcome when determining Z's functional ability; I repeat this point, as I am conscious that Z is a vulnerable young person who deserves to have, and should be persuaded to receive, support from adult social services going forward. It is tempting for the court to take a paternalistic, perhaps overly risk-averse, approach to Z's future; but this would be unprincipled and wrong. I am satisfied in any event that Z currently has a reasonably fulfilling life, which enjoys; she has a loving relationship with her mother who currently cares for her well and who, I hope, could be encouraged to do so for a while longer while Z grows further in maturity and confidence.”
This case illustrates a relatively common difficulty for local authorities with safeguarding responsibilities – deciding what amounts to unwise decision-making, and what amounts to incapacity. In cases of borderline or mild learning disability and disorders such as Aspergers, the dividing line can be very hard to pin down, particularly when it is clear that the individual is repeatedly placing themselves at significant risk of harm. The court noted that just because Z had engaged in risky behaviour, this did not in itself demonstrate that she lacked capacity. In fact, evidence as to one potentially dangerous trip that Z had made to meet friends she had made online, suggested on the contrary that Z did appreciate risks, as she had been able to identify the steps she had taken to mitigate risk, even though she decided to make the trip. The court in this case was not critical of the local authority for bringing proceedings when it did, but emphasised the
importance of reviewing capacity in such cases, and the value of hearing oral evidence from the individual herself.
In Re SH  EWCOP 2, Senior Judge Lush has reminded us that:
34. There is usually no need to appoint a deputy for personal welfare because of the provisions of section 5 of the Mental Capacity Act 2005, which were described by Professor Peter Bartlett, the author of Blackstone's Guide to the Mental Capacity Act 2005, as "the least formalistic and most innovative of the legal devices in the Mental Capacity Act."
35. The gist of these provisions is that people who provide care for someone who lacks capacity are protected from liability for so doing, provided they act in the best interests of the person concerned and provided they don't act negligently.
36. In addition, section 16(4) of the Act provides that when deciding whether it is in a person's best interests to appoint a deputy,
"the court must have regard to the
- a decision of the court is to be preferred to the appointment of a deputy, and
- the powers conferred on a deputy
should be as limited in scope and duration as is reasonably practicable in the circumstances.”
37 Generally speaking, it is impracticable to apply section 16(4) in property and affairs cases, but in personal welfare cases, the court can and does apply section 16(4) quite rigidly.
Whilst for reasons that do not need detain us, Senior Judge Lush revoked a health and welfare LPA, he declined to appoint a deputy on the basis that:
Routine decisions concerning Sybil's day-to- day care can be made by Fatima as her carer. Decisions about her medical treatment should be made by the health care professionals, who will no doubt consult Fatima and Sybil's three sons. If there is any disagreement, an application can be made to the Court of Protection. Accordingly, notwithstanding the revocation of the LPA for personal welfare, I do not propose to appoint a personal welfare deputy to replace the attorney.
We covered the decision of Charles J in MM at the end of last year, in which he held that a person with the requisite capacity to do so can consent to conditions imposed in a conditional discharge which amount (objectively) to a deprivation of his liberty. He has refused permission to appeal to the Secretary of State  UKUT 37 (AAC), although on the basis that the application should be more properly considered by the Court of Appeal in light of the fact that the grounds of appeal raise issues going significantly further than those concerned with restricted patients. As he noted, the first ground of appeal, namely that he was wrong to find that the FTT has the power to impose conditions on a conditional discharge of a restricted patient that when implemented will create an objective deprivation of liberty, implied that (1) the Secretary of State also has no such power under
s. 42 of the MHA; (2) a responsible clinician also has no such power and so has no power to include such conditions in a community
treatment order (a CTO) under s. 17B of the MHA, and (3) a guardian cannot pursuant to s. 8 of the MHA require a person to live at a place when his or her care plan includes conditions that objectively deprive the person of their liberty (unless such a deprivation of liberty has been already authorised under the Mental Capacity Act 2005 (the MCA) applying different tests to those applied by MHA decision makers). He noted that the logic of this to put “significant difficulties in the way of implementing the underlying purpose of the MHA to: (1) promote a move of a patient from detention in hospital towards him or her living in the community, whilst (2) providing the necessary protection of the public and the patient that his or her history indicates is needed”, and that it would lead “to what many would consider to be the counter intuitive result that a breach of a patient’s Convention rights thwarts the implementation of a conditional discharge or a CTO (or a direction by a guardian as to where the person should live) that: (i) is in the best interests of the relevant patient, and (ii) promotes that underlying purpose of the MHA because the implementation of the relevant conditions is or would be a breach of those Convention rights (in particular Article 5, but potentially also Article 6, 8 and 14) and so unlawful.” Charles J made a number of observations as to what he would like to happen in the event that the Court of Appeal were to be invited to grant permission:
35. In my view, if permission to appeal is given the wider implications on the day to day operation of the MHA warrant directions being given to ensure that so far as possible they are covered by the appeal. The funding and so representation difficulties for individuals like MM in arguing such wider issues are notorious.
