Y County Council v ZZ (no neutral citation, 25 July 2012)
Article 5 – deprivation of liberty
This case, a transcript of which has only recently become available on the MHLO website, concerned a man with mild learning disabilities who also had what was described as a ‘strong interest in deviant sexual activity with children’. He was under guardianship, and was required to live at the J placement. There were extremely severe restrictions on his freedom at the placement, which were authorised by way of a standard authorisation. As the judge noted, explaining his decision that ZZ was deprived of his liberty there: (a) the J is a locked environment; (b) he is checked hourly throughout the day; (c) he is not allowed to leave the property, save as agreed by the staff, and then only on the basis of being accompanied by a one-to-one escort who must either walk alongside him or closely behind him at all times; (d) he consistently expresses his objections to residing there; (e) he consistently objects in writing to the restrictions upon him; (f) his use of his mobile telephone is restricted to 1 hour per day; (g) he is not at present allowed unsupervised access to the garden because of the children living in the adjacent property; (h) the purpose of the restrictions is, in significant part, designed to protect others in the community and, in particular, children as well as to protect ZZ.
The judge held that although the court had no jurisdiction to determine where it was in ZZ’s best interests to live, by virtue of the guardianship order being in place, it could determine whether his deprivation of liberty was lawful. Moor J held that the measures were in ZZ’s best interests, notwithstanding his objections, because “they are designed to keep him out of mischief, to keep him safe and healthy, to keep others safe, to prevent the sort of situation where the relative of a child wanted to do him serious harm, which I have no doubt was very frightening for him, and they are there to prevent him from getting into serious trouble with the police.”
One point that does not appear with perhaps sufficient clarity from the transcript, and which caused the editors to pause on first reading, is the apparent acceptance by the Official Solicitor of the restrictions on behalf of ZZ. We understand, however, that the Official Solicitor sought to test the local authority’s evidence and, in particular, the proposition that the proposals advanced represented the least restrictive option, and actively advanced ZZ’s own wishes (supported, insofar as possible, by the evidence). We would have been concerned had the Official Solicitor adopted any other course of action on the particular facts of this case.
The decision is, however, curious in two other respects.
First, there was no analysis of any evidence that ZZ lacked capacity to consent to his care arrangements. ZZ apparently had capacity in other areas of his life – notably, he was married. There was some discussion of his capacity to litigate, which accepted expert evidence that one might think fell into the trap identified in PC and NC v CYC  EWCA Civ 478 of conflating unwise decisions with an inability to make a decision because of a mental impairment. The expert evidence accepted by the court regarding litigation capacity was that “[o]n balance, given ZZ’s learning disabilities, his memory problems and his problems with social interaction and considering the complexity of the current court proceedings, I conclude that he does not have capacity to litigate and he, therefore, requires assistance from the Official Solicitor” and that ZZ was “not able to give due consideration to all the relevant information required for the decision-making process, specifically, that he is over-estimating his abilities to manage his risks and under-estimating the importance of staff support.” which led the judge to say “[i]n other words, he cannot weigh the relevant information in the balance.” The reliance on P not being able to give ‘due’ consideration, and having a different view of the care he requires from the professionals, should perhaps have caused a red flag to be waved and some further careful consideration given to whether P did in fact lack capacity to consent to his care arrangements and his deprivation of liberty.
Second, given that ZZ was at obvious risk of causing harm and being harmed by others as a result of his sexual proclivities the protection imperative could not have been stronger. It is not remotely surprising that the court approved arrangements for his care that kept him safe, but it is not clear that the requirements of the MCA 2005 as regards his lacking capacity in relevant respects were actually fulfilled. It is no doubt in the ‘best interests’ (broadly defined) of any potential sex offender to be kept under such close supervision that no opportunities for offending behaviour arise, but that is not how society functions in respect of those without learning disabilities. The court adopted a ‘no risk’ approach to ZZ’s care, with no mention of the principle of least restriction, and on its face little consideration of the effect on ZZ of the continued imposition on him of restrictions to which he strongly objected