- If permission is given the uncertainties this will cause in the implementation of the MHA by hospitals and tribunals will be considerable. This could have a damaging impact on a number of patients and so if the Court grants permission I invite it to ensure that the appeal is expedited.
- Also I invite the Court to raise with the parties whether any of them would seek to reserve a challenge to the decision of the Supreme Court in Cheshire West in the context of decisions made under the MHA or more generally.
We were interested to read that the Supreme Court ruling in P & Q v Cheshire West  UKSC 14 has led to a 16-fold increase in DoLS caseload in Wales last year. Figures from England showed that there had been a tenfold increase. The Care and Social Services Inspectorate for Wales has raised questions over whether services had enough staff to cope and whether delays progressing cases were impacting patients. The continuing pressure on services means that all
eyes4 are firmly fixed on forthcoming
recommendations from the Law Commission to reform the legal framework for deprivations of liberty. For the full story, see the article in Community Care.
- Apart from those of Alex, who is up to his eyes on working with the Law Commission on the recommendations!
Deprivation of Liberty: Collected Guidance The Law Society (1st Edition 2016)
The Law Society has published in hard copy an updated version of its Guidance (Identifying a Deprivation of Liberty: a Practical Guide, 2014), entitled Deprivation of Liberty: Collected Guidance. I must confess to having had a hand in writing parts of the Guidance and the new case law update and what follows in therefore more by way of information than a review of the book.
The Guidance was originally commissioned by the Department of Health following the Supreme Court judgment in Cheshire West. The Guidance is published online.
The aim of the book is to present guidance on deprivation of liberty from a variety of sources in a single book that can be kept readily at hand. This book, like the Guidance, is designed to help professionals to understand the legislation and case law and apply it to the relevant circumstances in order to assess whether or not a person is likely to be deprived of their liberty.
The book contains not only the Law Society's Guidance on Identifying a Deprivation of Liberty (including a new case law update) but also further guidance such as:
- Mental Capacity Act 2005: Deprivation of Liberty Safeguards Code of Practice
- Extracts from the Mental Capacity Act 2005 Code of Practice and Mental Health Act 1983 Code of Practice
- Other relevant guidance and advice.
“Use or Weigh? or Use and Weigh?”
– a response by Alastair Pitblado, the Official Solicitor to the Senior Courts
[In the December 2015 Newsletter we published a guest commentary by Wayne Martin and Fabian Freyenhagen of the Essex Autonomy Project on the C case, and specifically as to whether the test is (or should be) ‘use or weigh’ or ‘use and weigh.’ The Official Solicitor, Alastair Pitblado, has sent this response which we are delighted to publish. It may well be that this dialogue is continued in a subsequent issue – and we always welcome proposals for guest commentary upon cases or issues]
I have great respect for Wayne and his colleagues at the EAP but the duty of the interpreter of a statute “is to arrive at the legal meaning of the enactment, which is not necessarily the same as its grammatical meaning. This must be done in accordance with the rules, principles, presumptions and canons which govern statutory
interpretation”.5 This is supplemented by the
need for the interpreter to have, or be advised by someone who has, the necessary legal knowledge.6
The Note suggests that Mr Justice MacDonald’s analysis of section 3(1)(c) is incorrect as a matter of logic. I am not qualified to comment about formal logic but I suggest that the legal analysis was clearly correct. The analysis is a matter of statutory interpretation not formal logic.
First, however, there is the question, also adverted to in the Note, of why there is no “or” between section 3(1)(a) and (b) or (b) and (c). The
“Office of the Parliamentary Counsel Drafting Guidance”7 states
“3.7 CONJUNCTIONS BETWEEN PARAGRAPHS
“And” and “or”
- Ensure that it is clear whether paragraphs are intended to operate cumulatively or instead as alternatives.
- Often it will be sufficient to put the appropriate conjunction at the end of the penultimate paragraph and rely on the implication (in the absence of a contrary indication) that each of the preceding paragraphs is separated by the same conjunction.
- However, this makes the reader wait until then to know whether the paragraphs are cumulative or alternative and may be unhelpful with a long list of paragraphs.
3 .7 .4 It is o f co urs e p os s ible to sa y “ an d” o r
“ o r” a t th e end of each pa rag rap h. Tha t can
h o wever b e cu mbers o me”
The list which the paragraphs of the subsection constitute is short, and no contrary indication is discernable, so I suggest that it is clear that the paragraphs of the subsection should be read as if “or” were between them, the reasons being common drafting practice and the one for not doing so given in paragraph 3.7.4. To do so would be unnecessary and cumbersome.
The Note casts doubt on the authority of the
dicta of Dame Elizabeth Butler-Sloss P in Re MB quoted in its footnote 3. But section 3 MCA is based on the common law tests of capacity and the dicta remain good authority on this aspect of those tests. Support for these propositions can be found in:
- Re MM (an adult); A Local Authority v MM and another  EWHC 2003 (Fam),
 3 FCR 788. Mr Justice Munby (as he then was) at para. 74 said: “there is no relevant distinction between” the common law and the statute in this respect.
- RT v LT  EWHC 1910 (Fam). Sir
Nicholas Wall P at para. 51 said: “there will be cases in which it may be necessary to look at pre- or even post Act authority on the question of capacity”
- The approval by the Supreme Court in Dunhill v Burgin (Nos 1 and 2)  1 WLR 933 of Masterman-Lister v Brutton & Co (Nos 1 and 2)  1 WLR 1511.
So now to the proper legal interpretation of “use or weigh” in section 3(1)(c) MCA.
In another decision before the coming into force of the MCA8, Mr Justice Charles said that the patient lacked capacity because he “does not believe or accept a cornerstone of the factors to be taken into account in considering the information he has been given about his proposed treatment and is not able to use and weigh in the balance the relevant information as to his
proposed treatment in reaching a decision to agree to it or refuse it”, (my emphasis).
The Court of Protection Practice, 2015 Edn.,
- R (on the application of B) v Dr SS, Dr AC and the Secretary of State for Health  EWHC 86 (Admin).
suggests at para. 2.80 that before the coming into force of the MCA “[t]he courts further defined the process as the ability to weigh all relevant information in the balance as part of the process of making a decision and then to use the information in order to arrive at a decision. MCA 2005, s 3(1)(c) translates this former common law provision into statute. The focus of this element of the test is on the personal ability of the individual concerned to make a particular decision (such as the ability to weigh up any risks involved) and the processes followed by the person in arriving at a decision, and not the outcome” (my emphasis).
Indeed para. 4.21 of the statutory MCA Code of Practice (to which the Note refers) cites Re MB in a footnote and its para. 4.33 asserts “[t]he Act’s new definition of capacity is in line with the existing common law tests, and the Act does not replace them”.
The Comment to Section 364 (Composite expressions) of Bennion at “Overlap in meaning” pp. 1070-1071 also strongly supports the learned judge’s interpretation of section 3(1)(c). The work cites at p. 1070 from the speech of Lord Roskill9:
“..the argument in the court below appears to have proceeded on the basis that the words ‘repair or maintenance’ are used in antithesis to one another ..The two words are not used in antithesis to one another. The phrase is a single composite phrase ‘repair and maintenance’ and in many cases there may well be an overlap between them”.
The Note says that “a person must have all five abilities (i.e. be able to understand, retain, use, weigh, communicate) in order to pass the functional test for decision-making capacity”. The first point to make about the way that this is put
- ACT Construction Ltd v Customs and Excise Commissioners
 1 WLR 1542,  1 All ER 84.
is that a person does not have to pass any test to be treated as having decision-making capacity, see: section 1(2) MCA reinforced by sections 1(3) and (4), 2(3) and 3(2). A person must be assumed to have capacity unless it is established that they do not have capacity in accordance with the tests and applying the standard of proof set out in the MCA.
The Note continues “What, in particular, is meant by the terms ‘use’ and ‘weigh’? If those terms are effectively synonyms (or irredeemably ill-defined), then it does not much matter whether they are linked conjunctively or disjunctively. But if they are distinct concepts, then our interpretation of the functional test has the effect of setting the bar higher for decision-making capacity. In order to have the ability to make a decision for oneself at the material time, a person must be able to both to use and to weigh the information relevant to the decision”.
The passage just quoted needs some unpacking. It is a well-known principle of statutory construction that different words in the same statute have different meanings but that does not mean that they cannot overlap or that they must be construed as creating two separate provisions when linked disjunctively, see: Bennion’s Comment to its Section 364 (Composite Expressions) referred to above. I do not think that many lawyers would regard the words as “irredeemably ill-defined” as suggested. The penultimate sentence of the quotation repeats the incorrect suggestion that the person concerned has a bar to jump over before being treated as having decision-making capacity whereas it is the other way round as discussed above. Even the final sentence repeats by implication the mistake – the Act, as did the common law, requires that it must be established that the person lacks decision-making capacity. Because it is that way round the expression “use
or weigh” can entirely properly be construed and applied in the way clearly intended by Parliament. I can find no case before or after the MCA in which the court has construed “use or weigh” in the disjunctive way suggested in the Note as the correct interpretation of section 3(1)(c) MCA.
International Protection of Adults
Alex and Adrian will be participating in a seminar at the British Institute of International and Comparative Law on 11 February on Hague 35 and cross- border matters. More details are available on the BIICL website.
Alex will be chairing a session at the opening conference of this innovative
Alex Ruck Keene Victoria Butler-Cole Neil Allen
Annabel Lee Anna Bicarregui
Simon Edwards (P&A)
Guest contributor Beverley Taylor
Scottish contributors Adrian Ward
project launched by the Centre for Disability Law and Policy at NUI Galway entitled Voices of Individuals: Collectively Exploring Self-determination
(VOICES). The opening conference is on Friday 26 February 2016 in Dublin City Civic Offices, Dublin 8. Confirmed Speakers include: Professor Gábor Gombos, Mr Rusi Stanev, The Honorable Kristin Booth Glen, Professor Michelle Anderson and Professor Christopher Slobogin. For more details of this project, and to book, see here.
Palliative Care Conference
Alex will be speaking on the practicalities and realities of DOLS within palliative care practice at the 11th Palliative Care Congress in Glasgow on 11 March. For details, and to book see here.
Safeguarding Adults in Residential Settings
Edge DOLS Assessors conference
Alex will be speaking at Edge Training’s annual DOLS Assessors conference in London on 18 March. Other speakers include Mr Justice Peter Jackson. To details, and to book, see here.
and training events
If you would like your conference or training event to be included in this section in a subsequent issue, please contact one of the editors. Save for those conferences or training events that are run by non-profit bodies, we would invite a donation of
£200 to be made to Mind in return for postings for English and Welsh events. For Scottish events, we are inviting donations to Alzheimer Scotland Action on Dementia.
ESCRC seminar series on safeguarding
Alex is a member of the core research team for an-ESRC funded seminar series entitled ‘Safeguarding Adults and Legal Literacy,’ investigating the impact of the Care Act. The theme for the seminars in the first year of this three years series is ‘Making Law’. The second and third seminars in the series will be on “New” categories of abuse and neglect’ (20 May) and ‘Safeguarding and devolution – UK perspectives’ (22 September). For more details, see here.
Peter Edwards Law Training Spring 2016
Peter has announced the spring series of his (rightly) very well-regard series of training events on matters mental capacity and mental health related. For full details, see here.
Our next Newsletter will be out in early March. Please email us with any judgments or other news items which you think should be included. If you do not wish to receive this Newsletter in the future please contact firstname.lastname@example.org.
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Alex Ruck Keene Victoria Butler-Cole Neil Allen
Annabel Lee Anna Bicarregui
Simon Edwards (P&A) Scottish contributors
Adrian Ward Jill Stavert
CoP Cases Online
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Alex Ruck Keene: email@example.com
Alex is recommended as a ‘star junior’ in Chambers & Partners 2016 for his Court of Protection work. He has been in cases involving the MCA 2005 at all levels up to and including the Supreme Court. He also writes extensively, has numerous academic affiliations and is the creator of the website www.mentalcapacitylawandpolicy.org.uk. He is on secondment for 2016 to the Law Commission working on the replacement for DOLS. To view full CV click here.
Victoria Butler-Cole: firstname.lastname@example.org
Victoria regularly appears in the Court of Protection, instructed by the Official Solicitor, family members, and statutory bodies, in welfare, financial and medical cases. Together with Alex, she co-edits the Court of Protection Law Reports for Jordans. She is a contributing editor to Clayton and Tomlinson ‘The Law of Human Rights’, a contributor to ‘Assessment of Mental Capacity’ (Law Society/BMA 2009), and a contributor to Heywood and Massey Court of Protection Practice (Sweet and Maxwell). To view full CV click here.
Neil Allen: email@example.com
Neil has particular interests in human rights, mental health and incapacity law and mainly practises in the Court of Protection. Also a lecturer at Manchester University, he teaches students in these fields, trains health, social care and legal professionals, and regularly publishes in academic books and journals. Neil is the Deputy Director of the University's Legal Advice Centre and a Trustee for a mental health charity. To view full CV click here.
Annabel Lee: firstname.lastname@example.org
Annabel appears frequently in the Court of Protection. Recently, she appeared in a High Court medical treatment case representing the family of a young man in a coma with a rare brain condition. She has also been instructed by local authorities, care homes and individuals in COP proceedings concerning a range of personal welfare and financial matters. Annabel also practices in the related field of human rights. To view full CV click here.
Anna Bicarregui: email@example.com
Anna regularly appears in the Court of Protection in cases concerning welfare issues and property and financial affairs. She acts on behalf of local authorities, family members and the Official Solicitor. Anna also provides training in COP related matters. Anna also practices in the fields of education and employment where she has particular expertise in discrimination/human rights issues. To view full CV click here.
Simon Edwards: firstname.lastname@example.org
Simon has wide experience of private client work raising capacity issues, including Day v Harris & Ors  3 WLR 1560, centred on the question whether Sir Malcolm Arnold had given manuscripts of his compositions to his children when in a desperate state or later when he was a patient of the Court of Protection. He has also acted in many cases where deputies or attorneys have misused P’s assets. To view full CV click here.
Adrian Ward email@example.com
Adrian is a practising Scottish solicitor, a consultant at T C Young LLP, who has specialised in and developed adult incapacity law in Scotland over more than three decades. Described in a court judgment as: “the acknowledged master of this subject, and the person who has done more than any other practitioner in Scotland to advance this area of law,” he is author of Adult Incapacity, Adults with Incapacity Legislation and several other books on the subject. To view full CV click here.
Jill Stavert: J.Stavert@napier.ac.uk
Professor Jill Stavert is Reader in Law within the School of Accounting, Financial
Services and Law at Edinburgh Napier University and Director of its Centre for
Mental Health and Incapacity Law Rights and Policy. Jill is also a member of the
Law Society for Scotland’s Mental Health and Disability Sub-Committee, Alzheimer
Scotland’s Human Rights and Public Policy Committee, the South East Scotland
Research Ethics Committee 1, and the Scottish Human Rights Commission
Research Advisory Group. She has undertaken work for the Mental Welfare
Commission for Scotland (including its 2015 updated guidance on Deprivation of
Liberty). To view full CV click here.